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Presentation at Iran Red Crescent Conference – Tehran International Congress on the Occupation of Palestine in view of international Law and the violations of IHL in Gaza

07 March 2024

By Attorney Ziyaad Ebrahim Patel (South Africa)

International Human Rights Lawyer and Lawfare Advocate

Warmest greetings of solidarity to fellow activists and organisers of this esteemed gathering.

Indeed, it is an honour and privilege to participate despite what our people are enduring in occupied Palestine. We must come together and share our knowledge at this important time with the goal of the liberation of the people of Palestine.

It is a cause which is held dear to us all.  Our work will always be dedicated to the oppressed people of the world.

DEFUNDING UNITED NATIONS RELIEF WORKS AGENCY (UNRWA)

Recently I was requested to  make submissions by an event co-hosted by colleagues of the ‘Just Peace Advocates’ in Canada, entitled  Global Rally Against Complicity in genocide; Defund genocide NOT aid to the genocided

The state parties submissions to the United Nations Security Council, regarding retraction of UNRWA funding, the apartheid and genocide state of Israel together with the United States have become genocide DENIALISTS, by making all forms of excuses and giving distorted interpretations of the obligations the apex court had imposed of the provisional measures to ensure the protection and preservation of Palestinians as a group and as a society in the Gaza strip.

THE RECENT ICJ JUDGMENT

The situation in occupied Palestine is at a precipice and our responsibility as the global community is to ensure that Palestinian lives and society is preserved and protected.

The South African Minister of International Relations and Co-operation, Ms. Naledi Pandor has made this call following the landmark judgment that was delivered by the International Court of Justice (ICJ), Friday 26 January 2024.

The court recognized the risk of plausible genocide and the danger of those rights being affected which the Republic of South Africa sought protection as a state party in terms of the Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide Convention’) and the link to the provisional measures sought. There is a high risk of these rights being vanquished or destroyed in part or as a whole by the time when the merits  of  South Africa’s genocide case as applicant is adjudicated.

This was reaffirmed in a further application submitted by South Africa for additional measures it had sought, where the Zionist entity was in clear violation of the first ICJ order.

The International Court of Justice (ICJ) judgment was released on 26 January 2024 and amongst its findings included the following provisional measures :

  1. The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 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 within the group;
  2. The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;
  3. The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
  4. 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;
  5. The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;
  6. The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.

In the additional measures which were sought, the ICJ ordered the following:

 “The Court notes that the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General (Remarks to the General Assembly on priorities for 2024 (7 Feb. 2024)). This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures. The Court emphasizes that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.´

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ Pages 24 & 25

Clearly, it is inexcusable and indefensible  that certain states who are now also incriminated and complicit by their genocidal enabling of an ultra-right  fascist regime in the supply of billions of US dollars in military arms, weapons and munitions, that have been unleashed predominantly on a civilian population in Gaza, have taken the ghastly step to suspend funding of the United Nations Relief Works Agency (UNRWA).

We are aware of the important work this agency does in alleviating the suffering of Palestinians  in a region devasted by war, conflict and genocide.

The international community is bound to the ICJ judgment  The Court considers that, by their very nature,  some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. Therefore, a link exists between the rights claimed by South Africa that the Court has found to be plausible, and at least some of the provisional measures requested.

IMPACT ON HEALTHCARE AND PROTECTED MEDICAL FACILITIES UNDER IHL

 Specifically in Gaza, the attacks against the health infrastructure witnessed since October 7th, 2023, is deeply rooted in a history of Israel’s weaponisation of health. Two different World Health Organisation (WHO) reports outline how fragmentation of the Palestinian people, implementation of a permit regime, physical obstacles to movement, and protection gaps have resulted in health inequities and created substantial barriers to healthcare provision and health access in the occupied West Bank, including east Jerusalem and the Gaza Strip.

According to Dr Richard Peeperkorn, WHO Representative for the occupied Palestinian territory, ‘The Palestinian health system suffers the consequences of longstanding displacement, refugeehood and occupation.’

Prior to October 2023, health-care systems in Gaza were already teetering on the brink, with only 36 hospitals operating at full capacity and a total of 3412 beds catering to a population exceeding 2 million people.

These data indicate a maximum ratio of 1.55 hospital beds per 1000 individuals across the entire region. Patients requiring access to specialised treatment outside of Gaza have routinely been prevented from exiting. In 2021 alone, over 36% of requests for medical permits have either been refused or left unanswered by Israeli authorities, condemning patients with urgent conditions to preventable deaths.

In 2009, Amnesty International published a 120-page research paper titled ‘Israel/Gaza: Operation Cast Lead: 22 Days of Death and Destruction’. Under the heading “Attacking and Obstructing Medical Workers”, the following was concluded: “The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 obliges to respect and protect the wounded, to allow the removal from besieged areas of the wounded or sick, and the passage of medical personnel to such areas. The deliberate obstruction (by Israel) of medical personnel to prevent the wounded receiving medical attention constitutes “wilfully causing great suffering or serious injury to body or health”, a grave breach of the Fourth Geneva Convention, and a war crime.’ The report was concluded on witnessed accounts and reliable evidence.

