by Vijay Prasad 31 January 2024
On January 26, 2024, the judges at the International Court of Justice (ICJ) released their 29-page order that found “plausible” (paragraph 54) evidence that Israel was conducting a genocide against the Palestinians of Gaza. The court intervened in that war due to South Africa’s application that Israel had violated its obligations to the Convention on the Prevention and Punishment of the Crime of Genocide (1948). South Africa came to the ICJ two months and three weeks into Israel’s brutal military bombardment against the Palestinians. The 84-page indictment from South Africa, presented to the ICJ on December 29, 2023, included statements made by Israel’s high officials calling for the total annihilation of the “human savages” in Gaza and included details of how Israel was acting on such statements.
The ICJ agreed with South Africa’s claims and called upon Israel to “take all measures within its power to prevent the commission of all acts” that are genocidal (paragraph 78). The order is not a final verdict since there was no trial. These are “provisional measures.” It would take the ICJ several years to adjudicate whether Israel is actually committing genocide against the Palestinians. The ICJ did not directly call for a ceasefire or a “cessation of hostilities” (as it had done in March 2022, when it ordered Russia to “suspend the military operations”). However, it is hard to read paragraph 78 in any other way than that it calls on Israel to silence its guns.
Twenty years ago, the ICJ studied the building of a wall around the West Bank in the Occupied Palestinian Territory (OPT). In July 2004, the ICJ found that “the construction of the wall by Israel… is contrary to international law.” There has been a relentless battle over the jurisdiction of the ICJ to rule over Israel’s behavior in the OPT, including in 2022 when a legal opinion was sought by several states over the finding of a UN Human Rights Council commission of inquiry chaired by the South African judge Navi Pillay. Pillay’s report found “reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law due to its permanence and the Israeli government’s de-facto annexation policies.” Israel contested the ICJ’s jurisdiction in the case. Now, with this charge of genocide, the court established its jurisdiction and Israel accepted it by participating in the proceedings.
Provisional Measures
The ICJ was set up by the United Nations as a dispute settlement mechanism between states. South Africa took its dispute with Israel to the ICJ, accusing Israel of violating an international treaty. Having looked at the dispute, the ICJ found for South Africa and offered “provisional measures” to defend the rights of the Palestinian people. The order by the ICJ has no appeal. It is final. The ICJ gave Israel one month to show that it has taken measures to protect the Palestinians. If Israel either fails to respond or does not respond satisfactorily, then the ICJ will send its order to the UN Security Council (UNSC) for enforcement. The UNSC will be bound by the UN Charter to enforce the order.
Israel has already rejected the order. That means that the order will be sent, a month from now, to the UNSC. At that point, it will be interesting to see how the three veto-power Global North countries (France, the United Kingdom, and the United States) will react to the order. On January 25, the U.S. State Department’s spokesperson Vedant Patel said that the U.S. government believes that “the allegations that Israel is committing genocide [are] unfounded.” Patel said that Israel should “take feasible steps, additional steps to prevent civilian harm,” but that there is no genocide being conducted by Israel. This will set up a showdown at the UNSC. Algeria, a member of the UNSC at this time, has asked for a meeting to be held to discuss the verdict and to have the UNSC call for an immediate ceasefire.
The Reputation of the Court
Alongside the ICJ order, Judge Xue Hanqin wrote a separate opinion, in which she noted that 60 years ago, the governments of Ethiopia and Liberia had brought South Africa to the ICJ for its role in South-West Africa (now Namibia). The ICJ, she wrote, rejected the case, and this “denial of justice gave rise to strong indignation” against the ICJ “severely tarnishing its reputation.” Judge Xue came to the ICJ in 2010, and—due to her seriousness of purpose—was elected to be the court’s vice president in 2018. In March 2022, Judge Xue voted against the provisional order that called upon Russia to suspend its military operation in Ukraine (by the time of that order, just over a thousand civilians had been killed in the war, whereas by the time the ICJ took up the Israeli bombing, more than 25,000 civilians had been killed). In the case of Israel’s brutal war against the Palestinians, Judge Xue raised the issue of erga omnes (“towards all”), which implies that this is a case where Israel’s actions harm the world community and Israel must be impelled to stop its war on behalf of all of humanity. “For a protected group such as the Palestinian people,” Judge Xue wrote, “it is least controversial that the international community has a common interest in its protection.”
There are three Asian judges on the court, with Judge Xue joined by Judge Iwasawa Yuji of Japan and Judge Dalveer Bhandari of India. Judge Bhandari has had a distinguished career in India on the Delhi High Court (1991-2004), on the Bombay High Court (2004-2005), and on the Supreme Court (2005-2012) before he was elevated to the ICJ. Only five judges appended their opinion to the order, one of whom was Judge Bhandari. In his opinion, Judge Bhandari went over the legal merits of South Africa’s case, but made sure to put on the record his view that other international laws than the Convention on Genocide apply to this war and that all parties must adhere to these laws. While the order itself did not directly call for a cessation of hostilities, Judge Bhandari did so. “All participants in the conflict,” he wrote, “must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are unconditionally released forthwith.” It is likely that Judge Bhandari affixed his own opinion to the court in order to register the necessity of asking directly for such a direct ceasefire.
The Reaction of Israel and Its Allies
Israel’s reaction to the order by the ICJ was characteristic. Israel’s National Security Minister Itamar Ben-Gvir said that the ICJ was an “antisemitic court” and that it “does not seek justice, but rather the persecution of Jewish people.” Strangely, Ben Gvir said that the ICJ was “silent during the Holocaust.” The Holocaust conducted by the Nazi German regime and its allies against European Jews, the Romani, homosexuals, and Communists took place between late 1941 and May 1945 (when the Soviet Red Army liberated the prisoners from Ravensbrück, Sachsenhausen, and Stutthof). The ICJ was established in June 1945, a month after the Holocaust ended, and it began work in April 1946. To try and delegitimize the Court by saying that it remained “silent” when it was not in existence, and then to use that false statement to call the ICJ an “antisemitic court” shows that Israel has no answer to the merits of the ICJ order.
What is interesting is that the Israeli judge at the ICJ, Aharon Barak, joined the majority of the judges in a vote of 16-1 to say that Israel is not allowing in humanitarian aid to the Palestinians in Gaza, and that Israel must “prevent and punish the incitement of genocide.” It is hard for Israeli high officials to consider Barak “antisemitic” or to disparage his credentials. Barak has held high positions in Israel, such as Attorney General (1975-1978), Justice on the Supreme Court of Israel (1978-1995), and President of the Supreme Court (1995-2006). Barak did vote against the claim that there was “plausible” evidence of genocide by the Israeli government. “Genocide,” he wrote in his own opinion, “is more than just a word for me; it represents calculated destruction and human behavior at its very worst. It is the gravest possible accusation and is deeply intertwined with my personal life experience.” While Barak, the Israeli nominee on the ICJ for this case, did not vote on the accusation that genocide is being conducted in Gaza, Judge Barak nonetheless agreed that there was “incitement of genocide.” The difference between the two hangs on a thread, haunted by the ghost of the dead 30,000 Palestinians (nearly half of them children).
Israel’s prime minister, Benjamin Netanyahu, in trouble politically within Israel, welcomed the fact that the ICJ did not order a ceasefire and then said that his War Cabinet will continue to prosecute its war. This spin on the verdict is implausible. It will not convince anyone, least of all the judges of the ICJ who have found the accusation of genocide “plausible” and have called upon Israel to stop its genocidal war.
Source: Globetrotter