Why International Law Matters even if Israel Refuses to Comply with ICJ Priovisional Measures Ruling

[Prefatory Note: The post below is a much modified set of responses to questions posed by Mohamed Elmenshawy a journalist working at Al Jazeera Arabic from Washington  1/10/2024). Question 9 below has been added to deal with Western media bias as illustrated by three opinion pieces published on 1/17/2024.]

1. How should we interpret the South Africa allegation that Israel’s military operations in Gaza violate the country’s obligations under the United Nations Genocide Convention and that its actions constitute genocide?

Israel’s military operations have lasted more than three months, but from almost their very outset objective observers felt confronted by ‘a text book case’ of genocide as the military onslaught was systematically and openly aimed at making Gaza uninhabitable and inflicting severe suffering on innocent civilians in flagrant violation of basic rules of international law. Such a military campaign was proclaimed in these extremist terms by Israel’s top political and military leaders and consistently exhibited in practice by the sadistic tactics relied upon by Israel’s armed forces. Disregarding official language that called for turning Gaza into ‘a parking lot’ or ‘emptying Gaza of all Palestinians’ or posing a choice of ‘leave or die’ disclose a stunning defiance of the criminal prohibition against the crime of genocide. Israel overlooks the fact that it was a party to the Genocide Convention, which pledged respect for this unconditional limitation on state behavior, meaning that neither self-defense nor anti-terrorism could provide a legally credible basis for Israel’s behavior toward Gaza since October 7. In addition, Israel twists the facts and evidence as in its presentation to ICJ, by contending that the Hamas attack was the real occasion of genocide and that it is Israel that is defending itself against a genocidal adversary.

2.      What happens if South Africa wins at the ICJ?

We cannot know how Israel and the United States, and other countries would respond, but we can offer an informed opinion that draws on Israeli allegations against South Africa, insisting that the mere bringing of a legal dispute alleging the reality of genocide in Gaza amounts to a blood libel against the Jewish people, and in the more guarded secular language of the US State Department that the South African initiative is ‘meritless’ as it lacks an acceptable legal basis in fact. The US is likely if necessary to use its veto power in the Security Council and disregard any General Assembly resolution that called for compliance with whatever Provisional Measures the ICJ decrees, as it is authorized to do under Article 41(1) of the Statute governing its operations.

If this anticipated sequence of evasive or defiant non-compliance occurs, it will likely lead to large and sustained protests throughout the world, including in the North American and former European countries that have lent Israel varying degrees of support and initially gave their full-throated  approval to Israel’s response to the October 7^th Hamas attack. The rising opposition to Israeli behavior in Gaza is posing serious destabilization threats of adverse political consequences in some countries, typified by the widespread labeling of Israel as ‘a pariah state’ in some settings, and to a dramatic escalation in the nature and militancy of global solidarity initiatives throughout the world including recourse to sports and cultural boycotts, and calls for an arms embargo and international sanctions. This civil society activism has the potential leverage to transform the discursive approach to the underlying conflict of many governments in the Global South and possibly in Israel and its governmental supporters. This happened to the surprise of many in South Africa, although under very different circumstances.

3.      What happens if South Africa loses at the ICJ?

Israel would undoubtedly gloat, celebrating a lawfare victory, and demeaning critics of Israel’s tactics in its Operation Swords of Iron as hysterical antisemites. It would also lead Israel and the US to feel vindicated by the refusal to follow the global majority favoring an early ceasefire.

Those supporting the South African initiative would likely react with a mixture of perplexing confusion and outright anger at this disappointing outcome at the ICJ. How could the highest court in the world look at such overwhelming evidence so well presented to the Court by the South African legal team, and decide perversely and unprofessionally. Assuming even a split reaction to a majority decision in which the Global West stood behind Israel and rejecting the views of those adopting the perspectives of the Global South, the Court’s stature as a legal tribunal deserving the utmost respect of UN member states would be drastically reduced, temporarily at least.

