Sociocide – promoting the debate so law meets reality?

In New York, the jury of the RTOP concluded as follows:

“Israel’s policy with respect to the Palestinian people amounts to sociocide by dint of the widespread and systematic destruction of Palestinian social and political structures and of material and immaterial elements of shared identity.”

I propose that the jury add to that conclusion in its final session in March 2013 in a relatively modest way, without adding to any significant extent to its deliberations on the subject of sociocide from October 2012: to urge international lawyers and campaigners to bring the question of sociocide to the attention of states at all appropriate times, but in particular in the context of all reviews of the definitions of crimes against humanity (CAH), including when considering a new treaty on CAH, such as that of the World Law Institute.[1]

The NY findings

At 5.115 to 5.121 of the jury’s NY conclusions the following key points were made, none of which need to be further elaborated or debated, but form a basis for the above proposal:

• Positive international law does not recognize the crime of sociocide as a distinct crime in and of itself.
• There is evidence neither of its existence in international law nor of a current trend in international affairs that would soon lead to its recognition as an international crime.
• While the notion of a crime of sociocide therefore remains, as such, an academic concept, this was also the case with “genocide” when it was first used in 1944, yet within 4 years it was adopted as a legal concept (Genocide Convention 1948).
• The systematic destruction of the essence of a social group, i.e. of all the elements that make a group more than the sum of its members, will inevitably result in the destruction of the group itself even though its members are, for the most part, still physically unscathed.
• The Palestinian population as a national group is currently facing a sociocide.
• A widespread and systematic destruction of some Palestinian social and political structures is currently taking place in Palestine. Through the continuing military occupation of the OPT, the continuing building of settlements, the construction of a wall that places parts of the Palestinian territory out of reach of the Palestinian authority and, finally, through the blockade of the Gaza strip, Israeli authorities have materially impeded Palestinians to organize a political structure that would fully be able to administer them as a distinct national group.
• Israel is in clear violation of the right of the Palestinian people to self-determination (see para 19.1 of the Barcelona conclusions of the RTOP).[2]
• The opposition of Israeli authorities to the organization of Palestinians as a national group has been widespread and systematic.
• Israel’s behaviour could result, in the long run, in the destruction of the Palestinian population as a distinct national group and leave nothing but a sum of individuals under Israel’s political administration.
• While Israel is currently committing sociocide in Palestine most of the acts which constitute sociocide are already condemned in their own right by current positive international law as being either pre-existing well-recognised crimes against humanity or war crimes or apartheid crimes under, as the case may be, the ICC Statute, the 1949 Geneva Conventions, the 1977 1^st Additional Protocol, the 1973 UN convention on the suppression and punishment of the crime of apartheid.

What next?

First, it seems apt to provide a draft legal definition of sociocide, primarily because any debate that results in a decision to promote more legal thinking and action around the issue can work from something. Here is a working legal definition of sociocide

A working legal definition – first draft

‘Sociocide’ means any of the following acts when committed as part of a widespread or systematic attack directed against a population of people living in non-self-governing territory or a territory under foreign military occupation, with intent to prevent the people from exercising their collective right to self-determination:

(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 prevent its continued collective existence and, in particular, from governing itself or exercising its right to self-determination;

(d) Annexing territory;

(e) Separating people with the purpose of disintegrating or fragmenting a society of people so as to prevent it from governing itself or exercising its right of self-determination;

(f) Transferring the civilian population or military forces of an occupying power to an occupied territory with the purpose of disintegrating or fragmenting a society of people so as to prevent it from governing itself or exercising its right of self-determination;

(g) Erecting physical barriers and forcibly dividing territory with the purpose of disintegrating or fragmenting a society of people so as to prevent or severely impede it from governing itself or exercising its right of self-determination.

The following acts shall be made punishable:

(a) Sociocide;

(b) Conspiracy to commit sociocide;

(c) Direct and public incitement to commit sociocide;

(d) Attempt to commit sociocide;

(e) Complicity in sociocide.

The fact is that the right to exercise self-determination is a peremptory norm of public international law – see the Annex – and therefore identifying and defining the legal wrong of preventing a people from exercising that right (i.e. an internationally wrongful act incurring state responsibility) is not as controversial as it may seem when first using the word ‘sociocide’ – perhaps the controversial aspect is to limit it in the manner proposed above to colonial/occupation situations. Arguably, that is too restrictive and specific. As put forward above, it does not seek to incorporate indigenous peoples within an independent/self-governing state.  That has been done quite consciously, because different issues arise there.

Nonetheless, there are peoples in Western Sahara and in a range of less high profile non-self-governing territories who arguably gain protection from a stand-alone international crime of sociocide as set out above, such that it can be seen that sociocide is an issue of general concern, and not uniquely applicable to Israeli policy towards the Palestinian people.

However, it may be necessary to develop the definition further so that, for example, its application to refugees in any given context is clearer. In the case of Palestine the continued enforced separation of different elements of the Palestinian national group (refugees, West Bank, Gaza, East Jerusalem, inside Israel) is one of the main policies threatening the on-going cohesion of the group.

