Futile: Palestinians live among the wreck and rubble of buildings destroyed by Israeli Defence Forces in Gaza. Photo: Abed Rahim Khatib/Anadolu/Getty Images
About 45 South African lawyers want to file a civil class action suit against the governments of the United States and United Kingdom for “blood money” to compensate the people of Gaza, who they say are victims of war crimes and genocide at the hands of the Israel Defence Forces (IDF).
“Blood money” is a tenet of justice in Islamic Sharia Law.
The attorneys will need the assistance of engineers, building professionals and others to calculate the costs of rebuilding Gaza and providing support to its people.
This is according to Durban advocate Saleem Khan, one of the attorneys who have sent letters to US President Joe Biden and British Prime Minister Rishi Sunak and their governments, placing them on notice of their intention to hold them liable “for all the atrocities that the Palestinian people were subjected to” since the 1917 Balfour Declaration.
The declaration was a public statement released by the British government during World War I announcing its support for the establishment of a “national home for the Jewish people” in Palestine, which, until then, had been a largely Ottoman region with a minority Jewish population.
In the letters sent by Wikus van Rensburg Attorneys, the lawyers highlight the role the US and the UK have played in supporting the IDF with weapons over the years.
“We, together with a group of lawyers from South Africa, act on behalf of all the Palestinian people who are directly affected by the ongoing international crimes and displacement perpetrated by the Israeli government and its armed forces since, but not limited to, 1948,” the attorneys wrote.
“We intend to bring legal proceedings against the US government based on overwhelming evidence that the US government has, and is, aiding, abetting and supporting, encouraging or providing material assistance and means to Israel and the Israeli Defence Forces [which] continues to enable Israel to engage in international crimes against the Palestinian people.”
These alleged crimes resulted in the displacement of Palestinians from their homes and property, the destruction of Palestinian property, the theft of Palestinian land as well as war crimes, crimes against humanity, genocide and the intentional killing of civilians, including women, children, babies and older and disabled people.
“Without going into the historical background of the US government’s blind support for Israel, which is in excess of the past 75 years, the US government has recently used purported emergency authority provisions to provide 14 000 tank shells, among others, to Israel without congressional review,” the attorneys wrote.
“In particular, the US government has indicated that it supposedly used the Arms Export Control Act … emergency declaration for the tank rounds worth approximately $106.5 million for delivery to Israel early in December 2023. The US government did this knowing that thousands of innocent Palestinians, mostly women and children, have been killed, and are still being killed, by the Israeli government under the hand of its armed forces.”
The attorneys said the tank shells were part of a larger arms package worth more than $500 million for which US congressional approval will be sought.
Regarding the role of the UK in Gaza, the attorneys said the Balfour Declaration, motivated by the country’s political interests in the region, had introduced a notion, unprecedented in international law, of a “national home” for Jewish people. They said the declaration was “viewed as one of the main catalysts of the Nakba, the ethnic cleansing of Palestine in 1948, and the conflict that ensued with the Zionist state of Israel”.
“In essence, the Balfour Declaration promised Jews a land where the native Palestinian Arabs made up more than 90% of the population.”
In addition, the attorneys noted, the UK has licensed at least £474 million worth of military exports, including components for combat aircraft, missiles, tanks, small arms and ammunition to Israel since 2015.
“The UK provides approximately 15% of the components in the F35 stealth bomber aircraft currently being used in Gaza, including the rear fuselage and active interceptor system, ejector seats, aircraft tyres, refuelling probes, laser targeting systems, and fan propulsion systems. Durability testing for the F-35 is also undertaken in the UK.”
Legal analysis in recent years by international human rights organisations, such as Amnesty International and Human Rights Watch, alleges that the Israeli government is committing crimes of apartheid and persecution according to definitions in international law, the attorneys argued in the letters.
They said the governments had been “placed on notice of our intention to hold it liable for all the atrocities that the Palestinian people were subjected to since 1917 and will seek various court orders in terms of international criminal law and international law in general, seeking justice and compensation, and repatriation of the Palestinian people”.
Khan said the group of lawyers had decided to support the people of Palestine before South Africa’s case of genocide filed against Israel at the International Court of Justice (ICJ) in December. He said the attorneys had taken action purely in the interests of peace and justice in the region.
“We are guided and motivated by two factors only: one, justice and two, peace … We have not been funded by anyone at all. Each lawyer is carrying [their] own costs pro bono [and] we’ll continue with this pro bono unless it becomes necessary to obtain funding,” Khan said, adding that international lawyers had also shown interest in joining the class action suit.
The attorneys would, if necessary, file a class action suit at the ICJ, which has universal jurisdiction to rule on the matter. But Khan said the group was “sincerely hopeful” that the issue of compensation by the US and UK governments could be settled “amicably” out of court, which is the purpose of sending the initial letters.
“Class action [is] instituted on behalf of the entire group or class that have suffered damages. In this case, phenomenal damages for which they require reparation — loss of life, dependents’ claims where little children who would have enjoyed the maintenance and support of the parents have now lost the parents,” Khan explained.
“Then there is the reconstruction of Gaza, which has been destroyed, and various different types of claims. There are those who would have survived the attacks but who would have developed different types of conditions as a result of the attack — psychological conditions, injury sustained, people would be maimed … so it’s a vast array of claims. It incorporates all types of damages you could conceive of.”
He said the next step would be to compute the cost of the damages, adding that the ICJ has developed a formula for compensation.
“It will assist them if we were to present to them, for example, the approximate cost of rebuilding Gaza and to that end, we are going to elicit the expert assistance of engineers, quantity surveyors, chartered accounts, builders, of all people whose expertise would be relevant to that type of computation and then we can with conviction tell the ICJ this is what it’s going to cost to rebuild Gaza,” he said.
From the Palestinian perspective, compensation is not foreign to Islam, Khan said. “Islam speaks in terms of blood money. So where ‘X’ kills ‘Y’ and ‘Y’s’ family is destitute, the family can enter into an agreement with the murderer, where he’s required to pay compensation.
“If you compare that with the Western system where the murderer is convicted of murder, and he spends the rest of his life or a substantial part of his life in prison, he’s of no use to anyone. In fact, the taxpayer is supporting him in prison, whereas in the Islamic system where he is in certain instances made to work in order to compensate the dependents, this is called the payment of blood money in Sharia.
“Once the matter is settled, you don’t expect there to be surreptitious attacks or revenge attacks,” Khan added.
He said the UK government had acknowledged receipt of the letter.
The US and UK governments had not responded to the Mail & Guardian’s requests for comment by the time of going to print.
According a White House fact sheet dated 19 October 2023, support for Israel’s security has been a cornerstone of American foreign policy since the presidency of Harry Truman.
In addition, the US and Israel have signed multiple bilateral defence cooperation agreements including a Mutual Defence Assistance Agreement (1952); a General Security of Information Agreement (1982); a Mutual Logistics Support Agreement (1991); and a Status of Forces Agreement (1994).
UK Ambassador Barbara Woodward told a United Nations Security Council Meeting in December that her country supported Israel’s right to defend itself against Hamas and terrorism but that it must be targeted in its approach. While condemning the 7 October attack by Hamas militants, she said the number of civilians killed in Israel’s retaliatory strikes on Gaza was shocking and the displacement of a large chunk of the population should not continue.
In its genocide case at the ICJ, South Africa called for provisional measures to be taken against Israel, and that it withdraw troops from Gaza. The ICJ held public hearings into the matter earlier this month. At the time of writing, judgment was expected to be delivered in the ICJ on 25 January.