As if Israel’s legal and diplomatic woes weren’t dire enough, this afternoon in The Hague, the International Court of Justice ordered it to suspend its military operations in Rafah, to open the Rafah crossing to humanitarian aid, and to allow international observers into Gaza to ensure that evidence of Israeli genocide is not destroyed.
Today’s landmark ICJ “provisional measures” order is the Court’s response to South Africa’s May 10 application.
The situation in Gaza — and in Rafah particularly — couldn’t be more urgent, South Africa told the top UN court in its application, triggering two days of hearings. South Africa presented on Thursday, May 16.
“The onslaught on the Palestinians in Gaza is of a nature that can only be intended to result in the genocidal destruction of that group,” South Africa’s application stated. “In attacking Rafah, Israel is attacking the ‘last refuge’ in Gaza, and the only remaining area of the Strip which has not yet been substantially destroyed by Israel. With Rafah’s destruction, the destruction of Gaza itself will be complete.”
Israeli attorneys responded the following day, refuting all of South Africa’s charges — “obscene,” “blood libels,” all of them.
Having heard South Africa’s alarming appeal and Israel’s infuriated rebuttal, the Court’s German judge, Georg Nolte, instructed Israel to draft a report on the humanitarian situation in Rafah, along Israeli-mandated evacuation corridors, and in Israel’s “safe” evacuation zone, Al-Mawasi, on the southern Gaza coast. Israel had 24 hours to do so, and South Africa could then respond.
All but two of the Court’s fifteen judges were swayed by South Africa’s alarming appeal.
Today’s Court’s ruling states:
“The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in Rafah Governorate … 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 would bring about its physical destruction in whole or in part … maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance, [and] take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.”
ICJ President Nawaf Salam also ordered Israel to submit a compliance report within one month from today, and confirmed that today’s orders have “binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed.”
Each of the four provisional orders issued today was passed by a vote of 13 to 2, with Ugandan judge Julia Sebutinde and Israeli judge ad hoc Aharon Barak being the dissenting voices.
Israeli attorneys did not attend today’s hearing.
South Africa’s “urgent” May 10 request for today’s additional provisional measures was the fourth time it had asked for a court-ordered halt to Israel’s assault on Gaza.
In response to its original application, on January 26, the ICJ ordered Israel to refrain from committing acts defined as genocidal under the 1949 Genocide Convention, to allow humanitarian aid into Gaza, and to put an end to genocidal rhetoric among Israeli military and political chiefs, but not to halt its military assault on the brutally besieged enclave.
In applications submitted to the Court on February 12 and March 6, South Africa asked again. The Court declined to do so.
Unfolding train wreck
For Israel and its chief arms supplier, the U.S., today’s ruling is the latest twist in a slow-motion train wreck.
Across town from the ICJ, at the world’s preeminent venue for international criminal prosecutions, Chief Prosecutor Karim Khan announced on May 20 that he’ll be seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister, Yoav Gallant, for a host of war crimes and crimes against humanity in Gaza — among these are starvation as a weapon of war, willful killing and murder, extermination, persecution and “other inhumane acts.”
“Reasonable grounds” also exist for charging Yahya Sinwar, Hamas’s leader inside Gaza, Muhammad Diab Ibrahim Al-Masri (aka Muhammad al-Deif), the Commander-in-Chief of its military wing, the Qassam Brigades, and Ismail Haniyeh, the head of Hamas’s political bureau, with a host of war crimes and crimes against humanity committed since “at least” October 7, Khan also announced.
Two days later, German spokesman Steffen Hebestreit confirmed that should arrest warrants be issued against Netanyahu, Gallant, and other Israelis, Israel’s best European friend would execute arrest warrants.
“Of course,” Hebestreit said. “Yes, we abide by the law.”
Hebestreit’s statement came hot on the heels of an announcement by Norwegian, Spanish, and Irish leaders that their countries will formally recognize Palestinian statehood next week.
