This is the english version of an article first published by Causeur.fr on November 15th, 2023
On November 9, a collective of 300 lawyers filed a complaint against the State of Israel before the International Criminal Court for the crime of genocide.
A few media outlets and influencers like Booba echoed this.
The term genocide was coined in 1944, following the attempted extermination of the Jewish people by the Nazis. Of course, it is not limited to this. In 1946, the United Nations General Assembly made it a crime under international law.
Above all, it is defined by the United Nations Convention of December 9, 1948 on the Prevention and Punishment of the Crime of Genocide. Article 2 states that :
"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,(emphasis added) as such:
- Murder of band members;
- Serious physical or mental harm to group members ;
- Intentional subjection of the group to conditions of existence intended to bring about its total or partial physical destruction;
- Measures to prevent births within the group ;
- Forced transfer of children from one group to another".
Thus, according to the classic diptych of criminal law, the crime is composed, in addition to a material element, of an intentional element, in this case "the intention to destroy, in whole or in part, a national, ethnic, racial or religious group".
In the present case, beyond any disputes that may arise as to the materiality of the attack, there is no objective evidence to support Israel's intention to destroy the Palestinians. Not since October 7, since Israel has even been criticized for asking the Gazans in the North - particularly exposed because Hamas has set up its operational bases there - to flee to the South. Nor, of course, before October 7 (this clarification is worth making since, as we shall see, the draft complaint is old): In 2017, the most recent year for which we have found figures, the annual growth in the population of the Gaza Strip was 2.97% (https://www.pcbs.gov.ps/portals/_pcbs/PressRelease/Press_En_Preliminary_Results_Report-en-with-tables.pdf).
This is a tautology, but in the absence of genocidal intent, there is no genocide. To claim otherwise is legal nonsense.
Does this mean that no complaint to the International Criminal Court can have any meaning for the facts of which the Gazans are victims?
The question of the existence of war crimes, as distinct from genocide, arises. Even beyond the use of this territory to hold Israeli civilian hostages captive (which the authors of the complaint don't seem to care about), it is no longer disputed that the Palestinian terrorist organization uses its hospitals, schools and entire population as shields.
Such a complaint (for war crimes and not limited to Israel) would not be without relevance. It cannot be expected of its authors, at least not of its principal author.
Lyon lawyer Gilles Devers, head of the lawyers' collective, claimed on camera after the complaint was lodged that he had set up "an army of lawyers". We'd like to think that this warlike phrase is just clumsy, or even a slip of the tongue, even if it is revealing. Alas, it's a claim.
In fact, Gilles Devers was preparing the complaint even before October 7. His principal at the time was... Hamas. Le Monde wrote in an article published on the very day of the attacks: "Ironically, on Monday October 9, Hamas was supposed to file a complaint with the International Criminal Court, in the form of a thick 400-page volume detailing the human rights violations committed by Israel in Jerusalem, in particular the colonization and forced transfer of a population dislodged by Jewish settlers. This initiative has obviously been frozen. "The armed wing of the movement decided that it was time to act, so we decided to postpone filing the complaint," confides Gilles Devers, Hamas's French lawyer."
Here, then, is an unfounded action for genocide, brought in the interests of an organization guilty of the October 7th pogroms, which had a genocidal motive of their own. Articles 7 and 13 of the Hamas Charter state that its objective is the destruction of Israel.
If a lawyer is not the same as his client, a complaint prepared on behalf of a murderer is indeed the same as the complaint subsequently filed on this basis, by the same counsel, even if the name of the previous client is removed.
It is regrettable that an auxiliary of justice should now remain silent about the fact that he was (is?) acting in the name and on behalf of the terrorist organization that started the war and should, logically, be the main target of his own complaint. This is regrettable for the International Criminal Court, which is being swindled out of its judgment; regrettable for the other lawyers who have joined his action, and who we hope will not wish to find themselves de facto lawyers for Hamas; regrettable above all for the Palestinian victims, whose action has been discredited.
Basically, the explanation for the procedural choices made in this complaint is summed up in an article by Mr. Joseph CONTAVREUX in Médiapart: "To assert that a country, created to serve as a refuge for a genocided people, is today committing genocide, is to call into question the very reasons for Israel's existence". By accusing Israel of genocide, Hamas, its willing accomplices and useful idiots are questioning its very existence.
War, wrote Clausewitz, is the continuation of politics by other means. The complaint against Israel before the International Criminal Court seems to be an attempt to continue the pogrom of October 7, 2023 by other means.
Alexandre-M. BRAUN
Attorney at Law
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