July 16, 2024
Millions
worldwide are appalled by what they see as the total failure of the
international legal order to prevent Israel’s genocide in Gaza. Despite major
cases before the International Court of Justice (ICJ) and the International
Criminal Court (ICC), there is a growing sense of frustration that the law has
not done its job. While understandable, this outrage is based on a fundamental
misconception that international law’s objective is to eradicate violence; that
may be what the UN Charter promises, but it is not what international law is
expected to do nor what it actually does.
The shock and
anger at these seemingly futile legal developments, as the philosopher Walter
Benjamin would say about our concept of history, is largely the result of an
untenable view of the international legal order itself. This order is not
failing in Gaza, but is in fact yielding the very fruits it was meant to
produce. The genocide of Palestinians has not stopped because all things are
working exactly as intended.
Far from ending
war, the international legal system has been constructed and functions to
administer it. The system does not simply do this in a deterministic or blind
way; the concept of administration of violence refers to the dynamics by which
imperial and colonial parameters of what is legitimate and illegitimate
violence are introduced into the law: what kind of violence can be supported or
must be rejected or criminalized, and who can or cannot defend themselves. And
at the same time, the law silences the very violence that it inflicts.
The ICJ’s
decisions regarding South Africa’s case of genocide against Israel are a prime
example of this. It was extremely surprising, sometimes even frustrating, to
hear the generally uncritical welcome given to the first ICJ ruling on Jan. 26,
granting provisional measures. Many people argued that, even though the
decision did not order a ceasefire, we needed to use its positive dimensions to
advance advocacy for Palestine — and they are absolutely right in that.
For instance,
the decision triggered third states’ responsibility to prevent genocide, and
any doubts invoked before are no longer reasonable after Jan. 26. It also
allows bringing to justice those countries complicit in genocide, and for a
wide range of other legal actions, in domestic and international jurisdictions,
against public officials and individuals who are complicit or otherwise
participate in war crimes in Gaza; these avenues are currently being explored
and pursued in many countries including the United States, the United Kingdom,
and Canada.
The positive
implications of the ICJ decisions should thus certainly be put at the service
of Palestinian rights advocacy and orient our actions and strategies when
pertinent. But this should be done without fooling ourselves or turning a blind
eye to other extremely deleterious effects of the decisions, including making a
solid critique of what those legal processes do to our political claims.
In fact, the
course of events in Gaza makes this critique urgent: the genocide has continued
unfolding, only now obfuscated and rationalized in legal language and technical
debates about whether Israel is respecting the court’s decisions, whether
Israel has a right to self-defense, and what this all means for third states’
responsibility under international law.
Legally flawed
and politically obscene
We shouldn’t
spare the ICJ from the critiques that its decisions legitimately deserve. After
all, in its first ruling, the court agreed that Israeli actions in Gaza
“plausibly” constitute genocide and that the situation was so horrific that it
justified provisional measures. However, and despite these incontrovertible
facts, the court did not order the one measure that could stop the genocide: an
immediate and permanent ceasefire.
The court only
ordered Israel to “implement all measures in its power to avoid the commission
of acts of genocide, to allow humanitarian aid in, and to report on all
measures taken within 30 days.” That decision left us trapped in the absurd
position of having to sit with the perpetrators of genocide and discuss for
months whether they are doing everything in their power to avoid what they have
publicly declared they intended to do, and are actually doing.
In this respect,
the Jan. 26 decision was legally flawed and politically obscene. The court
could and should have ordered a ceasefire, but it didn’t. The concrete — even
if unwanted — effects of this decision were to facilitate the continuation of
the genocide, now obfuscated by bureaucratic and legalistic debates.
On Feb. 12,
South Africa requested that the ICJ order a halt to Israel’s military operation
in Rafah; the court did not consider it necessary to order new measures. On
Feb. 26, Israel submitted its report on all measures taken to implement the
court’s first order. On March 11, South Africa responded to the Israeli report.
On March 6, South Africa submitted a new request asking the court, for the
third time, for further provisional measures, including the suspension of
military operations. On March 28, the court, recognizing the extreme gravity of
the conditions in Gaza, ordered new provisional measures but not the suspension
of military operations.
In the time
since that first ICJ ruling, more than 12,000 Palestinians have been savagely
murdered and many thousands more injured. We have continued to witness the
systematic destruction of all infrastructure in Gaza required for life:
hospitals have been repeatedly besieged and destroyed, their patients killed
and their medical staff kidnapped; dozens have starved to death as a result of
an intentionally calculated famine; and lifeless children are still being
pulled from the rubble every day as a result of unceasing Israeli attacks on
homes, schools, and refugee camps.
Why, then, did
the court still refuse to order a ceasefire? Among many explanations offered, a
key reason has been overlooked: that the ICJ itself is driven by the same power
dynamics as the rest of the international legal system and that, wittingly or unwittingly, it
participates in the administration and legitimization of imperial and colonial
violence.
Why are we not
making this critique? Because we should act strategically and mobilize the
limited decision in the advancement of Palestinian rights? Fine, agreed. We
should do so, but without fooling ourselves and, while integrating the
critiques into our strategies, making the court accountable for the concrete
effects of its decisions. In this light, it is worth responding to some of the
common reactions to the ICJ’s ruling.