Then, on May 23, in a letter to top EU officials expressing “growing concern” over mounting human rights crimes in Gaza, 200 anonymous EU staff members called on the EU to halt arms exports to Israel and to condition future political, economic, scientific, and technological cooperation with the “Jewish State” on its respect for “human rights” and “democratic principles,” in accordance with Article 2 of the Euro-Mediterranean Agreement between Israel and the EU.
“[The] fact that…more than one in every one-hundred people in Gaza has perished, and that an estimated 70% of these were women and children, suggests that the Israeli forces’ response to the 7 October attack represents a collective retaliatory measure, rather than the exercise of any right envisaged in international law,” the anonymous EU staffers wrote.
“[Beyond] the horrific local consequences in Gaza,” the EU staffers added, “the EU’s continued apathy to the plight of the Palestinians runs the risk of indirectly contributing — through inaction — not only to the spread of polarising narratives, but also to normalising the rise of a world order where it is the sheer use of force, as opposed to a rule-based system, that determines state security, territorial integrity, and political independence — or the lack thereof.”
Israeli leaders off the rails
Israeli leaders are not used to being subjected to international law — much less hauled before judges or slapped with arrest warrants — and they are responding to their ballooning train wreck by leaping off the rails: recalling their ambassadors from Ireland, Spain, and Norway; banning Spain’s Jerusalem consulate from providing assistance to West Bank Palestinians; approving the return of colonists to formerly evacuated West Bank colonies; threatening to cut off Palestinian banks from their correspondent Israeli banks; aiding and abetting settlers in their assaults on aid trucks headed to Gaza.
So, as far as Prime Minister Netanyahu and his war cabinet are concerned, shrugging off another court order from the international community’s supreme judicial body couldn’t be easier, informed observers told Mondoweiss.
“I wouldn’t expect Israel would honor such an order if it were issued,” Canadian legal scholar William Schabas told Mondoweiss, prior to this afternoon’s ruling in The Hague.
“But this will further isolate Israel politically,” Schabas says. “It may not influence the United States, which has, in its own way, shown great disdain for the International Court of Justice…But there are many states — European states, Canada, and many states of the Global South — who are respectful of the International Court of Justice, and would not take well to the idea of defying an order of the Court.”
Today’s ICJ order that Israel halt its assault on Rafah — days after ICC Chief Prosecutor Karim Khan announced arrest warrant applications against Benjamin Netanyahu and Yoav Gallant, with more warrants possibly under seal — will do more than just isolate Israel politically.
“Netanyahu doesn’t buy a ticket on Ryanair and just show up at the airport one day in a country,” Schabas told Mondoweiss. “He’s the head of government, and so his visits are choreographed at the diplomatic level.”
“I think what in practice will happen,” Schabas says, “is that governments like those of Canada and Germany and France and so on — the United Kingdom — will say, ‘Don’t come here! You can’t come here because we have to arrest you.’”
Beyond the personal comfort and safety of Israeli leaders, today’s ICJ order augurs deeper shifts in how the world addresses Israeli violations of international law, shifts of an “extraordinary” nature, says Michael Lynk, former UN Special Rapporteur on the human rights situation in occupied Palestine.
“There’s very little hope, probably less than zero, that Israel would obey what the Court has ordered,” Lynk told Mondoweiss, following today’s ICJ ruling.
And, Lynk adds, regardless of what the UN’s top judicial body says, the Biden administration will likely support Israel to the last, vetoing resolution after resolution at the UN Security Council.
“International law, by itself, will never liberate Palestine or deliver a two-state solution. But it will give strength to attempts by those who say either a two-state solution is what has to happen, or it’s going to have to be a one-state democratic solution that relies upon the rule of law for all that live between the river and the sea.”
Michael Lynk, former UN Special Rapporteur on the human rights situation in occupied Palestine
Still, as Lynk is known to say, and as he told Mondoweiss today, “international law is closer to power than to justice.”
