Francesca Albanese: ‘International law is on a knife’s edge’ over Gaza inaction

United Nations special rapporteur Francesca Albanese has doubled down on her criticism of Israel and world leaders for failing to stop the “colonial erasure” of Palestinians in Gaza, and called for more arrest warrants to be issued for Israeli leaders over suspected war crimes.

In a wide-ranging interview with Middle East Eye, Albanese accused the British foreign secretary of being a “genocide denier,” called on Europe to halt trade with Israel, and denounced the delay by the International Criminal Court (ICC) in issuing arrest warrants for Israeli leaders over Gaza atrocities. 

Albanese said the prosecutor of the Hague-based court was already late in applying for warrants in May of this year.    

“The International Criminal Court should have acted much earlier,” she said, referring to the investigation into allegations of war crimes and crimes against humanity in Israel and Palestine opened by the ICC in 2021 in a case that started over a decade ago.

In his request six months ago, ICC Prosecutor Karim Khan applied for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister at the time Yoav Gallant. He also requested warrants for three Hamas leaders, Yahya Sinwar, Ismail Haniyeh, and Mohamed Deif, all of whom have been killed by Israel over the past year. 

“We should have seen these people before the International Criminal Court … This is what justice is about. Instead, they were killed,” she said, adding that the ICC should seek more arrest warrants.

“There should be more in the dock, in my view. And it’s taking ages. This is because the political pressure on the international justice system is extreme.

“And we see pressure on the prosecutor, pressure on the judges. Israel is trying to obstruct it by moving exceptions against the independence of the judges. And the US is making pressure through open threats,” she added. 

Persona non grata

According to Albanese, the failure to issue arrest warrants is putting international justice on the edge.

“We might lose what we have, what we have built. Multilateralism is on the edge, and international law is on a knife’s edge. 

“It’s about us, all of us students, doctors, professors, journalists, ordinary people in the street to protect it if our elected government officials don’t do that.”

Middle East Eye hosted Albanese on 13 November during her visit to London, where she spoke with students and staff at four universities, including her alma mater, the School of Oriental and African Studies (SOAS). 

An Italian human rights lawyer, Albanese holds the title of the UN special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Appointed by the UN Human Rights Council in March 2022, she is the eighth person to hold that mandate since its creation in 1993, and the first woman.

As an independent expert, she is the principal investigator in charge of following and reporting to the council on the human rights situation in occupied Palestine. But Israel has treated her as persona non grata since the beginning of her mandate. 

She is a self-described “reluctant chronicler of genocide”. Within the past year, she has submitted two reports to the UN Human Rights Council, where she outlined her legal analysis on why the attacks on the Palestinian population may amount to genocide.

Over the past 12 months, Albanese has risen to become an icon on the international arena, using her mandate to publicly call out states at the UN for their responsibility to halt the continued Israeli onslaught on Gaza, which has killed tens of thousands of Palestinians, displaced the majority of the 2.3 million population, and made the enclave largely uninhabitable. 

‘The black South Africans experienced the most brutal part of the apartheid just one or two years before apartheid collapsed’

– Francesca Albanese

Western states that she accuses of complicity in genocide have waged a relentless campaign against her, with US officials calling for her dismissal and others accusing her of antisemitism, a charge she describes as part of attempts to smear and silence her. 

In her reports and public engagements, Albanese has spearheaded calls for unseating Israel from the UN.

In Albanese’s view, Israel should be isolated in the international arena in the same way as apartheid South Africa was during the apartheid era. This includes suspension from the UN General Assembly, as was the case with South Africa in 1974. 

Despite the notable surge in brutality in Gaza, she emphasised that she can foresee an end to the current situation.

“We shall not forget that the black South Africans experienced the most brutal part of the apartheid just one or two years before apartheid collapsed. So the brutality we see today also signals that we might be close to an end.”

Under Article 6 of the UN Charter, the General Assembly has the authority to expel a UN member state upon a recommendation from the Security Council, if the state has “persistently violated” the principles enshrined in the charter.

For Albanese, the case for suspending Israel is even stronger than that of South Africa. 

She used arguments such as persistent breaches of international law over the past seven decades, including legally binding Security Council resolutions and orders by the International Court of Justice, as well as the latest banning of the UN’s relief organisation for Palestinians (Unrwa) and killing hundreds of members of its staff in Gaza; attacks on UN peacekeepers in Lebanon, declaring the UN secretary general persona non grata, and barring UN special rapporteurs, including Albanese herself, from entering occupied Palestine since 2008. 

Albanese says that all states violate international law in one way or another, but the case for unseating Israel is becoming more cogent than ever. 

“Look at what Israel has done to the UN this year, accusing every one, and every possible organisation, from the secretary general, independent experts, particularly myself.

“I’ve been PNGed [declared persona non grata], but also the special rapporteur on the right to food, the special rapporteur on adequate housing have been violently attacked.”