There is not time here to apply the above working definition to the facts but I hope it can be seen that the evidence considered by the RTOP of Israeli acts directed at the Palestinian people, whether under military occupation or otherwise, tends to support a finding of sociocide.

The question arises as to the consequences of not recognising sociocide and why it may be important to do so, specifically in the context of Israel’s treatment of the Palestinians (i.e. what makes it necessary to have a new prohibitive rule?) A serious question therefore arises on the question of sociocide that I suggest is addressed by the Jury head on.

The Question

Should the RTOP

(a)   Support legal and campaigning work on the inclusion in international and domestic law of a new crime of sociocide (i.e. that perhaps better describes what Israel is doing to the Palestinian people)?

OR

(b)   Focus entirely on promoting the enforcement of the current law, given that the key factual elements of sociocide in theory and in its application to the Palestinian people are already prohibited by the individual and combined prohibitions in law on: colonialism, denial of self-determination, settlement of occupied territory, apartheid, persecution, segregation, denial of refugee return, acquisition of territory by threat or use of force, forcible population transfer, etc.

Clearly, there are powerful arguments in favour of (b) above, including that:

1. promoting the enforcement of the current law is a more effective use of energy/time/resources; and
2. work on a new and generally unheard of term like sociocide might undermine current efforts (i.e. Israel would just say: it’s not law and it would be easy for other states to agree, at least during a lengthy period of campaigning and legal work on the issue); and
   1. The right to self-determination (see the Annex to this document) is considered to be a fundamental norm of international law; as Israel is already widely acknowledged as denying the Palestinians this right, how does another legal term to further describe this denial really help? Would sociocide change the position?
   2. law rarely adequately describes wrong-doing – e.g. it often cannot because it has to accommodate many different factors and Palestine/Israel is but one situation; and
   3. any working definition of sociocide would in any event necessarily be founded as a putative legal concept – if accepted by states following necessary campaigns etc. – on violations of international law and international crimes against Palestinians that are well documented and recognised but in respect of which there is an urgent need to secure remedies, bringing us back to 1 and 3 above.

Those are strong arguments. But that does not contradict a viewpoint that states that Israeli practices of apartheid and persecution (as elaborated by the RTOP in the conclusions of its third session in South Africa) have to be understood as systematic and widespread by products of Israeli practices towards the Palestinians under its control, but that these practices spring from a policy that can and should be accepted by states as violating international law. What came first, what caused Israeli apartheid and persecution to come about and take hold is Israeli conduct which fits the usual criteria of a crime against humanity (CAH), because it is accompanied by widespread or systematic attacks on a civilian population, namely settler colonialism (which includes persistently preventing the Palestinian people from exercising its collective right of self-determination).

‘Sociocide’, based on the possible legal definition above, has the capability of being recognized by states as a CAH, in due course, though obviously not without considerable effort.

Identifying conduct as a legal wrong does provide benefits to the victims – it provides a legal language to describe the conduct and the ramifications will include the need not only to address and remedy apartheid and persecution, but also settler colonialism. This becomes more (rather than less) important for the Palestinian people after the 29 November 2012 UN General Assembly resolution according Palestine the status of Non-Member State observer.[3] A clear understanding is required that the existence of the State of Palestine does not equate to the Palestinian people exercising their right to self-determination: fully confronting the reality of what is being faced by the Palestinians can be a helpful step in changing that reality. Arguably, recognition of sociocide as a legal wrong is part of that process.

Advocacy

Israel seeks to ensure that the Palestinian people never in fact have the opportunity to exercise their right to self-determination. Without a legal concept such as sociocide, it is not possible for this Israeli conduct to be fully understood or addressed, only the symptoms of sociocide in the Israeli case (such as apartheid and other recognised legal wrongs) being understood or addressed. The intent of Israeli policies is significant, legally as well as in other senses.

The most urgent task remains to use available legal definitions and remedies to seek to change the day to day reality for Palestinians and no one can ignore the difficulties of persuading states to adopt a legal definition of sociocide; but nor can anyone ignore the impact on victims when law does catch up with reality, as occurred in the months and years after apartheid was recognised under international law.

Sociocide in the case of Israeli policy towards Palestinians is nothing more nor less than seeking an end through violent and non-violent means to the collective existence of Palestinians and preventing them from ever exercising their right to self-determination. It provides a general frame that helps to explain all the violations of Palestinian rights. Sociocide does not contradict (or make any less important) the findings of the RTOP in relation to Israel’s apartheid practices and the legal consequences of those practices – rather sociocide emphasizes the will, the deliberate plan of Israel to eliminate the existence of the Palestinians as a collective group, albeit falling short of genocidal intent to physically exterminate the group’s members.

Stated simply, states do need to recognise the special wrong that any state or group of states commit when they carry out systematic or widespread attacks on a civilian population aimed at preventing a national group from exercising its collective right to self-determination and the need to identify and remedy that special wrong, including criminal accountability for those responsible for ordering or committing the prohibited acts.

