Netanyahu and the IDF Provided All the Evidence the ICJ Needed

Melvin Goodman

January 29, 2024

The International Court of Justice in The Hague ruled last week that Israel must prevent genocide in Gaza and provide greater assistance to the Palestinians.  Sadly, the ICJ did not call for a cease-fire, which is desperately needed, but it demonstrated genuine understanding of the Israeli war crimes that point to genocidal intentions as stipulated by the Geneva International Genocide Convention in 1948.

The Court not only ruled that South Africa can continue its case against Israel over charges of genocide, but it acknowledge the risk of genocide against the Palestinian population.  As a result, the Court issued a preliminary order barring Israel from killing members of the Palestinian population; causing serious bodily or mental harm; and creating conditions to create the “physical destruction in whole or in part” to the Palestinian population.  The Court even implied that Israel was “imposing measures intended to prevent births within the group.”

Israel was given one week to report to the Court on its compliance with the Geneva Convention.  Thus far, Israeli spokesmen have given no indication that they will comply with the Court’s ruling, and several Israeli spokesmen have already displayed clear defiance of the ruling.  Prime Minister Benjamin Netanyahu, who appears to require this war in order to save his political and personal career, predictably expressed outrage at the ruling.

Meanwhile, Netanyahu’s actions and statements as well as the actions of the Israeli Defense Forces (IDF) point to more Israeli war crimes that thus far have taken the lives of more than 26,000 Palestinians, mostly women and children.  The South African charge that Israel has meant to “create conditions of death” in Gaza is easily documented. 

The 1948 genocide convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group.”  An excellent example of Israel’s willingness to destroy a civilian community took place in October, when the IDF conducted a massacre, using 2,000 pound bombs to destroy buildings in northern Gaza that killed and wounded nearly 400 civilians.  The singular target, according to the IDF, was a senior Hamas commander, who may or may not have been killed.  An Israeli spokesman acknowledged that no warning was given to the Palestinian civilians because “that would have allowed” the commander to escape.

Over the past several months, the Israelis have pursued a policy to ensure that Gaza would never be habitable again.  The Israeli ambassador to the UK stated that Israeli had to lay waste to Gaza because “every school, every mosque, every second house” was connected to a tunnel for Hamas, which reflects Israel’s argument for destroying the whole of Gaza and every single building in it.  The Israelis have destroyed shelters, even those they have directed Palestinians to occupy, and they have destroyed more than a dozen Gaza cemeteries reportedly to exhume bodies in a search for Hamas victims.  As an IDF officer remarked, “Whoever returns here, if they return here after, will find scorched earth.  No houses, no agriculture, no nothing.  They have no future.”  This points to genocide.

The facts on the ground support these hideous comments.  According to an analysis in the Wall Street Journal, “nearly 70 percent of Gaza’s 439,000 homes and about half of its buildings have been damaged or destroyed.  Much of the water, electrical, communications and healthcare infrastructure that made Gaza function is beyond repair.”  Of Gaza’s 38 hospitals, only a handful can accept patients.  Two-thirds of Gaza’s school buildings have been damaged or destroyed, as have several churches and more than 100 mosques.  Israel has killed more civilians in Gaza in several months than the United States and its allies did in a three-year campaign against the Islamic State.  There is no greater example of collective punishment since the end of WWII.

A Polish Jewish lawyer, Rafal Lemkin, developed the term “genocide” and campaigned to establish the Geneva Convention because of Germany’s extermination policies against Jews and Poles in WWII.  The term of “genocide” may have been new, but the concept and practice are old.  The genocide convention was based primarily on Lemkin’s work.  The fact that it is Israelis who are committing these crimes is particularly tragic and ironic in view of their history.  If ever there was a “chain of hate” it is the example of the Israelis doing to the Palestinians what the Germans did to European Jewry. 

