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POPULAR ENFORCEMENT OF INTERNATIONAL LAW FROM VIETNAM TO GAZA  
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Jeremy Brecher
February 20, 2024
Labor Network for Sustainability
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_ The International Court of Justice has found that Israel’s
actions in Gaza may constitute genocide in violation of international
law. A US District Court has added, “It is every individual’s
obligation to confront the current siege in Gaza.” _

South Africa’s genocide case against Israel at the International
Court of Justice, the Hague on Friday 12 January 2024., ICJ, Wikipedia


 

In a decision issued January 31, the United States District Court for
the Northern District of California found that there is a credible
case that Israel is committing genocide in Gaza and that the US is
supporting its actions.[1]
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It called on the Biden administration to “examine the results of
their unflagging support of the military siege against the
Palestinians in Gaza.” While it said it had no authority to order
the US to stop, it called on ordinary individuals to “confront the
current siege in Gaza.” This Commentary is offered as a starting
point for thinking about the implications of this decision for all of
us.[2]
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Findings of the Court: Plausibly Genocide

The Court’s decision began by laying out the background of the case:

On October 7, 2023, Hamas attacked Israel, killing approximately 1,200
people and taking 240 citizens hostage. Since that time, Israel has
mounted a military campaign against Hamas in the Gaza Strip. During
this military campaign, there have been roughly 26,000 people killed
and over 63,000 wounded in Israeli attacks.

It then summarized the findings of the International Court of Justice
on the genocide charges brought against Israel by South Africa. The
ICJ found that the “acts and omissions” charged by South Africa
appear to be capable of “falling within the provisions of the
Genocide Convention.”

The military operation being conducted by Israel following the attack
of 7 October 2023 has resulted in a large number of deaths and
injuries, as well as the massive destruction of homes, forcible
displacement of the vast majority of the population, and extensive
damage to civilian infrastructure. While figures relating to the Gaza
Strip cannot be independently verified, recent information indicates
that 25,700 Palestinians have been killed, over 63,000 injuries have
been reported, over 360,000 housing units have been destroyed or
partially damaged and approximately 1.7 million persons have been
internally displaced.

The ICJ further ruled that

Israel must, in accordance with its obligations under the Genocide
Convention, in relation to Palestinians in Gaza, take all measures
within its power to prevent the commission of all acts within the
scope of article II of this Convention, in particular: _(a) _killing
members of the group; _(b) _causing serious bodily or mental harm to
members of the group; _(c) _deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction
in whole or in part; and _(d) _imposing measures intended to prevent
births.

The US District Court decision endorsed the ICJ’s findings:

The undisputed evidence before this Court comports with the finding of
the ICJ and indicates that the current treatment of the Palestinians
in the Gaza Strip by the Israeli military may plausibly constitute a
genocide in violation of international law. Both the uncontroverted
testimony of the Plaintiffs and the expert opinion proffered at the
hearing on these motions as well as statements made by various
officers of the Israeli government indicate that the ongoing military
siege in Gaza is intended to eradicate a whole people and therefore
plausibly falls within the international prohibition against genocide.

In deference to the legal doctrine that courts have no authority on
“political questions” assigned by the Constitution to other
branches of government, the Court declined to order the Biden
administration to modify its complicity. But it did issue a plea:
“This Court implores Defendants to examine the results of their
unflagging support of the military siege against the Palestinians in
Gaza.”

And in an implicit appeal for the people to act where the Court
believed it could not, the decision stated: “It is every
individual’s obligation to confront the current siege in Gaza.”

The “Individual’s Obligation” to Halt War Crimes

While the court did not elaborate on the obligation of individuals,
there is a long history to the moral and legal responsibility of all,
governments and individuals alike, to prevent war crimes.

As the Nuremberg Tribunal after World War II stated, “Complicity in
the commission of a crime against peace, a war crime, or a crime
against humanity” is “a crime under international law.”[3]
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In the Zykon B case, the Nuremberg Tribunal found that “the
provisions of the laws and customs of war are addressed not only to
combatants and to members of state and other public authorities, but
to anybody who is in a position to assist their violations.” In the
Flick case the Tribunal ruled that international law “binds every
citizen just as does ordinary municipal law.”[4]
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There is a reason this is necessary. Who will enforce the law when a
government violates it with impunity? Judge Bernard Victor A. Roling
of the Tokyo War Crimes Tribunal provided the answer: The world “has
to rely on individuals to oppose the criminal commands of the
government.”[5]
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By virtue of the US Constitution, international law and international
treaties are explicitly a part of U.S. law. U.S. Supreme Court Justice
and Nuremberg prosecutor Robert Jackson stated, “The very essence of
the Nuremberg Charter is that individuals have international duties
which transcend national obligations of obedience imposed by the
individual state.”[6]
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So, obligations under international law are also obligations under US
law.

War Crimes Resistance from the Mexican War to Gaza

Nonviolent civil disobedience in protest of war has a long tradition
in the United States, dating back at least to Henry David Thoreau’s
going to jail to protest the U.S. war against Mexico.[7]
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Since the horrors of Nazi war crimes led to the Nuremberg Tribunal at
the end of World War II, many war opponents have grounded their action
specifically in the international law prohibition of war crimes.

