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
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
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?
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.
Never
miss another story
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
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.
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