Meanwhile, the United States has done virtually nothing to stop the Israelis from their genocidal operations.  The fact that the United States provides the 2,000-pound bombs that are cratering huge sections of Gaza and destroying civilian infrastructure makes the Biden administration complicit.  President Biden’s dismissal of South African charges as “meritless” was cold and unworthy.  Secretary of State Blinken’s constant references to a “two-state solution” demonstrate ignorance of the current situation and Israeli designs.  The U.S. veto of a Security Council cease-fire resolution in December, which had broad support, can only be viewed with shame and regret.

 

How South Africa Lost Its Genocide Case Against Israel

Bill Blum

The verdict is in. On Jan. 26, the International Court of Justice ordered Israel to abide by six “provisional measures” — the rough equivalent of a temporary restraining order — in its war against Hamas. The ruling requires Israel to “take all measures within its power to prevent the commission of acts” of genocide “in relation to Palestinians in Gaza.” The ruling also requires Israel to prevent and punish individuals who make public statements inciting genocide; preserve evidence related to allegations of genocide; improve the provision of humanitarian aid to the embattled enclave; and report back to the court in one month on steps it has taken to comply with the ruling.

These are all important measures. Under both the U.N. Charter and the ICJ’s founding statute, they are considered legally binding. But they do not include the primary item of relief sought by South Africa — that Israel immediately suspend its military operations. Seen in this light, South Africa’s case must be deemed a failure.

International courts are different from their domestic counterparts. But if you’re looking for an analogy to the American legal system, you can think of South Africa’s legal team as a district attorney’s office that charges a defendant with premeditated murder but winds up with a conviction for involuntary manslaughter, a suspended jail sentence and assorted conditions of probation.

Speaking after the ruling to reporters on the steps of the Peace Palace, where the ICJ sits in The Hague, Netherlands, South Africa’s Foreign Minister Naledi Pandor did her best to portray the decision as a triumph tantamount to a cease-fire order. “How do you deliver humanitarian aid without a cease-fire? How do you provide water, access to energy? How do you ensure that those who are injured have health care and so on?” she asked. “Without a cease-fire, not one of these things can be done.”

Unfortunately, outside the world of political spin, the war continues, and despite ongoing diplomatic efforts to pause the fighting, both Hamas and Israel seemingly remain committed to battle to the bitter, bloody end.

Why did South Africa’s demand for a cease-fire fail?

The ICJ is a Western institution, and some studies suggest that its judges tend to vote in the interests of their home countries, reflecting an overall bias against developing nations. The current court, however, consists of 15 jurists from the United States, Somalia, China, Slovakia, France, Morocco, Brazil, Uganda, India, Jamaica, Australia, Russia, Lebanon, Japan and Germany, and can hardly be seen as pro-Israel. In addition to the court’s permanent members, both South Africa and Israel were permitted to appoint one ad hoc judge each to participate in the case, creating a diverse panel of 17 judges that heard oral arguments from South Africa on Jan. 11 and from Israel the following day.

South Africa’s failure is all the more egregious given the low standard of proof that applies at the initial phases of adversarial proceedings before the ICJ. As the court’s decision explains, at the provisional-measure phase of the case, South Africa, as the Applicant or moving party, did not have to prove conclusively that Israel had committed genocide, but only had to make a “prima facie” showing that that court had jurisdiction to hear the case under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (which both South Africa and Israel have signed) and that its claims were “plausible.” A more definitive showing will be required at a later date when a full trial on the merits is calendared and conducted.

A better explanation for the failure is a series of unforced litigation errors by South Africa’s legal team, which included several seasoned experts on international law. The first of these involved the flaw of “overcharging,” an abuse common among American prosecutors seeking maximum punishment and dramatic effect that sometimes backfires with juries. Instead of keeping to the allegations of genocide from Oct. 8 forward, South Africa’s advocates sought to “contextualize” Israel’s military operations as the outgrowth of its “75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”

Such a broad context approach may play well on social media, but not in the courtroom, where the approach fed directly into Israel’s counter-narrative, made with great impact during its oral arguments, that South Africa was acting as a proxy for Hamas seeking to delegitimize its very existence as an independent nation. As the court’s decision indicates, it focused its ruling solely on the “immediate context” of Hamas’ Oct. 7 attack on Israel and Israel’s response.

