Tag Archives icj

What can be done to address healthcare violations in Gaza?

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On 29 February 2024, I presented in a panel at the Erasmus Medical Centre in Rotterdam on “The right to healthcare under fire”. The event was organised by Artsen Voor Gaza (Doctors for Gaza) a Dutch group of physicians, medical students and medical researchers. Alongside compelling presentations from Dr. Loes de Kleijn, Dr. Kamal El Mokayad and Haya Al Farra, I spoke of the legal context of the ongoing, genocidal violence in Gaza and more importantly what can be done.

CC BY-SA 3.0 via Wikimedia Commons

The War in Gaza has a context

Since the attacks in Southern Israel and Israel’s operation in Gaza called “Iron Swords” from October 2023, Israel has destroyed the majority of Gaza’s infrastructure, including its medical infrastructure. As I wrote already on 12 October 2023, the war in Gaza has an important context. Unfortunately, as the Israeli Professor of History Ilan Pappe has observed, there is an active effort to de-historicize the conflict, which serves as a backing to Israel in its genocidal violence against Palestinians in Gaza.

Despite Israel’s withdrawal of settlements and redeployment of forces in 2005, Israel has continued to occupy the 365 km2 territory of Gaza, including mounting a siege that has severely restricted basic needs. The majority of Gazans are under the age of 20 and have never left the territory. Most are refugees (and their descendants), forcibly displaced from their homes in 1948, which are maintained by what a Palestinian Professor of History, Nur Masalha describes as a politics of denial.

From a humanitarian angle, most Gazans have been largely dependent on direct United Nations assistance ever since the ‘Nakba’ in 1948, and in particular the United Nations Relief and Works Agency (UNRWA). This makes it all the more concerning that states have been seeking to defund UNRWA, following (as yet unfounded) Israeli allegations that its staff were complicit in the October attacks, a move described as “reckless” by a senior, Washington-based analyst.

 

“I am so scared”

So often we hear Palestinians referred to as statistics. While this potentially enables people to process the horrors of what is happening, as the poet and commentator Ramsey Nasr reminds us, those who have been killed had names, and we must remember them.

Two names and stories of two Gazans among the more than 30.000 (at the time of writing) who have been killed since October 2023 were recalled during the Event at Erasmus Medical Centre. One who was remembered was Hind Rajab. She was 5 or 6 years old when her family car came under fire by Israeli soldiers in Gaza City on 29 January 2024, she made a phone call to the Palestinian Red Crescent. “I am so scared,” she said. “Call someone to come get me, please.” Sadly, after more than two weeks of frantic efforts to reach her, Hind’s body was recovered a few days later on 3 February, along with those of relatives and two Red Crescent rescue workers that had been sent to find her. Their family car was riddled with bullets.

Another Gazan who was remembered was Refaat Alareer, a Palestinian Professor, poet and activist from Gaza who taught English literature at the Islamic University of Gaza.

 

The Functions of International Law in relation to Atrocity Crimes

The case brought by South Africa against Israel on genocide charges has raised the prospect of international law, and international legal institutions, finally serving to help end the bloodshed and longstanding impasse between Israel and the Palestinians. In this context, it is worthwhile to understand the functions of international law in seeking to prevent, protect against and seek accountability for atrocity crimes.

First, in its regulatory function, international law sets limits on military conduct, in particular to prevent the commission of atrocity crimes, including the crime of apartheid and the crime of genocide. Secondly, in its protection function, international law aims to protect civilians and humanitarian workers (and civilian and humanitarian infrastructure). Finally, and perhaps most importantly in the present context, international law has an accountability function; this comprises a collective obligation to investigate and prosecute individual violators, including war crimes directed against civilian medical personnel and the crime of genocide.

Accordingly, various, specific measures protect medical personnel and infrastructure, including Article 19 of the Geneva Conventions that they “may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict”. Article 8 of the Rome Statute of the International Criminal Court provides that individuals who are found to have been “intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” have committed war crimes.

 

Preliminary Measures by the International Court of Justice

After two days of oral hearings on 11 and 12 January 2024 from legal teams representing South Africa and Israel, the ICJ came back on 26 January with a set of Provisional Measures, as requested by South Africa. Each of the Provisional Measures were separately voted upon, all of which received an overwhelming majority, including the following:

“The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”

In justifying these measures, the Court “took note” of several statements by United Nations officials, including a statement made by the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr Martin Griffiths, on 5 January 2024:

“Gaza has become a place of death and despair… Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.  A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos… “the health-care system in Gaza is collapsing”.

 

So, what can be done, beyond the Courts?