Dr. Aayesha Soni – Submissions on HCW for expansion of Criminal Complaint Genocide – South Africa

WORK ON LAWFARE ADVOCACY

My work in this area began in 2008/2009 during the first war in Gaza under the auspices ‘Cast Lead’. Together with a team of lawyers  representing NGO’s and the Palestinian solidarity movement, we had lodged an extensive criminal complaint with South African Investigative and Prosecutorial Authorities, known as the ‘Gaza Docket’. Olations

A case was also made of Israel’s belligerent occupation, apartheid and colonial imposition which are all violations of conventions and international law.

Israel’s genocidal barbarism was clear already from that time of reports which emanated from ‘Cast Lead’ and the timing of the first attack for maximum impact with utter disregard to distinction and proportionality.

UN Fact Finding Mission Report – Cast Lead

PARAGRAPH 1887: “The timing of the first Israeli attack, at 11.30 a.m. on a weekday, when children were returning from school and the streets of Gaza were crowded with people going about their daily business, appears to have been calculated to create the greatest disruption and widespread panic among the civilian population. The treatment of many civilians detained or even killed while trying to surrender is one manifestation of the way in which the effective rules of engagement, standard operating procedures and instructions to the troops on the ground appear to have been framed in order to create an environment in which due regard for civilian lives and basic human dignity was replaced with disregard for basic international humanitarian law and human rights norms.”

Having represented a South African journalist Gadija Davids in 2010 when the Flotilla Aid Mission was attacked and raided in international waters approximately 84 nautical off the coast of Gaza killing at least ten activists. This was a clear violation when the Flotilla’s purpose was to break the siege of Gaza and deliver essential humanitarian aid.

In an abridged memorandum, I had prepared:

  1. On 3 January 2009, Israel declared a “blockade” over the Gaza Strip. The UNFFM (‘Report’)   concluded that there was no legal basis for the blockade. Referring to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (SRM), the Report cited paragraph 102, maintaining that:

       “[A] blockade is illegal if:

  1. it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
  2. the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.”(para 51).

Accordingly, the Report maintained that the blockade was not justified. The report went further and stated that the blockade may be seen as a form of collective punishment, contrary to Article 33 of the Fourth Geneva Convention (para 60) and the Flotilla Report found that “no case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal.”(para 58).

Israel has intentionally and wrongfully maimed and killed thousands of civilians since 2008-2009, (“Cast Lead”) already using banned substances such as the highly incendiary white phosphorus, Nail and Dime bombs.

Utilising South Africa’s ratification of the Rome Statute our police authorities were able to exercise the arrest warrants on Israeli commanders that were responsible. The arrest warrants were issued out of the Turkish Criminal High Court, where evidence if victims was observed. The bilateral treaty which Turkey had controversially signed had unfortunately ended the criminal case. The Mavi Marmara carried the flagship of the State of Comoros which had pursued the case at the ICC.

In a submission at the UN Human Rights Council, I had  represented the Khiam Rehabilitation Centre in 2016 informing the Council of the dire situation of Palestinians their treatment and processing of prisoners and child prisoners. Child prisoners are denied any legal representations and at many occasions forced confessions are extracted. The Israeli Prison Services (IPS) carries this out in utter disregard, and torture constitutes a crime against humanity.

The separate arbitrary laws, extrajudicial killings, home confinement within an institutionalised apartheid regime are well documented in altering the demographic composition of East Jerusalem and Palestinian territories.

Currently we have also extended cases against Zionist institutions and IDF recruitees serving in the IDF. This in violation South Africa’s law and we have extended it to terrorism and terror related activities which is known as the ‘South African Zionist Terrorism Corridor probe’ .

With the recent findings by the ICJ, we are now extending our efforts into genocide charges where South Africa had already ready made a formal State referral to the ICC.

THE IMPLEMENTATION AND PROTECTION OF THE PALESTINIAN SOLIDRAITY RIGHTS ACT ‘IPPSRA CITIZENS ADVOCACY BILL’

This is an important initiative emanating from the Parliamentary Tehran conference I attended in 2017 to include IHL provisions and build national jurisdictions within a legal framework and in strengthening the ‘international intifada’.

It is clear that international institutions are ineffective and politicised to exercise international law and IHL enforcement. This is in part due to the  manner the UNSC is structured, and we must advocate for change to ensure global safety, peace and security is achievable within the broad framework of multilateralism in which international law rests.

In conclusion, I also recall attending the conference also in Tehran which discussed the establishment of an Islamic international criminal court. This idea must come to fruition with like-minded states to also sign treaties establishing war crimes tribunals to hold Zionist leaders and its system of genocide enablers including actors and participants of the military industrial complex which is primarily responsible in the manufacture of  munitions without bearing any responsibility whatsoever for the catastrophic consequences unfolding in Gaza and the broader impact on our environment and the safety and security of our planet. More especially the stark contradictions  and double standards of human rights, democracy and environmental goals are all visibly clear in how it is applied.

Dense inert metal explosive (DIME) is an experimental type of explosive that has a small but effective blast radius.

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