"Germany could help Israel and Palestine on the path to reconciliation"

Mr. Bartov, in its interim ruling the International Court of Justice in The Hague accepted South Africa's case against Israel and ordered some of the provisional measures requested by South Africa. Among other, the court said Israel must 'prevent and punish' incitement to genocide. How do you interpret this? What impact will this have?

Omer Bartov: This court's provisional measure indicates its acceptance of South Africa's expressed worry that Israeli political and military leaders' statements can be seen as incitement to genocide. I warned about this in my New York Times op-ed in early November. 

The ICJ cites a number of statements which were not made – as the Israeli defence tried to argue – by marginal individuals, but rather by people with executive authority or high public office, such as the president, the prime minister and the minister of defence. 

Following the ICJ's ruling, Benjamin Netanyahu tried to muzzle his ministers, but to no avail. His minister of national security, Itamar Ben Gvir, publicly called in a recent rally in Israel, and then in an interview with the Wall Street Journal, to "encourage" the population of Gaza to leave the Strip altogether, which is another way of calling for ethnic cleansing. 

What now, following the ICJ ruling?

This indicates that while the ICJ ruling had a certain impact on Netanyahu, his inability to control his ministers – not least because he fears that his coalition will collapse, resulting in him possibly heading to prison – means that it will not have much effect. 

The question is what will happen in a few weeks when Israel is required to report back to the ICJ on implementing the provisional measures. Potentially, the ICJ could refer Israel to the Security Council to impose punitive measures, such as sanctions, a step the U.S. might veto. 

Alternatively, the U.S. could impose measures directly on Israel's national security minister, Ben Gvir, such as blocking his financial accounts, as it has done now with several settlers. This would be a significant warning shot to all other politicians.

Could you explain the difference between terms such as "ethnic cleansing" (often referred to as "forced displacement"), "crimes against humanity", "war crimes" and "genocide". And what is the legal meaning of "plausibility of genocide" as opposed to "genocide"?

Bartov: "War crimes" and "crimes against humanity" are severe breaches of international humanitarian law (IHL). In the case of "war crimes", we are speaking of breaches of the 1949 Geneva Convention and subsequent protocols. They include such relevant actions as "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly", and "unlawful deportation or transfer".

One important element is the principle of proportionality, which requires that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought. 

Hence, for example, dropping a 2000-pound bomb on a school with 200 civilian refugees to kill two Hamas leaders may be found a disproportionate use of munitions.

"Ethnic cleansing" oftens leads to genocide

"Crimes against humanity" as defined by the Rome Statute of the International Criminal Court are "acts committed as part of a widespread or systematic attack directed against any civilian population", of which most relevant here are "extermination" and "deportation or forcible transfer of population". 

In contrast with genocide, crimes against humanity do not need to target a specific group; in contrast to war crimes, they need not occur during wartime.

"Ethnic cleansing" is not defined in IHL. It is similar but not equivalent to "deportation or forcible transfer of population" and "deportation". That means "ethnic cleansing" may fall under "war crimes" and/or "crimes against humanity". 

Generally speaking, ethnic cleansing is understood as the attempt to remove an ethnic group from a particular territory, to benefit another ethnic group that wants to be the exclusionary possessor of that territory. 

The UN Commission of Experts mandated to investigate violations of international law in the territory of the former Yugoslavia, defined ethnic cleansing as "a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas". 

Historically, "ethnic cleansing" has often led to genocide, as happened in the genocide of in German Southwest Africa in 1904, the genocide of the Armenians in 1915, and the early stages of the Holocaust.

Genocide criteria

The ICJ considers the suspicion of genocide to be "plausible". What does this mean and at what point can we legally speak of "genocide"?

Bartov: The crime of genocide is defined in the UN Convention on Genocide of 1948 as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". Such acts include "killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group". Most of these, apart from the last, may apply to Gaza. 

But crucial to defining genocide is (a) the expressed intention to destroy the group, as such, and (b) actions that show the killing not to be random, but intentionally targeted at members of a particular group with the intent of destroying it as such. 

Hence statements by leaders are important, as is linking such statements to specific policies on the ground. Additionally, incitement to genocide, of which such statements may be proof, is also a crime under international law. It is to this that the ICJ referred in its provisional measure.

The legal meaning of "plausibility of genocide” is that the ICJ identifies that there is enough evidence to show that genocide might be occurring or might occur imminently, and that significant harm might be caused by events on the ground before the final ruling by the ICJ, which could take years before it is issued.

Gaza: Deliberate endangerment of Palestinians

Bartov: Specifically to Gaza, my understanding is that if the population of Gaza, most of which is now concentrated in a small area in the southern part of the Strip, is not allowed to return to its (mostly destroyed) homes, under an agreement that would facilitate rebuilding their homes and the relevant infrastructure; and that if it then either begins dying in ever greater numbers from malnutrition and epidemics where it is now located, or is forced to flee from the Gaza Strip, it will be possible to interpret the entire IDF operation in Gaza as ethnic cleansing/forcible removal.

This would therefore be a "war crime" and "crime against humanity" or possibly even genocide. After all, the result could be perceived as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part", the group being the ethnic and national Palestinian population of Gaza.

Germany should work to resolve the crisis

The unquestioning loyalty to the policies of the Israeli government is criticised by many. At the same time, we are witnessing a shift to the right in Germany and anti-Semitism and racism are on the rise. Is Germany increasingly isolating itself internationally?