It’s hard not to feel sceptical about the potential of the Courts to change Israel’s behaviour. Israel’s responses since the 26 January 2024 Preliminary Measures were issued suggest that the ICJ has little to no deterrent effect. In fact, Israel not only failed to comply with these preliminary measures, it actually stepped up its military campaign. 5-year old Hind died a mere 3 days after the ICJ issued its judgement.

But international law has relevance beyond the courts. As legal mobilization researchers argue, international law can be seen as not only an imperial project, as Erakat eloquently explains, but also as a legitimate source of disruption, resistance and liberation.

For example, international law represents a legitimate basis for boycotting corporations that are complicit in atrocity crimes, such as Israeli Universities and McDonalds, just as was done during the South African anti-apartheid movement.

Another form of legal mobilization, as Dr. Claudia Saba has argued, is the delivery of humanitarian aid, as the “Free Gaza” movement have been doing, using small civilian boats to try and alleviate the desperate circumstances caused by Israel’s decades-long siege of Gaza.

Further forms of legal mobilization are protests and sit-ins, as the Public Interest Litigation Project has been preoccupied with, and what Doctors for Gaza in The Netherlandshave been engaged with since October 2024.

In other words, addressing violations of the right to health care through legal mobilization involves more than just “winning” in court. It takes on many different forms. These different forms of legal mobilization serves to galvanise social justice struggles.

What legal mobilization will not do is bring back the hundreds of health workers who have been killed in Gaza, let alone Hind Rajab or Refaat Alareer. However, it may serve to hold those responsible for killing them.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Dr. Jeff Handmaker is Associate Professor of Legal Sociology, based at the International Institute of Social Studies in The Hague.

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When genocide is reduced to a war of emotions: Personal reflections on academic debates and the war in Palestine

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Recently, universities and other institutions in the Netherlands have put a lot of focus on emotions of people in Europe when discussing the ongoing war on the Palestinians in Gaza. In this blog, Lecturer and Researcher Dina Zbeidy points out that while it is important to create space for emotions, this focus has the danger of shifting attention away from the actual atrocities happening on the ground, the topic these institutions should mainly talk about.

Photo by Mohammed Abubakr on Pexels

In a meeting about organizing events on the current war on Gaza, I noticed how I flinched and had an almost allergic reaction to the (over)use of the word ‘emotions.’ I have been reflecting on my reaction for the last few days to try and understand what exactly bothered me so much, as it was pointed out to me during that meeting that I myself have been very emotional these last three months.

And that is true. I have been an emotional wreck. How can you not be, when you wake up to the images of grey body parts sticking out of concrete rubble and go to bed with images of screaming burnt children and a more families wiped off the face of the earth.  I have felt it all: anger, sadness, frustration, powerlessness, exhaustion.

 

Reducing talking about war crimes to just emotive discussions

Recently, the Dutch minister of education sat with students and staff of academic institutions to discuss how best to organize and talk about what is happening. He urges academic institutions to keep the discussions open, as “you provide many students with an outlet to express their feelings and emotions”. He continues to say: “keep sharing knowledge, have discussions, and create understanding for each other’s perspective.”

From the first sentence, one can deduce that these events, whether panels, teach-ins, sit-ins or other activities, are mainly important as an outlet for emotions – more so than talking about facts on the ground and educating students in the Netherlands on grave ongoing violations of human rights and international law.

(Another thing one can deduce, that I will not address further here, is that talking about the war is framed as a ‘difference in perspective’).

During our meeting, we all agreed that there should be space for emotions. What I think is harmful, however, is reducing the war to a war of emotions (of some) rather than a war on Palestinians.

One example is the following argument that has been repeated in front of me several times these last months: we should refrain from using the term , because it might be hurtful to some people.

The assumption usually being that ‘some people’ refers to Israelis in the Netherlands or Dutch people of Jewish background or with family in Israel.

In other words: talking about an ongoing genocide can be hurtful to the feelings of others. That we should be very careful how we talk about the actual loss of life of children, families, parents, and grandparent, and refrain from naming it by what it is, as the feelings of others might be hurt.

My frustration came largely by realizing that civilians being killed in the thousands have to compete with other people’s emotions, and that in educational and academic institutions, these emotions seem to have the upper hand.

Nevertheless, more than 800 genocide scholars have already warned of the possibility of genocide, and the International Court of Justice will deliver its ruling tomorrow (26 January) on  whether in the legal sense, we can speak of genocide.

 

There is a big difference between creating space for expressing and letting out emotions, and reducing the talk about an unfolding genocide to emotions. 

One great place for me to let out and share my emotions have been protests and demonstrations. How powerful it is to know that what you feel is shared by thousands of others. The aim of such events is to show the public, including politicians, that we, in the thousands and globally in the millions, want this war, and the ongoing colonization and oppression, to stop.