South Africa’s second big mistake was its unwise refusal to acknowledge Israel’s right to self-defense. Oxford University law professor Vaughn Lowe, a king’s counsel of the highest standing bearing a physical likeness to John Mortimer’s fictional Horace Rumpole, went so far as to argue that as an occupying power, Israel had no right to self-defense whatsoever in Gaza.

Lowe’s declamations went over like a lead balloon, highlighting a third unforced error by South Africa’s advocates — that in their zeal to win, they allowed themselves to be easily out-lawyered by their opponents. Among the points made by Tal Becker, the legal adviser for Israel’s Foreign Ministry who opened Israel’s oral arguments on the second day of the hearing, was that Lowe had taken exactly the opposite position in a 2005 study published by Chatham House, an influential international-affairs think tank, in which he wrote:

The source of the attack, whether a state or non-state actor, is irrelevant to the existence of the right” [to self-defense]. “Force may be used to avert a threat because no-one, and no state, is obliged by law passively to suffer the delivery of an attack.

Becker’s rejoinder clearly resonated with the judges, who, in addition to the provisional measures imposed on Israel, concluded:

The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.

But of all the unforced errors committed by South Africa, the most serious was its failure to join Palestine as a party to the case. The ICJ has no jurisdiction over non-state actors like Hamas, but since 2018, Palestine has been recognized as a state entitled to appear before the court with legal jurisdiction over both the West Bank and Gaza. Whatever South Africa’s reasons for deciding to proceed alone, Palestine’s absence meant that any cease-fire order would be unilateral and apply only to Israel. That limitation in the end proved unacceptable to the court.

Where do we go from here? The next step requires Israel to file a progress report with the ICJ in late February. Depending on the nature of the report, the case will then enter a long phase akin to the discovery and law-and-motion process in American courts. This could take years to complete before a full trial is held.

In the meantime, the International Criminal Court, also located in The Hague, has opened an investigation into both Hamas and Israel. Unlike the ICJ, it has the power to indict, arrest, try and imprison war criminals and perpetrators of genocide. Last March, the ICC issued an arrest warrant for Vladimir Putin. A similar fate may well await Israel’s Bibi Netanyahu and Hamas’ Yahya Sinwar, along with many of their war-mongering and lawless cohorts.

 

Genocide in Gaza as an Opportunity: What Ben-Gvir Wants in the West Bank

Ramzy Baroud

If what is currently happening in the occupied Palestinian West Bank took place before October 7, our attention would have been completely fixated on that region in Palestine.

The ongoing Israeli genocide in Gaza, however, has devalued the important, if not earth-shattering events underway in the West Bank, which is now a stage for the most violent Israeli military campaign since the Second Palestinian Uprising (2000-05).

As of the time of writing of this article, since October 7, more than 360 Palestinians have been killed in the West Bank, while thousands have been wounded and thousands more arrested.

These numbers exceed, by far, the total number of Palestinians killed in 2022, which was already designated by the United Nations as the most violent year on record since 2005.

But how are we to understand the logic behind the Israeli violence in the West Bank, considering that it is already under Israeli military occupation and the joint ‘security’ control of the Israeli army and the Palestinian Authority?

Moreover, if the Israelis are honest in their claim that their war in Gaza is not genocide against the Palestinian people but a war on Hamas, why are they attacking the West Bank with such ferocity, killing people from all different political and ideological backgrounds, and many civilians, including children as well?

The answer lies in the growing political power of the Jewish settlers.

Historically, there are two types of Israeli violence meted out routinely against Palestinians: violence carried out by the Israeli army, and another carried out by illegal Jewish settlers.

Palestinians fully understand that both phenomena are intrinsically linked. The settlers often attack Palestinians under the protection of the Israeli army, and the latter often launches violent raids on Palestinians for the sake of the illegal settlers.

In recent years, however, the relationship between these two violent entities began to change, thanks to the rise of the far right in Israel, which is situated mostly within illegal settlements, and their supporters inside Israel.