There is a middle ground based on a highly technical and legalistic jurisdictional argument put forward by Israel at the ICJ hearings to the effect that any action by the Court would be ‘premature’ as there was a failure to establish that a ‘legal dispute’ between the parties existed prior to when the application to the Court was submitted. This argument was refuted by the South African team at the ICJ January hearings, but it could relieve the Court, or some of its judges, of the duty to resolve the awkward dilemma at the core of South Africa’s request for Provisional Measures, which pits legal propriety against political expediency.

In some respects, the most significant result of a negative decision or even a technical evasion would be widespread disappointment producing a probable reaction in world public opinion to the effect that the World Court is out of touch with the flow of history, and in light of this, a dramatic increase in global solidarity initiatives along BDS lines will occur exhibiting surging transnational activism. The growing belief that only civil society activism has any prospect of terminating this terrible humanitarian ca such as has been unfolding in Gaza this in which the primacy of geopolitics disregards law and morality when strategic interests are at stake.

In a sense, whether South Africa’s request that the Court issue Provisional Measures to stop the genocide succeeds or fails might not make a big immediate difference as to the substantive impact of its decision. If the Court grants the South African request Israel will almost certainly refuse to comply which will produce civil society anger and coercive actions in response to Israel’s non-compliance. Whereas if the request is rejected, an angry populist response would also escalate civil society engagement and add to present hostility toward Israel in many parts of the world. In the latter case some of the frustration would be directed at ICJ as a flawed or politicized institution, whereas if its positive decision is ignored, most of the frustration would be expressed as anger toward Israel and the US. In other words, win or lose, the implementation of the norms of the Genocide Convention are subject to formal nullification by what has afflicted the whole UN system when it comes to enforcement—the primacy of geopolitics in determining the presence or absence of a sufficient political will on the part of actors with requisite capabilities to achieve enforcement of authoritative judicial decisions. The prospect of geopolitical obstruction in response to the South African initiative dooms orderly compliance in the event that the ICJ grants the request for Provisional Measures to stop Israeli violence until a decision of the merits is forthcoming on the allegation of the crime of genocide.

4.      Benjamin Netanyahu claimed that the Israeli military is the “most moral army in the world”, Do you agree with him? why?

This was never more than a highly inflated claim made by Israel’s formidable hasbara, or simply. the message transmitted by its state propaganda machine and repeated throughout the Global West by Israel support groups. The Goldstone Report of a UN Human Rights Council fact-finding mission undertaken after the 2008-09 massive land/sea/air attack on the essentially helpless people of Gaza contains hard evidence of a series of war crimes relating to Israel’s tactics and weapons. It should be appreciated that Israel has a special obligation in Gaza to protect the civilian population, accentuated by its status as the Occupying Power, and hence subject to the legal constraints contained in the 4^th Geneva Convention governing Belligerent Occupation. It should be remembered that years before the current encounter, even conservative international visitors, for example, David Cameron, referred to Gaza as ‘the largest open air prison in the world.” It is hardly surprising that individuals driven from their homes and homeland decades ago, then denied a right of return, and finally permanently  ‘imprisoned’ for no crime where they kept on what a prominent government advisor called ‘a subsistence diet,’ would at some point risk everything to achieve a jail break, what Norman Finkelstein termed ‘a slave revolt.’ From a legal and moral point of view, to the extent validated by independent sources, the Hamas attack on October 7 included war crimes, and unlawful hostage-taking, and should be repudiated, although part of a legitimate act of resistance against prolonged oppressive occupation.

Looked at less legalistically and more strategically, Israel has since 1967 used Gaza as a valuable experimental combat area where it could demonstrate the efficiency of its counter-terrorism capabilities a warning to its enemies and as a sales pitch to other governments helpful in winning customers for its robust arms industry, including in relation to innovations in tactics, weaponry, and training. It also wanted to show hostile countries in its neighborhood that it would retaliate against provocations with disproportionate force. It formulated such an approach in the Dahiya Doctrine back in the early 1980s, a mode of thinking that justified the destruction of a poor neighborhood in south Beirut that was known to be a Hezbollah stronghold enjoyed populist support. It is this Dahiya Doctrine, in a geometrically magnified form, that underlies the security justification for Israel’s horrifying response to the attack of October 7^th, and to the extent that Israel response is deemed by a growing number of observers as an instance of genocide making a mockery of attempts to continuing to portray Israeli armed forces as ‘the most moral in the world.’ Morality does not mix well with official assertions from political leaders and military commanders that the Palestinians as a people are sub-human and deserve to be treated as such. The whole international movement to protect human rights rests on the foundation of human equality, and the universality of the legal entitlement to human dignity.  