When I participate at events, mainly organized by students and staff at academic institutions, I have found myself several times in tears, unable to finish a sentence because of these overwhelming emotions. And I decided early on during this war that I will not force myself to hide and suppress these emotions, not anymore. I loved that people told me that they understood my emotions, and that I should not apologize for having and showing them.

Nevertheless, the content of my talks and my contributions is not on what the war does to my emotions, or anybody else’s emotions for that matter. The topic at hand is not that of (our – we here, safe in Europe) emotions, but about Palestine and the genocide of a people.

I hope that academics, journalists, researchers, teachers, and students, remain vigilant to this distinction. Don’t let the talk about emotions distract us from what we, as part of society, can and should contribute to: facts, analysis, studies, and academic debates.  And yes, there should always be space for emotions – but they should never be (mis)used to oppose, or be silent on, genocide.

Photo Credit: Mohammed Abubakr: https://www.pexels.com/photo/people-with-palestinian-flags-protesting-on-the-street-19028556/

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

 

Dr. Dina Zbeidy is a Dutch-Palestinian anthropologist. She is a social science lecturer and researcher at the Leiden University of Applied Sciences. Having conducted research on various topics including  Zionism, settler colonialism, displacement, human rights and development work, mainly in the Middle East, her current research focuses on human rights education in the Netherlands.

Are you looking for more content about Global Development and Social Justice? Subscribe to Bliss, the official blog of the International Institute of Social Studies, and stay updated about interesting topics our researchers are working on.

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Countering attempts to undermine the rule of law through lawfare in Suriname by Jeff Handmaker

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In November 2019, an all-women panel of judges presiding over a decade-long court martial in Suriname convicted Desiré Delano Bouterse, the country’s current president, for international crimes that include torture and extra-judicial executions. While legal mobilisation can legitimately be used to bring about justice, Bouterse and his supporters have used lawfare to try to prevent his trial from proceeding. The trial eventually took place and Bouterse was sentenced to 20 years in prison, while some of his co-accused were acquitted. Bouterse remains in office following the judgement, and it now remains to be seen whether legal mobilisation will triumph over ongoing attempts to use lawfare to undermine the rule of law.

The December Murders

Apart from its historic significance, the case against Bouterse and his co-accused for international crimes is a vivid illustration of the use of lawfare and legal mobilisation, both of which I have been following closely as an independent trial observer and as a researcher generally. The case concerns events that took place in December 1982, referred to by many as the so-called December Murders, at the time when Bouterse served as a commander in the Suriname army after having participated in a military coup. Various accounts of the events reported that 16 men, a combination of civilians and soldiers, all of whom were openly critical of Bouterse, were arrested in the middle of the night, brought to a military base at Fort Zeelandia (dating back to the colonial era), lined up against a wall, and shot. The bodies were brought to a local hospital for investigation, where it became evident that the men who perished had not only been executed without a trial, but had also been tortured.

A trade unionist who managed to survive the incident, Fred Derby, later filed an official statement about what had happened in 1982, which became a crucial part of the evidence presented once the court martial was established in 2007. Three years later, in 2010, despite the ongoing trial, Bouterse was elected president, a position he subsequently used to hinder the trial’s development.

At the time the court handed down its judgement in November 2019, which had been twelve years in the making, Bouterse was abroad on a trade mission in China. He returned to Suriname a few days later, perhaps after obtaining confirmation that a warrant for his arrest had not been issued, receiving a large and enthusiastic welcome at the airport from his supporters. Statements made through his lawyer questioning the legitimacy of the court’s judgement, and which undermine the rule of law, have been published in the local media.

Using lawfare to bend the law in one’s favour

As head of a trial observation mission appointed by the International Commission of Jurists (ICJ) in Geneva, I have been following this trial closely since May 2012. The case has revealed several examples of lawfare, whereby numerous law-based manoeuvres on the part of Bouterse himself, as well as his legal representative, his appointed officials, and members of his political party in the legislature have sought to undermine the rule of law in Suriname, and, more specifically, to stop the trial from taking place.

The court martial took over a decade to issue its judgement, during which period there was extensive use of lawfare to either delay or completely shut down the trial. These included legislating an Act of Amnesty (later declared by the court to be unconstitutional), ordering the prosecutor to suspend the trial, and otherwise seeking to interfere with the prosecution process through replacing the Minister of Justice. Neither of these lawfare efforts were successful and the court’s judgement stands.