The Israeli ban on Unrwa operations, a subsidiary organ of the General Assembly, is particularly “brutal” and must be faced with consequences to prevent its recurrence internationally, she said.

“This is pretty brutal, pretty unprecedented. It shouldn’t set a precedent, and this is why it should be followed by forceful measures.”

She called for a two-way arms embargo on Israel.

“It’s what is transferred to Israel, but also what is purchased from Israel, which is endangering all of us, because it consists of what Israel has experimented on the Palestinians for decades, and even now weapons that allow it to control masses, to confine masses and to exterminate masses.

“This is extremely dangerous. The surveillance system that Israel has perfected and then sold abroad, like Pegasus and other spying devices. All this must be stopped.”

Additionally, Albanese said Europe as Israel’s largest trade partner should sever these ties.

“There is no other way than cutting these ties, because these provide Israel the tools to continue to oppress the Palestinians,” she said. 

“Diplomatic, political, economic, military, strategic, and financial ties with Israel must be seriously reconsidered.”

‘Let’s talk about genocide’

Born in 1977 in Ariano Irpino, southern Italy, the 47-year-old is one of the youngest special rapporteurs in the UN’s history. Along with Italian, Albanese speaks English, French, Spanish, and Indonesian.

Albanese’s public challenging of Israel’s narrative has earned her celebrity status among the anti-genocide movement worldwide.

Her interactions with journalists and state leaders have garnered millions of views on social media, and her talks at universities have been received with standing ovations. 

Outside campuses where she held talks last week in London, she was received with solidarity protests by students holding Palestinian flags and counter-protests by those with Israeli flags and banners reading “ban Fran”.

In her interview with MEE, Albanese took aim at British mainstream media for amplifying the counterprotests. 

“Why give oxygen to these few individuals whose only job is to defend Israel at the time it is committing genocide? Let’s talk about genocide. Let’s talk about the unfolding, unabated, continuing destruction of Gaza, and let’s talk of the people, British or non-British, who stand powerfully against it and who are calling their policymakers to address this, to stop enabling this.

“In order to speak of my visit, they had to go through the ten flags and ten people who were out there protesting against an overwhelming majority of young people standing there in solidarity or to show their support to me,” she said, referring to media interviews. 

Colonial erasure

Despite being banned by Israel from entering occupied Palestinian territories, including Gaza, Albanese has gathered enough evidence to author two reports analysing the plausibility of a genocide unfolding in Gaza and the risk of it expanding to the West Bank and East Jerusalem. She has relied on interviews with victims and witnesses as well as input from experts and civil society organisations working on the ground. 

“Israel has no authority to bar fact-finding mechanisms from the territory that it illegally occupies,” she wrote in her latest report titled “Genocide as colonial erasure.”

The report, published last month, came on the heels of her March report that concluded that the threshold for the crime of genocide in Gaza had been met.  

‘In order to prove Israel’s genocidal intent, one should not miss the forest for the trees’

– Francesca Albanese

Her legal analysis shows that, in the first five months of the military campaign in Gaza, Israel was guilty of at least three of the underlying acts listed in the Genocide Convention of 1948, perpetrated against Palestinians as a protected group.

The acts, as stipulated in the convention, are: “Killing members of the group; causing serious bodily or mental harm to members of the group; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

To prove this crime, courts require the twofold evidence of the underlying acts and a specific intent to destroy the protected group, partially or totally. 

Evidence of intent, Albanese elaborates, can be derived from direct statements made by Israeli officials dehumanising Palestinians or advocating their erasure as a group, including forced displacement from their lands. It can also be inferred indirectly from the patterns, scale and nature of the attacks, she added.

She draws on extensive jurisprudence dating back to the Nuremberg trials that prosecuted Nazis for the Holocaust in the aftermath of World War II, cases before the International Court of Justice, and genocide convictions before the ad hoc tribunals for Rwanda and the former Yugoslavia. 

Her October report expands the analysis to include the context of settler colonialism, and the need to hold Israel as a state, rather than just officials, accountable. 

Albanese was among more than 30 UN experts who sounded the alarm about the risk of genocide in Gaza since November 2023. A month later, South Africa initiated its landmark case before the ICJ accusing Israel of genocide. 

She proposes a “totality triple lens” approach to inferring genocidal intent within the framework of a holistic approach that looks at the bigger picture of Israel’s state responsibility. 

“It’s the totality of the genocidal violence, the destructive violence that has been unleashed against the totality of the Palestinians in the totality of the land that Israel militarily controls,” she explained to MEE.

“That gives the broader picture, which inscribes itself in the long trajectory of colonial erasure that Israel has practised on the Palestinians.”

“In order to prove Israel’s genocidal intent, one should not miss the forest for the trees,” she said, referencing an approach used by the ICJ and voiced by six western states in an intervention before the court in the Gambia v Myanmar case. 

“This genocide case is particular because it’s the first settler-colonial genocide that gets litigated before an international court,” she said

“This is what makes the momentum even more important and it gives it gravitas,” she added.