US war crimes in Vietnam were a major motivation for the emergence of
“The Resistance,” a loose-knit group of young men who returned
their draft cards to the government with a pledge to refuse induction.
Within a year several thousand returned their draft cards and hundreds
had refused induction.[8]
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That in turn inspired the Call to Resist Illegitimate Authority, led
by famous pediatrician Dr. Benjamin Spock and others, who eventually
were prosecuted by the administration of Lyndon Johnson. Military
physician Howard Levy’s
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Berets for Vietnam and the Vietnam Veterans Against the
War’s Winter Soldier Investigation
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crimes in 1971 also played significant roles in highlighting US war
crimes in Vietnam and furthering the development of the movement
against the Vietnam War.[9]
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Resistance based on international law emerged again in the Iraq
war.[10]
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For example, on St. Patrick’s Day 2003, four members of the Catholic
Worker community in Ithaca, New York entered the army-marine
recruiting center in Lansing, New York and poured their own blood on
the walls, the windows, the posters, cardboard mannequins of soldiers,
the door, and the American flag. They were arrested and charged with
felony criminal damage to property.

According to Bill Quigley, an advisory counsel to what came to be
known as the “St. Patrick’s Four,” their trial strategy was to
put the legality of the war in Iraq on trial. They maintained that
their actions were absolutely legal under international law because
they were trying to stop an illegal war. The invasion of Iraq was a
series of serious illegal acts that constituted war crimes. Under the
Nuremberg principles they had a right to try to stop war crimes. To
the horror of the prosecutor and the amazement of the press, the jury
deadlocked 9-3 in favor of acquitting the defendants.

On June 7, 2006, US infantry officer First Lieutenant. Ehren Watada
held a press conference announcing that he refused to deploy to Iraq
because the war there was illegal. Watada argued that the
Administration’s invasion and occupation of Iraq was “manifestly
illegal” because it “violates our democratic system of checks and
balances. It usurps international treaties and conventions that by
virtue of the Constitution become American law.” Watada said, “As
the order to take part in an illegal act is ultimately unlawful as
well, I must as an officer of honor and integrity refuse that
order.”[11]
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He added, ““participation would make me party to war crimes.”
After three years of trying to convict him by court martial, the Army
finally gave up and allowed Lt. Watada to resign. Despite his direct
refusal of an order to deploy, Watada did not spend a single day in
jail.[12]
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Resistance to US complicity in war crimes in Gaza has grown rapidly
– largely because the Israeli actions in Gaza have been the most
visible as-it-happens embodiments of genocide the world has ever seen.
From the start this resistance has focused on genocide and other
crimes under international law. With the decision of the International
Court of Justice and the Northern California Federal District Court,
the issue of war crimes – and specifically of genocide – has
rapidly become central to that resistance.

These courts may lack the power or the will to implement their
findings. But, as the Nuremberg Tribunal and US law make clear, it is
the responsibility of the people to halt crimes that the courts have
proved impotent to prevent. All of us have a duty to prevent war
crimes and complicity in them by our government. As the California
court decisively concluded, “It is every individual’s obligation
to confront the current siege in Gaza.”

[1]
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Defense for Children International-Palestine, et al., Plaintiffs, v.
Joseph R. Biden, et al., Defendants.
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[2]
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For background on war crimes law and US war crimes in the Iraq War,
see Jeremy Brecher, Jill Cutler, and Brendan Smith, eds, _In the Name
of Democracy: American War Crimes in Iraq and Beyond_ (New York:
Metropolitan Books, 2005. Available for free download at
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[3]
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_In the Name of Democracy_ p. 8.
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[4]
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Ibid, p. 245.

[5]
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Ibid, p. 285.

[6]
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Ibid
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p. 285

[7]
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Resistance to war crimes based on international law is by no means an
American monopoly. A trickle of resistance in the French military,
based on refusal to participate in war crimes in Algeria, inspired the
“Declaration on the Right to Insubordination in the War in
Algeria” (AKA “The Manifesto of the 121”) helped start a
movement that in a few years brought half a million protesters to the
streets of Paris in 1962 and helped end the Algerian War. The
statement “Manifesto of the 121” was an inspiration for the US
1967 “Call to Resist Illegitimate Authority.”

[8]
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For more on resistance to the Vietnam War see “Michael Ferber,
“Resisting War Crimes: Vietnam and Iraq,” in _In the Name of
Democracy_, pp. 275-279.
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[9]
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[10]
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For other Iraq war resistance using international law, see _In the
Name of Democracy_, Part V: The Resisters: “Conscience, Not
Cowardice”, pp 209-244.
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[11]
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Brendan Smith and Jeremy Brecher, “Watada, the Law, and the War,”
July 6, 2006.
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[12]
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Brendan Smith and Jeremy Brecher, “Ehren Watada: Free at Last,”
October 29, 2009.
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* War Crimes; International Law; Resistance;
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