The case has also revealed many examples of legal mobilisation, whereby various actors have played different roles to counter the use of lawfare and uphold the rule of law. The families of those who were murdered have continually campaigned to have Bouterse and his accomplices brought before an independent criminal tribunal. During the trial itself, international organisations such as the ICJ have called for the respect of international fair trial standards, and journalists (mostly local) have consistently sought to ensure that the case was correctly reported. In all instances, rigorous attention to the correctness of law-based arguments were a prominent feature during the trial that spanned several years; this proved to be an effective strategy, aimed at preserving the fair and equal application of justice and the rule of law in Suriname, values that are widely shared in the country following hundreds of years of colonial rule.

Reactions to the trial

While several prominent news outlets, including several in the Netherlands, as well as the Associated Press, Al Jazeera, the New York Times, and the BBC briefly reported on the judgement, the trial itself has not enjoyed much attention outside of Suriname. Inside Suriname, however, there have been extensive reactions from various actors who have been closely involved in the case, either seeking to uphold or undermine the rule of law.

Betty de Goede, a leader/founder of the Organisation for Justice and Peace (OJP) in Suriname, which represents many families of those who were killed in December 1982, observed at an inter-denominational service organised by the OJP that the rule of law held much value to the people of Suriname, and hence “the judgement (against Bouterse) cannot be ignored”. At the same service, Soeshila Baldew-Malhoe, a prominent Hindu theologian in Suriname, was more strident, declaring that while “Bouterse had no respect for the rule of law” he was warned that

… people must know that every action has consequences. Mr. Bouterse should have known then that the truth would one day come to light … it gives a good feeling to know that the rule of law is alive… everything depends on the rule of law, and when justice is given, everyone must adhere to it, regardless of the person’s social position.

Ignoring potential repercussions against them, the legal community in Suriname has been active and outspoken, including attorney Gerold Sewcharan, who represented Edgar Ritfield, one of Bouterse’s co-accused. Ritfield was one of those acquitted by the court, and characterised Bouterse as a “convicted felon”.

However, a warrant for Bouterse’s arrest has yet to be issued, and in the meantime, there have been efforts to politicise the judgement and undermine the judiciary. One of the main opposition parties, the “Democratic Alternative” (DA), published an Open Letter to the president, calling on him to resign. This has, however, not caused Bouterse to reconsider his decision to remain in power, nor has he lost credibility within the political party he chairs, the NDP, which has condemned the judgement as being “politically motivated”. Whatever happens next, it is certain that many more people, both in Suriname and abroad, will be following the outcome with considerable interest and anticipation.

Image Credit: sunsju on Flickr

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Holding Myanmar accountable for acts of genocide is just the start of a long process of justice for the Rohingya by Lize Swartz

Posted on 6 min read

Public hearings are currently underway at the International Court of Justice in The Hague, where Myanmar stands accused of committing genocide against the Rohingya minority after violent crackdowns since 2012 left thousands dead and forced more than one million Rohingya to flee the country. This follows shortly after the Minister of Justice of The Gambia at the International Conclave on Justice and Accountability for Rohingya held at the ISS in October declared that what has transpired in Myanmar over the past years must be named genocide and that The Gambia would lead efforts to hold the Myanmar state accountable through international legal mechanisms. However, this is just the first of several steps to ensure justice for the Rohingya—the human side of what has become a ‘refugee crisis’ needs to be acknowledged, writes Lize Swartz.

The desire to hold perpetrators accountable for crimes committed against the Rohingya[1], to improve the living conditions and well-being of Rohingya refugees[2], and to ensure their eventual safe return to Myanmar was unanimously expressed at the recent International Conclave on Justice and Accountability for Rohingya. At the conclave, a number of high-level dignitaries and specialists working on justice for the Rohingya at both the international and local level came together at the ISS in October this year to discuss key short-, medium- and long-term objectives in ensuring the eventual safe return of the Rohingya to Myanmar and ways in which to reach them.

His Excellency Abubacarr Marie Tambedou, Minister of Justice of The Gambia, at the conclave declared to a sizeable audience that The Gambia would lead the process of holding the Myanmar state accountable—a declaration that was enthusiastically welcomed by attendees as an important first step in ensuring justice for the Rohingya. The Gambia accordingly instituted proceedings [3] against Myanmar at the International Court of Justice, the principal judiciary organ of the United Nations, in November this year. Laetitia van den Assum, an independent diplomatic expert who was previously part of the Advisory Commission on Rakhine State and who also attended the conclave[4], told a Dutch news website that The Gambia had launched the application because the UN Security Council due to resistance from Russia and China had not undertaken any action in this regard over the past few years.