Humanitarian camouflage

Among the key arguments made in her reports is the concept of “humanitarian camouflage,” or what she views as Israel’s recourse to the language of international humanitarian law to justify its actions.

This includes the use of terminology like “human shields” and “medical shielding” to justify attacks on civilians and hospitals, claiming that combatants are operating within them.  

“Israel has not denied its conduct. It has justified it as a legitimate one,” Albanese said.

‘Palestinians were moved around, ping-ponged and then corralled in areas where they would be killed or they would die anyway’

– Francesca Albanese

“For example, saying ‘we are just targeting terrorists, aren’t we?’ And those civilians who might die, they are human shields. It’s Hamas hiding behind them. And if it’s people far away from where Hamas might have been, well, they are collateral damage,” she added.

In contrast to the narrative advanced by Israel, it is the Israelis who have used human shields, she said. 

“The human shield is what we have seen Israel using, using Palestinians to go into the tunnels to see if there were booby traps… or Palestinians captured and tied on military jeeps before entering refugee camps,” she added.

Humanitarian camouflage also includes Israel’s use of terminology like “safe zones” to give the impression that civilians are allowed to flee to a safe zone, said Albanese.

“There were no safe zones. They were death zones,” she added.

“Palestinians were moved around, ping-ponged and then corralled in areas where they would be killed or they would die anyway,” she said. Those who haven’t been killed by design were left to die, she added. 

‘Genocide denier’

In the interview, the special rapporteur took aim at UK politicians downplaying the seriousness of the risk of genocide in Gaza. 

On 29 October, the British Foreign Secretary David Lammy suggested that Israel is not committing genocide in Gaza because millions of people have not been killed.

Terms like genocide, Lammy told parliament, “were largely used when millions of people lost their lives in crises like Rwanda, the Second World War, the Holocaust, and the way that they are used now undermines the seriousness of that term.”

On Wednesday last week, Prime Minister Keir Starmer reiterated similar statements, telling parliament in response to a question about the government’s lack of recognition of a genocide in Gaza: “I’m well aware of the definition of genocide, and that is why I’ve never referred to it as genocide.”

Commenting on Lammy’s statements, Albanese told MEE: “He’s referring to cases where genocide has resulted in industrial scale of killing, of mass extermination, like in Rwanda and during the Holocaust.

“But it’s not the numbers of those killed that determines whether or not there is genocide, and any lawyer would know that.

“I hadn’t realised that Mr Lammy was a lawyer,” she said, referring to Lammy’s legal background.

“As a politician, you might say that for political convenience,” she suggested, adding that his comments would still make him “a genocide denier”.

In addition to the genocides in Germany, Rwanda and Cambodia, the UK government recognises that genocides have been committed in Bosnia and against the Yazidi people in Iraq. 

More than 8,000 Muslim men and boys were killed by Bosnian Serbs in the town of Srebrenica in the former Yugoslavia in 1995, and over 5,000 Yazidis were killed in the 2010s by the so-called Islamic State group in Iraq. 

The international criminal tribunal for the former Yugoslavia took into account not only the substantial numeric size of the targeted group but also factors such as the emblematic nature of the targeted part of the group, whether the targeted group is essential for the survival of the population as a whole, and the prominence of the geographical location for its inhabitants.  

Middle East Eye has contacted Lammy for comment on Albanese’s remarks. His office responded saying that the foreign secretary didn’t specify that genocide required “millions of people to be killed”. 

“He simply observed that the term has ‘largely’ applied to such cases,” a foreign office spokesperson told MEE. 

“The UK‘s long-standing policy is that any judgement as to whether genocide has occurred is a matter for a competent national or international court, rather than for governments or non-judicial bodies,” a spokesperson said.

Likewise, when approached by MEE for comment, Starmer’s team referred the request to the Foreign Office, which responded saying genocide should be declared by a competent court after consideration of evidence in a judicial process. 

‘The question to Mr Lammy is: what is the UK doing to prevent acts of genocide?’

– Francesca Albanese

But Albanese thinks the world should not wait for the outcome of a judicial process.

She emphasised that states have an obligation under international law to prevent genocide, not just to refrain from committing it.

“The question to Mr Lammy is: what is the UK doing to prevent acts of genocide? Because the International Court of Justice has recognised the plausibility of genocide, she said, refering to the provisional measures ordered by the court this January in the genocide case brought by South Africa against Israel.  

Albanese urged Lammy to review his stance, saying he still has the opportunity to do so with the changing developments on the ground. 

“Let’s assume that it’s in good faith… there is always time to change someone’s mind when the circumstances on the ground change,” she said. 

Albanese said there is a better chance to prevent genocide now that checks and balances exist to a certain degree around the world, and with developments in international human rights law and international legal system since World War II. 

“We can talk about past mistakes and crimes, but I’m interested in stopping the genocide now. So let’s wake up and do better.”