Possible ways forward

1. Promote a UNGA debate on the issue.
2. Support work on the legal definition of sociocide and for it to be included in the draft convention of CAH and/or in a free-standing sociocide convention.
3. Encourage decisions in other courts that deal with the treatment of Palestinians to use the term.
4. Encourage funders to support independent academic study on this – e.g. a PhD/book.
5. Apply the concept to other situations to gain more widespread support – people are more likely to support it outside of the Palestine-Israel context.
6. Include the issue in campaigns for a second ICJ Advisory Opinion.

END NOTES

1. As to 2 above, the CAH Convention initiative has already spent several years having various workshops and conferences and discussions with hundreds of scholars and experts, and in the end came up with a list of crimes against humanity in the draft convention that is essentially a carbon copy of the crimes against humanity article of the Rome Statute. The main impulse of the CAH Convention as proposed seems to be not to add to or develop the existing international law on crimes against humanity, but just to bolster the obligation of states to prosecute them domestically; to add in sociocide at this stage is therefore acknowledged as being ambitious.

1. As to 6 above, arguably this is not a good idea. Currently, there is no way the ICJ will address an issue that is not clearly set down in international law; calling for this to be included in a possible advisory opinion question risks distracting from the existing issues being mooted (apartheid, legal consequences of prolonged occupation etc.) and may prejudice the chances of a second Advisory Opinion gaining traction.

ANNEX on self-determination

1. ICJ Advisory Opinion on the Wall – extract

88. The Court also notes that the principle of self-determination of  peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above, pursuant to which “Every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] . . . of their right to self-determination.” Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of al1 peoples to self-determination, and lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter.

The Court would recall that in 1971 it emphasized that current developments in “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to al1 [such territories]“. The Court went on to state that “These developments leave little doubt that the ultimate objective of the sacred trust” referred to in Article 22, paragraph 1, of the Covenant of the League of Nations “was the self-determination . . . of the peoples concerned” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.  Reports 1971, p. 31, paras. 52-53). The Court has referred to this principle on a number of occasions in its jurisprudence (ibid. ; see also Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162). The Court indeed made it clear that the right of peoples to self-determination is today a right erga omnes (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29).

…

155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of al1 States” and, “In view of the importance of the rights involved, al1 States Cain be held to have a legal interest in their protection” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33). The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law.

156. As regards the first of these, the Court has already observed  (paragraph 88 above) that in the East Timor case, it described as “irreproachable” the assertion that “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice,  has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88),

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .”

1. Extract from Reference re Secession of Quebec, [1998] 2 S.C.R. 217

114. The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law. (A. Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171-72; K. Doehring, “Self-Determination”, in B. Simma, ed., The Charter of the United Nations: A Commentary (1994), at p. 70.)

115 Article 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7, states in part that one of the purposes of the United Nations (U.N.) is:

Article 1

. . .

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

116 Article 55 of the U.N. Charter further states that the U.N. shall promote goals such as higher standards of living, full employment and human rights “[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.

117 This basic principle of self-determination has been carried forward and addressed in so many U.N. conventions and resolutions that, as noted by Doehring, supra, at p. 60: The sheer number of resolutions concerning the right of self-determination makes their enumeration impossible.

118 For our purposes, reference to the following conventions and resolutions is sufficient. Article 1 of both the U.N.’s International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, states: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

119 Similarly, the U.N. General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970 (Declaration on Friendly Relations), states:

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

120 In 1993, the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993, that reaffirmed Article 1 of the two above-mentioned covenants. The U.N. General Assembly’s Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995, also emphasizes the right to self-determination by providing that the U.N.’s member states will:

. . . .

Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. . . . [Emphasis added.]

121 The right to self-determination is also recognized in other international legal documents. For example, the Final Act of the Conference on Security and Co-operation in Europe, 14 I.L.M. 1292 (1975) (Helsinki Final Act), states (in Part VIII):

The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. [Emphasis added.]

…

(i) Defining “Peoples”

123 International law grants the right to self-determination to “peoples”. Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, as the right to self-determination has developed by virtue of a combination of international agreements and conventions, coupled with state practice, with little formal elaboration of the definition of “peoples”, the result has been that the precise meaning of the term “people” remains somewhat uncertain.

124 It is clear that “a people” may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to “nation” and “state”. The juxtaposition of these terms is indicative that the reference to “people” does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.

[2] http://russel.association-belgo-palestinienne.be/en/wp-content/uploads/2010/08/CONCLUSIONS-TRP-FINAL-EN-last.pdf

19.1 By maintaining a form of domination and subjugation over the Palestinians that prevents them from freely determining their political status, Israel violates the right of the Palestinian people to self-determination inasmuch as it is unable to exercise its sovereignty on the territory which belongs to it; this violates the Declaration on the granting of independence to colonial countries and peoples (A/Res. 1514(XV), 14 Dec. 1960) and all UN General Assembly resolutions that have reaffirmed the right of the Palestinian people to self-determination since 1969 (A/Res. 2535 B (XXIV), 10 Dec. 1969, and, inter alia, A/Res. 3236 (XXIX), 22 Nov. 1974, 52/114, 12 Dec. 1997, etc.

[3] G.A. Res 67/19, U.N. Doc. A/RES/67/19 (Nov. 29, 2012), available at http://www.un.org/Depts/dhl/resguide/r67.shtml