Therefore, it should not be a surprise that both far-right ministers in the extremist government of Benjamin Netanyahu, Itamar Ben-Gvir and Bezalel Smotrich, are themselves settlers.

As soon as Ben-Gvir claimed the role of the National Security Minister, he began promoting the idea of establishing a National Guard. After October 7, he managed, with direct support from Netanyahu’s government, to establish so-called civilian security teams.

Even Israeli officials, like Yair Lapid, have described Ben-Gvir’s new army as a “private militia”. And he is right.

Though Ben-Gvir is insisting that the war on Gaza must continue, his actual aim out of its continuation – aside from the ethnic cleansing of the Gaza population – is to use this rare opportunity to fulfill all the wishes of Israel’s political extremists, all at once.

Let us remember that Ben-Gvir came to power based on the lofty promises of annexing the West Bank, expanding settlements, seizing control of Palestinian holy sites in East Jerusalem, among other extremist ideas.

Al-Aqsa Mosque was a major target for Ben-Gvir and his followers, who believe that only by building a Third Temple on the ruins of Islam’s third holiest shrine would Israel be able to reclaim total control over the Holy Land.

Ben-Gvir’s bizarre political language could have been dismissed as the extremism of a fringe politician. Far from it. Currently, Ben-Gvir is arguably the most powerful politician in Israel, due to his ability, using six seats in the Knesset, to make or break Netanyahu’s coalition.

While Netanyahu is behaving largely out of desperation, his Defense Minister Yoav Gallant is fighting to redeem the tattered reputation of his army. Others, like War Council Minister, Benny Gantz, are walking a political fine line so as not to be perceived as the ones who have broken Israel’s fragile political unity during a most decisive war.

None of this applies to Ben-Gvir. The man, who sees himself as the political descendant of the likes of the notorious Meir Kahane, is a fervent advocate of a religious war.

And since religious wars can only be the outcome of chaotic social and political circumstances, he is keen to instigate these very events that could ultimately lead to this coveted war.

One of the prerequisites is unhinged violence, where people are killed based on the mere suspicion of being ‘terrorists’. For example, on January 18, Ben-Gvir told Israeli border police officers during a visit to a base in the West Bank, “You have complete backing from me”, urging them to shoot at every ‘terrorist’, even if they do not pose a threat.

Of course, Ben-Gvir perceives all Palestinians in the West Bank as potential terrorists, the same way that Israel’s ‘moderate’ President Isaac Herzog perceives all Gazans as “responsible” for Hamas’ actions. This essentially means that the Israeli army in the West Bank is expected to kill Palestinians there with the same impunity as those being killed in Gaza.

Even though security and intelligence officials in Israel have warned Netanyahu against launching another war front in the West Bank, the Israeli army has no other option but to fight that supposed ‘war’ anyway. Why?

The Israeli army is already seen by a large constituency in Israel as a failure for their inability to prevent or to respond successfully to the October 7 attacks, even after over 100 days of war in Gaza. To redeem their tarnished honor, they are happy to fight a less challenging ‘war’ against isolated and under-equipped Palestinian fighters in small parts of the West Bank.

Ben-Gvir is, of course, ready to manipulate all these elements in his favor. And he is getting precisely what he wants, expanding the war to the West Bank, ethnically cleansing Palestinians, torturing prisoners, demolishing homes, torching properties and all the rest.

Perhaps Ben-Gvir’s greatest achievement, so far, is his ability to create a perfect amalgamation between the political interests of the settlers, the government and its security apparatus.

His aim, however, is not merely stealing yet more Palestinian land, or expanding a few settlements. He wants a religious war, one which will ultimately lead to the ethnic cleansing of Palestinians, not just from Gaza but from the West Bank as well.

The war in Gaza is a perfect opportunity for these sinister goals to be achieved. For now, this genocidal war continues to create opportunities for religious Zionism to acquire new followers, and to lay deeper roots within Israel’s political establishment.