‘A ceasefire
order wasn’t realistic, and Israel would’ve disobeyed it anyway’
Many observers
have said that the court’s refusal to order a ceasefire was expected; I agree,
precisely for the reasons mentioned above. Others argued that even if the court
ordered a ceasefire, Israel, backed by its Western allies, would simply ignore
it. But Israel’s blatant disregard for international law does not make such an
order any less necessary, nor could it possibly free the court from its legal
obligation, as an organ of the UN, to do everything in its power to prevent
genocide irrespective of Israel’s reaction; courts are hardly shy in ordering a
remedy for fear that the culprit will not abide by it.
Others claimed
that a ceasefire was not what the ICJ proceedings were about. But if these
proceedings were not about trying to obtain a cessation of hostilities to
prevent a genocide, then what could they possibly be about? Creating an
interesting example of jurisprudence for scholars and legal practitioners to
debate about? Changing the international community’s opinion?
Palestinians are
beyond those things; they have painfully learned that in their struggle, among
the community of states, they are virtually alone. What Palestinians wanted was
simply not to be victims of an premeditated and televised genocide, and this could
only be averted by a ceasefire.
‘Ceasefires
cannot be unilateral’
Another argument
is that ceasefires ordered by the court need to be reciprocal, bilateral, or
multilateral, but cannot be unilateral. However, there is no legal provision in
international law that supports this thesis. Indeed, Article 41 of the ICJ’s
Statute indicates that “The Court shall have the power to indicate, if it
considers that circumstances so require, any provisional measures which ought
to be taken to preserve the respective rights of either party.”
This plain
wording undoubtedly includes unilateral ceasefire orders: in its decision on
the Russia/Ukraine genocide case on March 16, 2022, the ICJ resorted to Article
41 to order a unilateral Russian ceasefire, with no mention of Ukraine in the
provision. Accordingly, there is no question that the court can do the same
with Israel.
‘The decision
was consistent with the court’s precedents’
Others affirmed
that the court’s ruling was consistent with its previous decisions in cases of
genocide. The truth is actually more complex than that and seems to add insult
to injury: the court did not order a ceasefire in the proceedings for
provisional measures regarding the Bosnia/Serbia, Gambia/Myanmar, and South
Africa/Israel cases of genocide, but it certainly did so in the case of
Russia/Ukraine. What the court’s decision is consistent with, however, is the
treatment given to genocides targeting non-white, non-Christian nations, while
departing from its refrain on an immediate ceasefire when it came to the
targeting of a white, Christian population.
Some would
counter that the circumstances in the Russia/Ukraine case were different
because the conflict began with a Russian act of aggression and, therefore, the
court ordering a Russian ceasefire was reasonable. It might well be the case,
but this is also the case in Gaza.
Notwithstanding
the Hamas-led October 7 attack, according to international law and the ICJ’s
own interpretation of it, Israel’s war on Gaza should be regarded as
constituting an illegal act of aggression. In its 2004 consultative opinion on
the legality of Israel’s separation wall, the ICJ declared that while Israel
can protect its citizens in accordance with international law, it does not have
the right to self-defense invoking Article 51 of the UN Charter from attacks
coming from a territory that Israel occupies.
Why did the ICJ
decide this in 2004? Because the court understands that, under international
law, occupation itself constitutes an act of aggression, and that what it
really triggers is the right of the occupied people to resist the occupying
power. Only military actions in self-defense are legal under international law
and, therefore, if the months-long Israeli attack on Gaza can’t be justified as
such, then it is an illegal use of force. The court did not have a legal
reason, on these bases, to decide differently than in the Russia/Ukraine case.
‘The measures
indicated by the court amount to a ceasefire’
Finally, some
people also argued that the Jan. 26 provisional measures in the Gaza case
effectively amounted to a ceasefire, because the only way in which Israel could
properly respect the order (not killing or injuring Palestinians) was by a
total cessation of military operations. At first glance, it is a smart point to
make. However, as well intentioned it might be, it does not hold either.
Courts do not
leave their remedies open to the interpretation of the parties: if the court
intended its decision to be interpreted as ordering a ceasefire, it would have
explicitly said so, as South Africa demanded, and in the same way that the
court did in the case of Russia/Ukraine.
Sacrificing law
and justice
In light of all
this, the ICJ did not have any legal or factual reason not to order a
ceasefire. It simply chose not to do so because, within the parameters of
administering imperial and colonial violence, the court’s legitimacy and
authority would be seriously threatened among Western powers.
As the ICC
prosecutor Karim Khan recounted to CNN, many Western governments clearly
believe that international courts were created only for “Africans and thugs
like Putin.” In its fear of being delegitimized or even sanctioned — as
happened to the ICC after suggesting it would open investigations into U.S. war
crimes in Afghanistan, and now after Khan announced he was seeking arrest
warrants against Israeli officials — the ICJ simply lived up to the imperial
expectations.
