Sun 14-July-2024

The World Court has put Israel and its allies on trial for genocide

Wednesday 31-January-2024

It was easy to miss the welcome news from the International Court of Justice (ICJ) on Friday amid the huge wave of disappointment that swept Palestinians and much of the watching world when its judges failed to order an immediate halt to Israel’s slaughter in Gaza.

The World Court’s justices decided, by an overwhelming majority, that South Africa had made a plausible case that Israel is committing genocide against the Palestinians of Gaza.

In doing so, many members of the 17-strong panel openly defied, and embarrassed, the governments of their own countries – not least the court’s president, Joan Donoghue of the United States.

US President Joe Biden’s administration had called South Africa’s case “meritless, counterproductive and completely without any basis in fact whatsoever”.

In a sign of how isolated Israel – and the US – is on the legal facts, its arguments found favour only with its own appointee, Aharon Barak, and Uganda’s judge. Even Barak agreed that some of the provisional measures against Israel were needed to protect civilians.

The ICJ ruled that Israel must obey the Genocide Convention, taking urgent steps to avoid the killing and harming of civilians. It should also avoid creating conditions in Gaza that might make life impossible for Palestinians in the territory.

The court cited remarks from Israel’s president, Isaac Herzog, and its defense minister, Yoav Gallant, that Israel had been doing precisely the opposite over the past three and a half months. Their statements suggested the intent was to punish civilians and make Gaza uninhabitable.

The justices strongly implied that Israel had, to date, failed to honor its legal obligations under the convention and would need to prove to the court within a month that it had changed course.

Almost certainly Israel will defy the court and carry on as before. In the wake of the interim ruling, Israeli Prime Minister Benjamin Netanyahu vowed to continue until “absolute victory”.

Moral conundrum
The ICJ has, in effect, put Israel on trial for the most heinous of crimes, and one that Israel has long cited – in the form of the Nazi Holocaust – as the rationale for its own founding as a necessary sanctuary for Jews from European antisemitism.

In predictable fashion, Netanyahu called the genocide charge “outrageous” and “a mark of disgrace” on the court. He tried to weaponize the fact that the following day was Holocaust Remembrance Day, implying that only an antisemitic agenda could lead to the conclusion that it was Israel, not Hamas, carrying out a genocide.

In fact, the World Court has brought into the harsh light of day a moral conundrum western powers have long sought to obscure.

By killing, maiming and ethnically cleansing Palestinians over the seven decades since Israel’s establishment on the ruins of the Palestinian homeland, has a self-declared Jewish state not become the vehicle by which the victims of one genocide perpetrate another?

After all, what is happening to Gaza today did not emerge out of nowhere.

Israel has been actively disappearing Palestine and the Palestinian people for more than three-quarters of a century. There have been episodes of intense war crimes, such as the ethnic cleansing operations of 1948 and 1967, as well as the invasion and occupation of Lebanon in the early 1980s.

Those events have been interspersed with long periods of a protracted, slow-motion crime – that of apartheid – designed to divide, ghettoize and erase the Palestinians as a people.

Back in 2006, in an attempt to bypass the sensitivities of Israelis, as well as overseas Jews and western publics, provoked by a direct accusation of genocide, the renowned Israeli scholar Baruch Kimmerling characterized Israel’s crimes as “politicide”. He did so the year before Israel began its horrifying 17-year siege of Gaza, turning it effectively into a concentration camp.

In Kimmerling’s view, however, Israel’s actions even before the siege and current mass slaughter in Gaza amounted to something close to genocide.

Court on trial
For the next few years of the court’s deliberations, the question of whether Israel is committing the “crime of crimes” will be the front and center of a legal debate.

The Palestinians will have to continue enduring a real-time genocide, while the World Court sifts the evidence on whether Israel is actually carrying out what the judges already implicitly concede looks very much like a genocide

That will be little comfort to the Palestinians, who will have to continue enduring a real-time genocide, while the World Court sifts the evidence on whether Israel is actually carrying out what the judges already implicitly concede looks very much like a genocide.

But the justices will be under intense pressure to move faster than their usual snail’s pace. The court itself, and the system of justice it supposedly upholds, is on trial too. It must do what it is supposed to do: stop a genocide unfolding, not give it label after it has already taken place.

Even more on trial are all the states that have facilitated, sponsored and tried to shield from proper scrutiny Israel’s slaughter in Gaza. They are now on legal notice that they could be investigated for complicity in genocide, conspiracy to genocide and incitement to genocide.

Yes, the trial process will take far too long. But it is now a cloud hanging over every Israeli action. Each attack on a hospital, the continuing denial of food, water and power to Gaza’s population, the bombing of “safe zones” to which Israel has ordered Palestinians to flee will be listed and investigated as evidence of a genocide.

And in parallel, the pressure will rise considerably on the ICJ’s much weaker sister court at the Hague, the International Criminal Court (ICC), to identify the individuals behind those war crimes.

South Africa, the World Court agreed, made a plausible case. If Israel has persuaded 15 of the 17 World Court justices that there is a risk a genocide is taking place, the ICC should be actively seeking out those guilty of the many war crimes on which that assessment rests.

Complicit states
Israel will try to make much of the fact that no order was made for it to halt its military assault.

The court’s reluctance to back this demand from South Africa was doubtless driven by political considerations. Had it done so, it would have risked coming into direct confrontation with the real culprit: Washington.

Israel would have refused to end its attacks, and the matter would then have been referred to the Security Council for enforcement. In turn, the Biden administration would have been forced to wield its veto to protect its client state.