A sudden end to the war, however, could represent the marginalization of religious Zionism for years to come.

 

What Happens Now That the ICJ Has Ordered Israel Not to Engage in Genocide?

Marjorie Cohn

What comes next, now that the International Court of Justice (ICJ), also known as the World Court, has handed down its near unanimous ruling that South Africa presented a “plausible” case that Israel was violating the Genocide Convention?

The January 26 provisional ruling – which was a landmark victory for the Palestinian people, and indeed, for international law itself — now goes to the United Nations Security Council for enforcement. It would be within the Security Council’s purview to order economic or trade sanctions, arms embargoes, travel bans or even military force.

But in the likely event that the United States vetoes enforcement measures from the Security Council, the UN General Assembly can still act independently in materially significant ways.

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The ICJ’s final decision in this case could take several years. But given the urgency of the mass death and humanitarian crisis currently unfolding, the court has in the meantime ordered six “provisional measures” to protect the Palestinians in Gaza from genocidal acts while the court finishes considering the merits of the case.

In its ruling, the court said it is “acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.” It described the civilian population in Gaza as “extremely vulnerable,” noting “tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale.” The court added that the “operation is ongoing” and that Israeli Prime Minister Benjamin Netanyahu had stated it “will take many more long months.” The court noted, “At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”

Provisional Measures the ICJ Has Ordered Israel to Immediately Implement

The ICJ ordered Israel not to commit genocidal acts against Palestinians in Gaza immediately, even as the ICJ continues its slow process of officially considering the merits of the genocide case.

The court concluded that “the catastrophic humanitarian situation” in Gaza “is at serious risk of deteriorating further before the Court renders its final judgment.” Moreover, the court said that the right of the Palestinians to be protected against genocidal acts and South Africa’s right (as a party to the Genocide Convention) to ensure Israel’s compliance with the cnvention could be safeguarded by provisional measures.

The ICJ found “a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible.” The court wrote, “It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by South Africa that the Court has found to be plausible.” They are:

1.      Israel shall take all measures within its power to prevent the commission of all genocidal acts, particularly (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 bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.

2.      Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.

3.      Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide.

4.      Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.

5.      Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence.

6.      Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month from the date of this Order.

The court affirmed that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law.” It said it is “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups” and called for “their immediate and unconditional release.”

Votes on the provisional measures were 15-2 or 16-1. Ugandan Judge Julia Sebutinde dissented from all of them. Israeli ad hoc Judge Aharon Barak dissented from all except the measures requiring Israel to prevent and punish incitement to commit genocide and to allow humanitarian aid into Gaza.

Now that the ICJ has ordered provisional measures, how will its order be enforced?

Actions the UN General Assembly Can Take If US Vetoes Enforcement by Security Council

If the U.S. vetoes enforcement actions via the Security Council, the General Assembly can convene under Uniting for Peace, a resolution passed by the General Assembly to bypass the Soviet Union’s veto during the Korean War. The General Assembly can recommend that its member states impose arms and trade embargoes on Israel and organize a military force to intervene in Gaza. The General Assembly could also suspend Israel from its ranks. These decisions would require a vote of two-thirds of the 193 member states of the General Assembly.

“A strong resolution there could call for specific legal, economic, political, diplomatic, consular, organizational and other measures. And individual states and regional orgs should act as well, as a matter of legal duty under the convention and under the Charter,” according to Craig Mokhiber, former director of the New York Office of the UN High Commissioner for Human Rights, who resigned in 2023 because the UN was not ending what he called Israel’s “textbook case of genocide.”

“Third States are now on notice of the existence of a serious risk of genocide against the Palestinian people in Gaza,” the South African Department of International Relations and Cooperation said in a statement. “They must, therefore, also act independently and immediately to prevent genocide by Israel and to ensure that they are not themselves in violation of the Genocide Convention, including by aiding or assisting in the commission of genocide. This necessarily imposes an obligation on all States to cease funding and facilitating Israel’s military actions, which are plausibly genocidal.”