5.    How does the war on Gaze affect the respect and prestige of International Law?

The short-term, yet insufficient, answer will be greatly influenced by how the ICJ handles the South African request for Provisional Measures, and whether the states of the world, particularly Israel and the UN, exhibit defiance or respect for the outcome. Also relevant is the degree to which civil society is favorably impressed by the ICJ response to the South African request, including its prompt delivery. A positive result will have some redeeming effects on street-level perceptions of international law around the world, and act persuasively to support the view that even when states refuse compliance and the UN is helpless to act, international law can be useful for advocates of justice through legality.

If we broaden the optic beyond the legal assessment of the violence of Israel’s campaign in Gaza, it becomes obvious that Israel has long openly violated international humanitarian law during its period of Gaza occupation that started with its victory in the 1967 War. Among many unlawful policies, Israel can be charged with during this period when it had the added obligations associated with being the Occupying Power in relation to Occupied Palestine, the most blatant are collective punishment, establishment of Jewish settlements in occupied territory, claims of sovereignty over the entire city of Jerusalem, appropriation of water and other resources in the West Bank, failure to withdraw from territories occupied during the 1967 War or to fulfill in good faith the primary duties as specified in the 4^th Geneva Convention to protect the Palestinian people subject to its administrative authority as the Occupying Power. Israel also refused to heed the near unanimous ICJ Advisory Opinion of 2004 challenging the construction of a separation wall on occupied Palestinian territory. In general, Israel has defied international law whenever compliance would seriously interfere with its national policies and strategic priorities as pertaining to the Palestinian people. At the same time Israel invokes international law whenever it could be used to justify its actions or complain about Palestinian resistance. Its pathetic lines of argument January 11^th ICJ Hearings on the South Africa initiative sought to invert the facts and evidence by casting itself in the role of the victim of Hamas genocide rather than its perpetrator.

By such manipulations, International Law is reduced to brazen lawfare, that is, International Law becomes a policy instrument in the toolkit tool of partisan national behavior, essentially a mode of propaganda to bolster self-serving legal arguments upholding national claims and denunciation of behavior by adversaries. This kind of manipulation undermines the ideals of law as constituting a set of constraints that rest on the formal authority to regulate the behavior of all sovereign states in ways that achieve mutual benefits by way of peace and justice. This kind of legal framework for action is what the UN Charter ambiguously offered the world in 1945. The geopolitical tensions of ensuing years made the UN generally helpless to implement these central war prevention goals, and often marginalized the UN in war/peace contexts.

6.      Israel is not a member state of the International Criminal Court? Could its leader be persecuted under its jurisdiction?

In theory, the ICC has jurisdiction to prosecute a leader of a sovereign state if the alleged international crime was committed within the territory of a party to the Rome Statute governing its operations. In practice, However, such a proceeding would require that the ICC to obtain physical control over the individual and this would normally depend upon the voluntary cooperation of the national state of the accused persons belong to a state that is not a party.  States that are ICC parties governing the operations of the International Criminal Court are under a treaty obligation to cooperate with the ICC, including during the investigative and any resulting arrest phases of a legal process. The accused person or persons must also be present in the courtroom in the unlikely event that there is a prosecution.

Israel does not need to be a party of the Rome Statute governing the authority of the ICC if the tribunal finds that it possesses valid legal authority to proceed with an investigation and possible indictment of Israeli political and military leaders charged with responsibility for crimes in Occupied Palestinian Territory, which would include Gaza. The ICC after a variety of delays did formally decide in 2021 in a Chamber consisting of three judges that it could proceed to consider Palestinian allegations of Israeli crimes committed on the territory of Occupied Palestine subsequent to 2014. Palestine had become a non-voting Member of the UN in 2012, and on the basis of this qualification as ‘a state,’ later a party to the ICC treaty framework as set forth in the Rome Statute. The present prosecutor of the ICC, Karim Khan, has shown little interest in proceeding as permitted. This sloth is in sharp contrast to the haste displayed with respect to allegations against Putin for crimes in Ukraine associated with the 2022 alleged aggression.