“International law, by itself, will never liberate Palestine or deliver a two-state solution,” says Lynk. “But it will, I think, give strength to attempts by those who say either a two-state solution is what has to happen, or it’s going to have to be a one-state democratic solution that relies upon the rule of law for all that live between the river and the sea.”
More than anything else, it’s the speed of recent, seemingly unlikely events that inspire Lynk the most.
“Lenin once said something like, you know, there are decades where very little happens and then there are weeks when decades happen,” Lynk told Mondoweiss. “And I think that the possibility of rapid change occurring suddenly, out of the blue, because of escalating events, may well be what we see around the corner.”
Here’s a good litmus test for who the good and bad guys are in the world, historically and present day. What countries were the strongest supporters of Apartheid South Africa?
Israel, US and Britain
All three share common characteristics. Violent and not averse to Apartheid systems or genocide.
This immorality was perhaps captured best by the lionized former US Sec of State Madeleine Albright. When asked on 60 Minutes whether 500,000 dead Iraqi children from US sanctions was a worthwhile price to pay, responded that it was “worth it”.
It seems like the days of impunity for Israel are finally coming to an end.
And not surprisingly, israel will continue ‘flipping the bird’ to the world. But the day will come when this ‘flipping’ is reversed.
Evidently there is also “very little hope” that the United States and UK will abide by the order. Per The Guardian, it appears that:
https://www.theguardian.com/world/article/2024/may/24/us-and-uk-to-back-israel-against-icj-while-blurring-their-rafah-red-lines
I think of a recent opinion piece by Amit Varshizky in Haaretz, titled “A society so indifferent to death and destruction has already lost the war.” That op-ed is about Israel, but given America’s complicity, it seems relevant here as well.
I think as well about the depression and dismay I felt when George Bush Jr. and the neocons launched ‘shock and awe’ to–in the words of Tom Friedman–“tell the Arab world to suck on this.”
And I think about my sadness recently when I tried several times–and failed each time–to subscribe to a journal called This Week in Palestine. I had seen a link to it at juancole.com, and had read a story there with beautiful images of the Palestine sunbird. https://thisweekinpalestine.com/
(see also: https://www.aljazeera.com/program/al-jazeera-world/2020/5/20/palestine-sunbird-a-stamp-of-defiance/
Evidently, Israel objects to the name of the bird, and (I infer) to the name of the journal. My bank blocked repeated attempts to subscribe online; I don’t know whether due to restrictions imposed by the U.S. Treasury Department, or by Israel, or by my bank. Evidently, while bombs destroy homes and schools, hospitals and places of worship, while people are killed by disease and starvation, even such a trivial reminder of the previous existence of Palestine and Palestinians must be expunged.
There can never be effective “international law” because, as Alexis deTocqueville observed, no law which cannot be enforced is real, and the power to enforce such law will never be surrendered by the most powerful states. In the aftermath of WWII, so called international law was established because the extreme demonstrations of tribal animosity in the hands of a powerful state, i.e., Germany, shocked people of common sense around the world, and there was a desire to affirm that such behavior would be forever repugnant to civilized people. However, the polarization of the Cold War quickly reduced it to a propaganda game between the two sides.
Now that some survivors of the victims of that atrocity are engaged in an equally vicious demonstration of the same tribal animosity and dehumanization, the emptiness of the pomp and circumstance of the ICJ & related institutions is manifest.
The real answer is for individuals and nations who truly believe this behavior is unacceptable, rather than appealing to validation to a an ineffective showcase, is to double down on 1) boycott, divest, and sanction of Israel and 2) provide material aid and welcome to Palestinian exiles. For example, seal all borders to Israeli citizens who support their government actions. Criminalize commercial relations of domestic companies. Ban aircraft which land in Israel from landing in your country. Don’t attempt to ban speech on behalf of Israel, but cut off the flow of wealth into that country. Such actions will cause discomfort, perhaps economic distress in the short term for countries courageous enough to take them, and are already having negative consequences for individuals who speak out, as we see in the repression of the solidarity movement in the US. But that’s putting our money where our mouth is.