Francis A. Boyle: From Dachau to Gaza

During the summer of 1982 I had the opportunity to visit the Nazi concentration camp just outside Dachau, Germany and then the little town itself. Given the proximity of the town to the camp, my immediate reaction was: “This town is so close to the camp that the citizens of Dachau must have known what was going on out there. Why did they not do anything about it?” I had the exact same reaction during the last two weeks of May 1986 as I traveled up and down the West Bank and Gaza Strip in order to investigate Israel’s atrocities and war crimes against the Palestinians.

When I then complained about these reprehensible practices to the appropriate high-level legal officials sequentially at the Israeli Ministry of Defense, the Ministry of Justice and the Ministry of Foreign Affairs, I was told that they were all required by and could be justified under the doctrine of “military necessity.” Rather than engaging in an extended debate over this point, I simply responded to all three of these lawyers that this was precisely the argument used by the Nazi war criminals before the Nuremberg Tribunal in 1945 to justify their own incredible outrages upon humanity, including the Jewish people. After a bit more argumentation, these three lawyers basically conceded my Nuremberg analysis, but then each independently, uncannily, and matter-of-factly informed me: “We have public relations people in the United States who take care of these matters for us.”

Even more distressingly, upon a visit to the office of the Legal Adviser to the Foreign Ministry to discuss the prospects for peace, I was immediately informed by him that Israel had a “claim” under international law to the West Bank: it might not constitute the basis for perfect title, but it was nevertheless a “claim.” At the time I recalled the fact that of course Hitler had a “claim” to the Sudetenland as well. Although the Munich Pact of 1938 permitted German occupation and annexation of the Sudetenland into the Nazi Reich, this act of cowardice by Great Britain and France ultimately paved the way for the outbreak of the Second World War one year later, with all the tragic consequences that conflagration entailed for the Jewish people, among others.

Today, the United States and Israel are striving to consummate a Middle East version of the Munich Pact that will sell out of the right of the Palestinian people to self-determination and a real independent state of their own. Only history will tell if the consequences shall be as tragic for the fate of the Arab and Jewish peoples in the Middle East, if not the rest of the world. I fear that there is a high probability that history will repeat itself.

Toward the end of my 1986 trip to Palestine, I visited the U.S. Embassy in Tel Aviv to complain about these criminal Israeli occupation practices. An assistant U.S. political attaché informed me that such matters concerned “internal affairs” of the Israeli government. I stridently objected: Under basic rules of international law, the Israeli government is what is known as a “belligerent occupant” of the West Bank, Gaza Strip, and Jerusalem. Pursuant to article 4 of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War, all non-Israelis living in these occupied territories are what are called “protected persons.” Article 147 thereof provides that any of the following acts committed against “protected persons” are “grave breaches” of the Convention: “wilful killing, torture or inhumane treatment. . . wilfully causing great suffering or serious injury to body or health. . . .” Furthermore, article 146 mandates all state parties to impose “effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention. . . .” Thus, any Israeli political leaders or military officers who have ordered or committed such “grave breaches” are “war criminals” within the meaning of the Geneva Conventions and the Nuremberg Principles. These Israeli war criminals can and must be prosecuted by any state in the world community that obtains jurisdiction over them.

Finally, under common article 1 to the Four Geneva Conventions of 1949, all state parties are obliged not only to respect, but also “to ensure respect for the present Convention in all circumstances.” When a party to the Conventions such as Israel is committing “grave breaches,” such practices are not “an internal affair” but rather international crimes and therefore a matter of international concern. The United States government, inter alia, has an absolute obligation to use its enormous political, military and economic leverage over Israel to terminate such criminal practices immediately. Yet for the past sixty years the United States government has had no response to make to the desperate pleas by the Palestinian people for freedom, justice, dignity, respect and independence—in other words, for self-determination. After forty years of an incredibly brutal and inhumane military occupation, the only really effective manner for all states party to the Geneva Conventions to ensure respect for the terms of the Fourth Convention in these occupied Palestinian territories would be to compel all Israeli military forces and colonial settlers to withdraw immediately and by all means possible from the West Bank, Gaza, and East Jerusalem. In 1999 President Clinton ordered Indonesia out of East Timor that it had illegally invaded and annexed as far back as 1975 with the approval of the Ford/Kissinger administration. Some future American President must likewise order Israel out of Palestine. It was toward obtaining that end that I had originally called for the establishment of an Israeli divestment/disinvestment campaign in November of 2000. Free Palestine!

Francis A. Boyle, Professor of Law, University of Illinois, is author of Foundations of World Order, Duke University Press, The Criminality of Nuclear Deterrence, and Palestine, Palestinians and International Law, by Clarity Press. He can be reached at: FBOYLE @ LAW.UIUC.EDU

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