7.      What is South Africa is seeking to achieve of such a case?

It is always hard to depict the motives for a controversial legal initiative of this kind, and in this instance the objectives may be less clear than the motivations. Post-apartheid South Africa has associated the Palestinian struggle for basis human rights with its own struggle against an apartheid regime. Nelson Mandela famously said, “our freedom will not be complete until the Palestinians are free.” In a sense, genocide should in some instances be regarded as the consummation of apartheid. It is the almost invariablle characteristic of the final stages of a settler colonial project, which is probably the best way to understand what is happening in Gaza, and to appreciate the bad memories that analogous developments generated in South Africa.

South Africa may also be motivated by recollections of the role played by governments in the Global West in relation to its own earlier struggle that was long insensitive to the oppressive racist rule because it was strategically linked to apartheid South Africa in the Cold War Era. Palestine has been victimized and Israel shielded and enabled by the American-led commitment to its strategic interests in the Middle East as reinforced by pro-Israeli domestic lobbying and donor leverage in relation to government policy and media presentations.

Many of those who work on the South African initiative or were supportive of its effort to appeal to the ICJ to stop the Gaza genocide have been quoted as saying world to the effect, “I have never been so proud to be a South African or of our government.”

8.      U.S. Secretary of State Antony Blinken denounced Israel being referred to the (ICJ) for alleged genocide during its war in Gaza, calling the claim “meritless.”, What do you make of the Biden Administration position?

As suggested in earlier responses, the primacy of geopolitics in US foreign policy leads to the subordination of international law whenever compliance clashes with strategic interests. To call the South African initiative ‘meritless’ in light of the copiously documented genocidal practices, policies, and exterminist language of Israel’s top leaders defies reality as embodied in the provisions of the Genocide Convention, which calls upon parties to prevent and punish the commission of genocide by others as well as to refrain themselves from such behavior. To not exempt ‘genocide’ from geopolitics is in my judgment itself a sign of national decadence at a time when the global public good desperately needs expressions of respect for all peoples inhabiting the planet.

There are two points to observe: (1) the contrast between the US impassioned allegations of violations by its adversaries, China and Russia, and its unconditional support for accused international friends and allies is a stunning display of irresponsible statecraft; (2) the moral hypocrisy associated with such brazen double standards, severely undermines the authority of international law by treating equals unequally, and opportunistically.

The US is paying a high reputational cost at home and internationally by standing with Israel in opposition to the South African effort, which enjoys support all over the world, because it is seeking to bring an ongoing and transparent genocide to an end. This initiative by way of the ICJ was undertaken only after several attempts in the UN Security Council and General Assembly were blocked, diluted, or were unheeded principally due to US leverage exerted on behalf of Israel. It shines a bright light on the significant relevance of complicity crimes to this horrifying ordeal being inflicted on the civilian population of Occupied Palestine.

9. How important is the mainstream media bias in the US? In relation to the perceptions of genocide in Gaza? And to claims of liberal democracy, which include media independence, which has become crucially important to assessing American foreign policy?

I found it shocking that the NY Times published on January 17^th no less than three opinion pieces by Jewish authors, unbalanced by a single Palestinian or principled critical voice. Daniel Levy, a former Israeli former peace negotiator, yet for many years a critic of what I would call the maximalist Zionist approach to ending the Israel/Palestine struggle over territory and statehood. In this latest piece Levy fails to use the word ‘genocide,’ yet helpfully pronounces as dead the two state solution long rejected by Israeli leadership yet to this day embraced as US policy. Levy strongly suggests that the US call it quits with respect to this zombie peace diplomacy and adopt a more realistic approach that limits its goals to the advocacy of the protection of Palestinian human rights for all those living beneath an Israeli one state version of ‘the river to the sea.’ Levy correctly notes the relevance of Israel’s “categorical rejection of Palestinian statehood” by reference to the guidelines of the Netanyahu pre-October 7^th guideline setting forth its view that ‘the Jewish people have an exclusive and inalienable right to all parts of the Land of Israel.’” This is a typical kind of peace perspective that would fall within the comfort zone of many liberal Zionists, but it is hardly an approach to peace and justice based on UN guidelines, the views of even moderate Palestinian advocates of a political compromise, of even an attempt to allocate rights according to international law.