Bartov: Within the European and U.S. context, Germany has still not isolated itself in a major way, considering the generally similar positions of such countries as France, Britain, and the United States both on the conflict in Gaza and on the ICJ. 

But I think that in the long run, Germany may become increasingly isolated. To my mind, the best way for Germany to position itself both vis-a-vis its domestic problems and in the international community is to actively work toward resolving the current crisis and working in tandem with other powers towards a political solution to the Israeli-Palestinian conflict. 

This must include both criticism of Israeli policies and growing pressure on its government, and positive steps toward a peace deal that would culminate in a two-state solution. I believe a confederation is the only viable solution, which I will go into below. 

Germany can show itself to be pro-Israel by working towards this goal rather than supporting the current extreme-right government in Israel that is undermining Israel's own national interests. This would make it easier for the German government to distance itself from extreme-right elements in Germany and to demonstrate its sense of responsibility toward both Jews and Palestinians. 

The problem in Germany internally is of course not only the extreme right but also the tensions with a large, recent, as well as older immigrant community, much of which comes from the Middle East and is Muslim. Germany has had difficulties integrating this population, which often feels excluded and stereotyped. 

Demonstrating more care for Palestinians, along with greater and more culturally sensitive attempts to absorb immigrants, will go a long way to addressing domestic tensions and turning against the real internal danger from the extreme right.

"The instrumentalisation of anti-Semitism"

The Berlin Senate recently announced it would be linking cultural funding to a commitment against anti-Semitism. Following protests from cultural professionals who agree with the Jerusalem Declaration's definition of anti-Semitism, which you also co-signed, this clause was removed. Many creative artists see artistic freedom in Germany under threat. Do you share this fear?

Bartov: I share this fear and have spoken against the weaponisation of anti-Semitism to control speech, especially to limit or totally prohibit criticism of Israeli policies. This has been a long-term goal of the multiple Netanyahu administrations.

The IHRA (International Holocaust Remembrance Alliance) definition has served this goal exceptionally well, to the detriment not only of the necessary criticism of the occupation and breaches of international humanitarian law by Israel, but also to our understanding of anti-Semitism. 

Indeed, it has led to a cheapening of what we mean by anti-Semitism and the Holocaust. The attack on Masha Gessen was just one manifestation of this witch hunt. 

What has been occurring on U.S. campuses is another, such as the recent attacks on Professor Derek Penslar of Harvard, an outstanding scholar of Jewish history and Zionism, by right-wing elements in the U.S. and powerful donors. This is another example of how misguided such alleged attempts to combat anti-Semitism can be and how easily they can be mobilised to limit speech and defend the indefensible.

"A Land for All" peace plan

You are a co-signatory of the petition "The Elephant in the Room. Jews Fight for Justice" from August 2023, which speaks of an Israeli "apartheid regime". For the "day after", after the Gaza war, you say an international plan is needed. What could and should this plan look like and what role should Germany and the EU play in it?

Bartov: Let me first say that "the elephant in the room” spoke about the installation of an apartheid regime on the West Bank, not of Israel as a whole being an apartheid regime. 

As for an international plan, it would have two elements. The first would be to confront the current crisis. This would mean ceasefire, complete return of the hostages in exchange for Palestinian prisoners in Israeli jails, the removal of the Hamas leadership from Gaza, the temporary presence of an international Arab policing force in Gaza, and the gradual takeover of the Strip by a revamped Palestinian Authority. 

This would require a new political leadership both for the Palestinians and Israel. These leaders exist, but cannot assume power before the old, corrupt, and violent elements in power at the moment are removed.

The second element, which must serve as the overriding framework for the first element, would be the creation of two states, preferably according to the programme outlined in A Land for All, which appears to me as the most appealing, original, and feasible. The plan is the outcome of years of reflections by a group of Israelis and Palestinians. It entails the establishment of two states along the 1967 lines, in confederation with each other, each fully independent and sovereign, based on a right of self-determination and a right of return, with a common capital in Jerusalem. 

The plan differs from the defunct two-state solution, since the confederation would make a distinction between rights of citizenship and rights of residence, meaning that Jews and Palestinians could be citizens of one state, but reside in another, as is already the case in the European Union. 

Obviously, the numbers of foreign residents on both sides would have to be monitored, but the borders would be open, allowing freedom of movement between the states. Since the entire land is already inextricably connected as far as its transportation, energy, water, cyberspace and other infrastructure elements are concerned, the confederative institutions would control these links, as well as the entity's external borders. 

Germany could play a huge role in facilitating the implementation of such a plan both politically and economically. It would be crucial in helping both sides figure out how all this would function in detail and how it would be implemented. As a horizon of political hope and promise, as a path out of destruction and violence, this plan, or others like it, can change the trajectory of both politics and people's imagination. 

Germany proved in 1945 that with much help from others, there is a path out of devastation and horror. It could now help Israel and Palestine set out on a path to reconciliation and coexistence, in close cooperation with other allies, especially the United States. This could end up being Germany's greatest atonement for the event that precipitated the creation of the state of Israel, and its greatest contribution to a more peaceful 21st century.

Interview conducted by Ceyda Nurtsch

© Qantara.de 2024        

Omer Bartov, born in Israel in 1954, is professor of European History and German Studies at Brown University in Providence, Rhode Island, USA.