How Does the ICJ’s Provisional Decision Relate to Calls for Ceasefire?

Although the court did not order that Israel “immediately suspend its military operations” in Gaza, as requested by South Africa, the provisional measures it did order effectively require a ceasefire. The ICJ’s orders forbid the genocidal killing of Palestinians and mandate that Israel allow humanitarian aid into Gaza, which cannot be accomplished without a ceasefire.

“How do you provide aid and water without a ceasefire? If you read the order, by implication a ceasefire must happen,” South African Foreign Affairs Minister Naledi Pandor said in a statement to the press following the ruling.

Even though the ICJ’s provisional decision did not explicitly call for a ceasefire, it actually requires one. It also bolsters the ceasefire campaign and the international pressure in support of Palestinian liberation as it recognizes the fundamental human rights of Palestinians.

South Africa’s ministry of foreign affairs described the decision as “a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”

Lawyers for Palestinian Human Rights called the ICJ’s decision “a much-needed light in the darkness,” adding, “It is a historic day for clearly recognising the fundamental human rights of Palestinians, including their fundamental right to life, and an important vindication of the vital resort to law to uphold fundamental rights.”

Former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory Richard Falk said the decision “marks the greatest moment in the history of the [court]” because “it strengthens the claims of international law to be respected by all sovereign states — not just some.”

Israel Attempts to Mitigate Damage to Its Global Standing on the World Stage

Not surprisingly, Israel rejected the decision of the World Court. Netanyahu called it “outrageous” and characterized the charges of genocide against Israel as “unfounded.” National Security Minister Itamar Ben Gvir labeled the ICJ “antisemitic,” adding, “This court does not seek justice, but rather the persecution of Jewish people.… Decisions that endanger the continued existence of the State of Israel must not be listened to.”

Even before the ICJ decision was announced, Israeli leaders were doing fancy footwork to try to contain the anticipated fallout and defend the idea that Israel had ordered increased humanitarian aid to Gaza.

In anticipation of the ICJ decision, Israel declassified more than 30 secret orders of government and military leaders that Israel says rebut South Africa’s charge that it committed genocide in Gaza. Israel claims the documents actually show that its government attempted to reduce civilian casualties.

The documents included summaries of cabinet meetings in late October, in which Netanyahu ordered supplies of aid, water and fuel to be delivered to Gaza. He told the government to determine whether “external actors” could establish hospitals to treat Palestinians in Gaza, and possibly moor a hospital ship off the coast.

Minutes of a November 14 cabinet meeting say Netanyahu continually stressed the need to significantly increase humanitarian aid to Gaza. Another document said, “It is recommended to respond favorably to the request of the U.S.A. to enable the entry of fuel.” Minutes of a November 18 cabinet meeting say Netanyahu emphasized “the absolute necessity” of continuing to allow basic humanitarian assistance into Gaza.

“But the dossier is also highly curated and omits most wartime instructions given by the cabinet and the military,” according to The New York Times. “The available documents do not include orders from the first 10 days of the war when Israel blocked aid to Gaza and shut off access to the electricity and water it normally provides to the territory.”

“When you’re trying to prove that you didn’t give an order to do something, obviously you’re going to show orders that indicate something else,” William A. Schabas, international law professor at Middlesex University in London and author of Genocide in International Law, told the Times. “And if there is an order to do something or a plan to do it, you’re not going to provide that.”

In its ruling, the ICJ acknowledged Israel’s claim “that it has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip.” But, the court added, “While steps such as these are to be encouraged, they are insufficient to remove the risk that irreparable prejudice will be caused before the Court issues its final decision in the case.”

The US Cuts Funding for Humanitarian Aid to Gaza in the Wake of the ICJ’s Ruling

The same day the ICJ ruled that Israel must allow humanitarian assistance to Palestinians in Gaza, Israel charged that 12 staff members of the UN Relief and Works Agency (UNRWA) were involved in the October 7 attacks by Hamas. UNRWA fired nine of the suspected offenders, is investigating two of them and one is dead. Nevertheless, the U.S. and several of its allies (which provide 60 percent of UNRWA’s funding) immediately suspended funds to the 13,000-employee agency on which nearly all Palestinians in Gaza depend for survival, including food and shelter.