The Levy piece was a reasonable expression of opinion but juxtaposed with adjoining pieces by Bret Stephens and Thomas Friedman it contributed to my impression of extreme bias. The Stephens piece was so extreme, in my view, as to make it unpublishable in a responsible media platform. I suspect it would have been summarily rejected if submitted by someone unconnected with the newspaper rather than by one of its regular opinion writers. Its title accurately foretells its essential message: “The Genocide Charge Against Israel Is a Moral Obscenity.” Stephen’s vitriolic prose is directed at the South African initiative at the International Court of Justice, which was based on a scrupulous legal argument setting forth in a 94 page carefully crafted report supporting its application for Provisional Measures to stop the ongoing ‘genocide’ until the tribunal decides the allegations on their merits. Stephens’ piece had the audacity to normalize the dehumanizing language used by the Israeli leadership in describing the ferocity of their violence in Gaza. Stephens seems willing to endorse the position that the alleged barbarism of the Hamas attack of October 7 allowed Israel to engage in whatever violence would serve their security without engaging legal scrutiny. At this point Israel has killed at least 23,000 Palestinians mostly innocent, long abused civilians, which in Stephens’ view not genocide but a side-effect of war and self-defense.

Indeed, the piece goes on to argue that China’s abuse of the Uyghurs or the ‘killing fields’ of Cambodia or Soviet Gulag conditions were the real stuff of genocide, and went unpunished, while Israel is being maliciously singled out for these delegitimating charges of genocide solely because the perpetrators are Jewish. It is a shameful line of argument put forward in a slick tone of moral superiority and legal indifference. There is much room for debate surrounding these events, but to characterize recourse to the preeminent judicial body with a conservative legal tradition ‘a moral obscenity’ is itself ‘a moral obscenity.’ It goes beyond the pale of responsible editorial filters, sure to be present if a Palestinian author wrote more plausibly that Israel’s defense of its behavior before this very court was ‘a moral obscenity.’

The third opinion piece was written by its chief pontificator, Thomas Friedman. It reported an interview with Antony Blinken a day earlier at the Davos World Economic Forum. It was more civil that Stephens but as provocative, and as always, self-important. Friedman started by contextualizing Israeli behavior sympathetically as partly expressive of a trauma induced by the Hamas attack, without a word of sympathy for a Palestinian outburst of resistance after 50 years of abusive occupation and 15 years of a punitive total blockade. Blinken was portrayed as a tireless representative of the US Government doing his diplomatic best to limit Israeli tactics who declared he was heartbroken by the tragic ordeal being experienced by the Palestinians. No reference was made to Blinken’s earlier offers of direct participation by the US military in the Israeli response and not a word of criticism of Israeli dehumanizing statements, tactics, or evident ethnic cleansing goals. He seemed for most of the 100+ days of Israeli violence as entirely comfortable carrying out his role as enabler-in-chief of the Israeli ongoing genocide. Such a role entails legal accountability for serious, ongoing complicity crimes, and not the celebration of a man doing a professional duty that brought him great grief. It is illuminating to appreciate that to slow the velocity of genocide, even if such an intention is conceded, is still genocide.

What makes this show of media bias particularly disturbing is the refusal to consider that most non-Westerners have little doubt about the nature of Israel’s guilt in relation to the commission of this ‘crime of crimes.’ This perception has nothing to do with the fact that Israel is a Jewish state, and everything to do with the stark clarity of Israel’s formal intentions and the visible nature of its tactics that is entering its fourth month. A further damning fact is that this is the most transparent genocide in all of human history as nightly TV brings its daily occurrence before the eyes of virtually the whole world.  The horror of previous genocides, including the Holocaust, have been largely disclosed after the fact, and even then were largely understood by way of abstraction and statistics, as well as the grim tales told by survivors or research done long after the fact, and later through films and books.

Tags: 'ICJ, Bret Stephens, genocide, Israel, NY Times, South African Initiative