Either way, there would have been no end to the slaughter of the Palestinians. But if the court had ordered a halt, it would have been even more evident than now that it is the US, more so than Israel, that is ensuring the genocide continues uninterrupted. Without US money and weapons, Israel would be in no position to keep bombing Gaza.

Nonetheless, the US and its allies are now in a tricky position. The day before the ICJ ruling, the Haaretz newspaper reported that Israel and the Pentagon were finalizing a major arms agreement.

Israel is to use part of the huge sums of “aid” it receives each year from Washington to buy 50 fighter jets and 12 attack helicopters made by Lockheed Martin and Boeing. It is also buying more “aerial munitions” because its stocks are running low from its relentless bombing of Gaza.

According to Haaretz, the need for more attack helicopters, in particular, “is a direct lesson from the current war in Gaza”, where existing aircraft have been used to “hit enemy targets and to assist IDF ground forces”.

The paper reported senior Israeli officials saying the Biden administration had “expressed a commitment to ensure the rapid provision of weapons and munitions to Israel to assist the IDF in the current war”.

The World Court will now be investigating whether that commitment is, in fact, complicity – or even a conspiracy – to perpetrate genocide.

Legal jeopardy
The ICJ’s ruling does not exist in a legal vacuum. On the same day, a federal district court in California heard a case brought against the Biden administration for complicity and failure to prevent an “unfolding genocide” in Gaza.

Other states are in similar jeopardy. Before the ruling, Israel’s allies could plausibly argue that their transfer of arms to Israel were made in good faith, even if it was later shown that some of those weapons ended up being used, inadvertently or otherwise, in the commission of war crimes.

But a suspicion by the World Court of genocide means that other states must act much more carefully to avoid the risk of being accused of complicity. The justices have raised a red flag over Israel’s behavior. Other states are required to take note.

Most European countries have been supplying Israel with arms for years that have been used against Palestinians. But some, not just the US, are actively assisting Israel as it pounds Gaza, helping to contribute to the death toll of at least 26,000 Palestinians so far, most of them women and children.

The UK has been using an air force base in Cyprus to fly dozens of reconnaissance missions over Gaza whose intelligence findings are being shared with Israel. Germany, meanwhile, is reported to be shipping tank shells to Israel to replenish its depleted stocks.

Western leaders are equally exposed for their role in rhetorically and diplomatically encouraging Israel’s assault on Gaza. Ignoring the massive number of Palestinian casualties, as well as Israel’s legal status as occupier and its belligerent siege of the enclave, many have prioritized instead a presumed Israeli “right to self-defense”.

The degree to which they may be acting in bad faith was underscored last week when it emerged that a group of Dutch officials and diplomats had turned whistleblowers.

They submitted evidence to the Hague arguing that their prime minister, Mark Rutte, sought to conceal from the public an official finding that Israel was committing war crimes.

According to the evidence, Rutte asked his legal affairs ministry: “What can we say to make it look like Israel is not committing war crimes?”

Media shamed
The ruling should put to shame western media organizations as well.

It may be too much to expect that the BBC and others will now, when they refer to Israel, append a description that it is “being investigated for genocide” – just as they currently reflexively describe Hamas as “designated a terrorist organization by the UK and other governments”.

But the ICJ has put a harsh spotlight on news broadcasters like the BBC that have barely been covering what is going on in Gaza over recent weeks.

The World Court fears that a genocide may be taking place, and yet the establishment media has quickly grown tired of covering it – quite unlike its endless revisiting of the events of nearly four months ago, when Hamas fighters attacked Israel, and its reports on the plight of the Israeli captives in Gaza; and, let us also note, quite unlike its year or more of headline news about Russia’s invasion of Ukraine.

It may be too much to expect that the BBC and others will now, when they refer to Israel, append a description that it is being investigated for genocide

Major media corporations have been taking staff off air who are seen as too critical of Israel’s slaughter – insinuating that their scrutiny is driven by prejudice rather than an appreciation of international law.

ABC, the Australian Broadcasting Corporation, sacked an award-winning Australian-Lebanese host, Antionette Lattouf, after high-level Israel lobbyists threatened legal action if she wasn’t removed.

Notably, Mehdi Hasan, who tweeted about Lattouf’s sacking, was one of three Muslim anchors on MSNBC removed from the airwaves in recent weeks. Hasan had made headlines with confrontational interviews with Israeli spokespeople such as Mark Regev.

Social media companies have been no better. A recent Human Rights Watch report found that Meta, which owns Facebook and Instagram, has been systematically suppressing content about Palestinians and Gaza, making it easier for Israel to evade public scrutiny of its crimes.

Incitement battle
Perhaps not surprisingly, after Gallant and Herzog’s genocidal remarks were quoted so prominently by the court, Netanyahu warned his ministers to avoid commenting on the ICJ’s decision.

Whether or not the court eventually finds that the evidence against Israel passes the high bar set for genocide, incitement to genocide should be far easier to prove. South Africa’s petition to the court included page after page of genocidal statements made by senior Israeli officials, including Netanyahu himself.

Israel could lose that particular battle much more quickly.

But, of course, Israeli officials will find it hard to reign back their incitement, including against the court.

Gallant responded both by calling South Africa’s case “antisemitic” and by suggesting that the ICJ were only too keen to indulge that antisemitism.

What the ICJ has assured is that the taint on Israel is not going away. The question now is, how far will the disgrace and dishonor spread?

-Jonathan Cook is the author of three books on the Israeli-Palestinian conflict, and a winner of the Martha Gellhorn Special Prize for Journalism. His article appeared in the Middle East Eye.

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