UN Secretary General Antonio Guterres said in a statement that, “The abhorrent alleged acts of these staff members must have consequences, but the tens of thousands of men and women who work for UNRWA, many in some of the most dangerous situations for humanitarian workers, should not be penalized. The dire needs of the desperate populations they serve must be met.”

By defunding humanitarian aid to the Palestinians under siege in Gaza, the U.S. is accelerating Israel’s genocide.

South Africa made a powerful and compelling case to the ICJ that Israel is committing genocide against the Palestinian people in Gaza. The application South Africa filed with the court places Israel’s genocidal acts and omissions in the broader context of Israel’s 75-year apartheid policy, 56-year occupation and 16-year blockade of Gaza. This siege was described by Juliette Touma, director of communications for UNRWA, as a “silent killer of people.”

South Africa told the ICJ that it “unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October.” But, it added, “no armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can provide any justification for, or defence to” genocide. Israel “has crossed this line,” South Africa said.

Israel responded by placing responsibility on Hamas for the situation in Gaza. Israel argued that international humanitarian law is the relevant framework — that Hamas committed war crimes. In Israel’s view, this is not a genocide case; if anyone was the victim of genocide, Israel claims it was on October 7 when Palestinian resistance forces allegedly killed 1,200 people. However, Hamas is not part of this case, because it is not a state party to the Genocide Convention.

U.S. leaders’ decision to cut humanitarian aid to Gaza and amplify Israel’s charges against the UNRWA on the very day that the ICJ released its ruling implicitly underscores the message that the U.S. backs Israeli narratives that push for a constant and single-minded return to the attack from Hamas on October 7, rather than an ongoing accounting of the genocidal campaign Israel has been waging in response ever since.

The Biden Administration Is Violating Its Arms Transfer Policy and the Genocide Convention

The Biden administration is already under ongoing scrutiny both internationally and domestically. Just hours after the ICJ announced its landmark ruling, a historic federal court hearing in a lawsuit brought by Palestinians against President Joe Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin for failure to prevent genocide and complicity in genocide was publicly broadcast.

But no matter how the U.S. federal court case goes, the U.S. will undoubtedly continue to face international condemnation for its violation of the Genocide Convention, as well as violation of its own arms transfer policy, in the wake of the ICJ’s provisional decision. The ICJ’s ruling also brings into focus how the U.S. government, which provides an annual $3.8 billion to Israel and has requested congressional approval for $14 billion more, is in violation of the Biden administration’s own U.S. Conventional Arms Transfer Policy, which states:

No arms transfer will be authorized where the United States assesses that it is more likely than not that the arms to be transferred will be used by the recipient to commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit: genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law, including serious acts of gender-based violence or serious acts of violence against children.

President Biden’s policy also says that the assessment of whether the recipient (Israel) is committing human rights violations “shall include consideration of the available information and relevant circumstances, including the proposed recipient’s current and past actions.”

The ICJ made extensive factual findings about Israel’s conduct in Gaza and cited dehumanizing language by high Israeli officials and statements of alarm by several UN officials. The court essentially accepted the bulk of South Africa’s detailed accusations against Israel. These findings should serve as a warning to the Biden administration that its continued provision of weapons to Israel would violate both the Genocide Convention and the Arms Transfer Policy.

 

Bending Biden Towards a Cease-Fire in Gaza

James Zogby

Despite the Biden administration’s refusal to back a cease-fire that would help end Israel’s genocidal assault on Gaza, momentum is growing across the US calling on the administration to reverse course. What is significant is that the opposition to the White House’s position is coming from within the president’s own party.