While the declaration of genocide and the filing of the recent application are steps in the right direction, the complexity of processes of ensuring justice and accountability have not been sufficiently recognized at the conclave, where discussions focused on holding perpetrators accountable and returning Rohingya refugees to Myanmar under safe conditions. Bangladesh, who has assumed a leadership role in housing Rohingya refugees, was praised at the conclave for its hospitality, while representatives of Bangladesh highlighted the difficulties of housing almost a million refugees.

The discussions made me wonder whether the humanity of the Rohingya is sufficiently recognized by those working on ensuring justice for them. In particular, the Rohingya genocide has become a ‘refugee crisis’, gaining increasing attention due to the sheer numbers of refugees residing in host countries. This is transpiring while the Rohingya in fact have been victims of policies of exclusion and direct violence within Myanmar for over forty years. It seems that it is only now that the issue is receiving attention—but perhaps for the wrong reasons.

At the conclave, it became clear that the Rohingya were seen as temporary residents hosted by benevolent neighbouring countries. However, it became evident during the conclave that repatriation is not straightforward, as changes in national policies, laws and leadership in Myanmar are crucial for the creation of conditions of safety and security as a sustainable solution to the long-term crisis. Conference attendees agreed that without such conditions, the cycle of violence and exclusion is likely to repeat itself as it has done before.

While the proceedings against Myanmar at the ICJ are a first step, host countries and the international community all have to come to terms with the fact that the process of ensuring justice could span several decades and that ongoing collaborative effort is required for the entire duration of the process. It is important to recognize the human side of the ‘refugee crisis’ and to ensure that besides holding perpetrators accountable through formal international legal mechanisms, the well-being of the Rohingya should be prioritized now—whether they are temporary or permanent residents of host countries. The following things should be kept in mind:

Bangladesh and other host countries are now the Rohingya’s home, and they may remain so for many years to come.

When humans settle somewhere, they grow new roots that anchor them to a place. The international community may not want to recognize that the Rohingya has already grown roots in host countries and that they will continue to do so until their return to Myanmar, if they choose to return. It is crucial for host countries to accept that the Rohingya might not be going anywhere anytime soon and that their integration into host communities is crucial, whether temporarily or permanently. Host countries have already been generous in providing resources and a safe space for the Rohingya, but they now needs to direct their gaze towards the social dimensions of well-being among the Rohingya, including the creation of a sense of belonging and the creation of education and employment opportunities by doing the opposite that the Myanmar state has done—by acknowledging the Rohingya minority as part of their society and accepting them despite their origin or citizenship status. At the conclave it became clear that the lack of access to education was one of the most pressing problems facing the Rohingya.

The Rohingya should acquire an understanding of the process of change, not only in repatriation, but also in holding the perpetrators responsible.

Importantly, the Rohingya also need to understand that their return to Myanmar, even though desired by some of them, may not take place in the coming year or years, which will help them make long-term decisions about where they could settle. CSOs and local grassroots actors working with Rohingya on the ground can play a crucial role in helping the Rohingya understand why the cogs are turning slowly and why their return to Myanmar is being delayed. In addition, information on the proceedings and outcome of pending ICJ or ICC cases will play an important role in the Rohingya’s gauging of the level of safety and security of Myanmar and, therefore, in their willingness to return to Myanmar when it is possible.

The process of justice and accountability does not end when the Rohingya return to Myanmar – it only begins then.

The long-term objective of helping the Rohingya deal with trauma should be highlighted; this shows dedication to the cause of the Rohingya and not just to addressing the immediate refugee crisis. A Truth and Reconciliation Commission, which was discussed at the conclave, is effective not only in gathering evidence of crimes against humanity, but also in helping victims of crimes against humanity deal with trauma. The wounds that have been created over the last forty years will not heal instantly, but they can heal more effectively with the creation and efficient functioning of such mechanisms and institutions that facilitate dialogue and interaction among all ethnic groups in Myanmar.

[1] Following violent crackdowns on the Rohingya starting in 2012, more than one million Rohingya have fled Myanmar, many to neighbouring country Bangladesh.

[2] At present, Cox’s Bazar near the Bangladesh-Myanmar border houses more than 700,000 Rohingya refugees in what has become a massive slum.

[3] According to ICJ Press Release No. 2019/47, available at https://www.icj-cij.org/en/case/178, The Gambia alleged “violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) through ‘acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group’ ”.

Image Credit: Zlatica Hoke on Wikimedia

16177487_1348685531818526_4418355730312549822_oAbout the author:

Lize Swartz is a PhD researcher at the ISS working on the intersection of sustainability and climate crises and the influence of power on understandings of and responses to such crises. She was a conference reporter at the International Conclave on Justice and Accountability for Rohingya.