In addition, we
witnessed two extraordinary further examples of, on the one hand, the court’s
fears of delegitimation, sanctions, and threats of other retaliatory measures
by U.S. and Israeli officials, and on the other hand, the continued
participation of the court in the politics of administration of imperial and
colonial violence.
First, the
former president of the ICJ, Joan Donoghue from the United States, made
deceptive declarations in the media in a disgraceful legal pirouette after
completing her tenure in February. In its Jan. 26 decision, Donoghue alleged,
the court had not found that the claim of genocide is plausible but rather that
the Palestinians’ right to be protected from genocide was plausible. The
statement is so fallacious that it suffices to say that if the Palestinians’
right to be protected from acts of genocide is plausible, it can only be so
because the court considers it plausible that Israel is committing acts of
genocide.
Donoghue is a
renowned and experienced jurist, and she perfectly understands that this is the
only sensible way of interpreting the decision. Yet, in what would appear to be
a desperate attempt to preserve her reputation within the circles of power, and
perhaps to protect herself and her family from retaliatory measures, she made
an undignified mockery of her profession.
Second, after
four successive requests by South Africa for a ceasefire order, on May 24 the
ICJ finally ordered Israel to “immediately halt its military offensive, and any
other action in the Rafah Governorate, which may inflict on the Palestinian
group in Gaza conditions of life that could bring about its physical
destruction in whole or in part.”
There is much
that can be said about this ruling. It confirms that the court always had the
power to order a unilateral halt to military operations, but it is also
evidence of how, in these proceedings, the court has sacrificed law and justice
to abide by the imperatives of the administration of violence in contemporary
politics. If the court really wanted to prevent Israel’s infliction of those
harms, it should have ordered a total halt to military operations since this
violence is not only genocidal but also an illegal use of force. In the end,
Israel not only ignored the May 24 order, but the order also gave grounds to
Israel to continue carrying out genocidal acts in the rest of Gaza.
Within these
dominant legal parameters and the general cover-up of the genocide in Gaza by
Western countries, the ICJ has aptly and tragically participated in Israel’s
old game: the constant resort to “strategic interpretations” of legal norms,
principles, and concepts to enforce its biopolitical and territorial ambitions
through a discourse of rationality. More than intending to simply operate
against or outside the law, it is meant to bring imperial and colonial violence
and their legitimizing mechanisms into the law.
The point of
these critiques should not be misunderstood as advocating for an abandonment of
international law and the international legal system. Rather, it is an
invitation to continue a necessary and honest debate on the role of law in
liberation struggles, to identify its paradoxes, ambiguities, and traps, and to
learn how we can counter its pitfalls with a politically sound legal strategy.
Sharon
Zhang
July
15, 2024
After
months of successive attacks on humanitarian aid facilities, Israeli forces
have now “completely destroyed” the headquarters of the primary aid group for
Palestinian refugees in Gaza, the agency reports.
Israeli
forces attacked the facility as they carried out their horrific raid of Gaza
City last week, leaving nothing but rubble in its place. The building was one
of many operated by the UN Relief and Works Agency for Palestine Refugees
(UNRWA), the largest aid group for Palestinians in Gaza and beyond.
UNRWA
Commissioner Philippe Lazzarini said that Israel’s attack on the facility
represents a “blatant” war crime.
“Shocking.
UNRWA headquarters in Gaza, turned into a battlefield and now flattened,” he
said. “Another episode in the blatant disregard of international humanitarian
law. United Nations facilities must be protected at all times. They must never
be used for military or fighting purposes.”
UNRWA’s
director of external relations, Tamara Alrifai, told Al Jazeera English in an
interview that the headquarters are now “unrecognizable” compared to what
Alrifai has seen in previous visits — a contrast that speaks “volumes”
regarding Israel’s violations of international law.
Just
since October, Israeli forces have attacked 190 UNRWA facilities in Gaza — over
half of the group’s buildings in the region — and killed 197 UNRWA workers.
Israel’s genocide in Gaza has killed the most humanitarian aid workers of any
military conflict in recent history.
The
sheer destruction caused by Israel’s relentless bombing campaign has made Gaza
uninhabitable for myriad reasons. The amount of rubble alone would take workers
15 years to clear, the UN Environment Programme estimates, and will cost at
least $500 million.
The
rubble, which hundreds of thousands of Palestinians have had to navigate in the
past week due to yet another set of Israeli attacks and forced evacuation
orders, also contains unexploded ordnances that create deadly hazards for those
passing through.
Last
week, UNRWA reported that, as Palestinians run out of places to flee to — and
as Israel bombs areas it has supposedly designated as “safe zones” — they face
the risk of running into such unexploded ordnances; experts estimate that
roughly 10 percent of bombs dropped don’t explode on impact and instead become
death traps laying in wait. Unexploded ordnances have already been reported to
have killed and injured several people in Gaza.The leveling of the UN agency’s
headquarters comes as Israel has been escalating its attacks in Gaza.
Palestinian officials have reported that Israeli attacks have killed 320
Palestinians in the last 48 hours, including 17 Palestinians killed by an
Israeli airstrike on a UNRWA school on Sunday.
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