The administration’s stubborn aversion to even the use of the term cease-fire remains inexplicable. It may be recalled that just a few days after the Israeli bombings that followed the October 7th attacks, the State Department issued a statement calling for a cease-fire that was quickly taken down and followed by a guidance memo to diplomats saying the term was not to be used. As the number of civilian casualties continued to grow, administration officials repeatedly fell back on the line that Israel had the right to defend itself, that Hamas had to be eliminated, and that a cease-fire would only allow Hamas to rebuild its capacity. The administration attempted to absolve itself by coupling this rejection of a cease-fire with appeals to Israel to avoid civilian casualties and with support for humanitarian aid.

Those arguments have failed the test of time. The carpet bombing of residential areas of Gaza, the clear intent to demolish housing and infrastructure, the forced evacuation of millions, and more have led to Israel being charged with genocide. And leading analysts in the U.S. and Israel have noted that the “elimination of Hamas” is at best “a fool’s errand.”

As the dimensions of the human tragedy unfolding in Gaza became clearer, the U.S. has found itself virtually isolated in the world community in its rejection of a UAE-sponsored Security Council resolution calling for a ceasefire that would allow unimpeded humanitarian aid. Countering this proposal, the U.S. supported increased aid to Gaza but would not consider the reality that without an end to the bombing aid could not be delivered or reach those most in need.

Slowly but surely U.S. public opinion has changed with substantial majorities now wanting a cease-fire and voters indicating by a two-to-one margin that they are more inclined to support candidates who call for a cease-fire, with the margin of support for a cease-fire greater among Democrats and key Democratic constituencies (young voters and non-white voters). Still the administration resists.

This past week, a leading Democratic Senator, Chris Van Hollen, joined the chorus of legislators calling for a cease-fire, making him the 68th member of the Senate or House of Representatives to do so. This represents more than one-quarter of the Democrats in Congress and can be expected to grow.

More significant, and somewhat unexpected, are the numbers of City Councils who have taken up the call for a cease-fire. Led by grassroots mobilizations of Palestinian Americans, progressive Jewish groups, and Black activists, major cities like Atlanta, San Francisco, Minneapolis, Detroit, Seattle, St Louis, and three dozen other municipalities have passed strong cease-fire resolutions. And while a vote on a similar resolution has been delayed for a few days in Chicago, the nation's third largest city and home of this year’s Democratic National Convention, that city’s Mayor, Brandon Johnson, this week issued a strong call in support of a cease-fire.

Because the language used by Mayor Johnson was so evocative it warrants consideration. Echoing the sentiments of his voters, he not only expressed his horror at the loss of life, but also tied the liberation of Blacks with the justifiable need for Palestinian liberation. He said, “I’m not mayor of the city of Chicago if people weren’t pushing the government to recognize the value of liberation—what it means for people, groups, and nations. And, in this instance, people should be liberated.”

Just two weeks ago, an Emergency Summit on Gaza was convened in Chicago under the auspices of Rev. Jesse Jackson’s Rainbow Push Coalition. During those sessions, prominent Black clergymen similarly connected their struggle for justice with that of the Palestinians living under occupation. They were joined by progressive Jewish rabbis, Protestant church leaders, Arab Americans, and American Muslims—all united in the call for a cease-fire and committed to advancing this effort nationwide. The effort is advancing.

I am reminded of a debate I had two decades ago with a PLO representative. We were addressing the convention of a Palestinian American organization on strategies to advance the Palestinian cause. The representative spoke about their successes in securing overwhelming victories in the UN General Assembly and then lamenting their losses in the Security Council because of the U.S. veto. His solution was that they were going to bring yet another resolution before the Security Council the next fall.

In my response, I said that since that new resolution would also be vetoed by the U.S., the only vote that mattered was the U.S. vote and that could not be changed or swayed in the court of world opinion. It had to be changed in the U.S. and the only way to do it was to advance that change through grassroots political activism from the bottom up. Two decades later, that effort is underway.

Rev. Martin Luther King Jr. often said, “The arc of the moral universe is long, but it bends toward justice.” What King didn’t say, but understood, was that it didn’t bend by itself. It required the hands of many to push the arc in the right direction. That is what’s happening now. And it is to be celebrated.