The order of the International Court of Justice on South Africa’s request for provisional measures to prevent genocide in the Gaza Strip is, in the words of The Economist, a “stinging rebuke” to Israel. It’s more than that; it is a root-and-branch rejection of the Western consensus that Israel has no case to answer for the devastation it has caused in Gaza.
In response to South Africa’s case, Israel had argued that the war in Gaza did not fall within the jurisdiction of the ICJ, that the ICJ should “remove the case from the General List” and also reject South Africa’s request for provisional measures. Israel’s friends in the West agreed. The favoured description of the South African case by government spokespersons of Western nations was “meritless” or “unhelpful”. The most enthusiastic media advocate of Israel’s continuing war in Gaza, The Economist, led with a headline that read “Charging Israel with genocide makes a mockery of the ICJ”.
The ICJ didn’t agree. It rejected every one of Israel’s contentions. It ruled that the ICJ had jurisdiction over the case under the Genocide Convention. It further ruled that South Africa had the standing to bring the case. These two rulings prepared the ground for its most trenchant conclusions. It ruled that “… at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide…”
The reasoning behind this finding of the ICJ, that some of the rights of Palestinians in Gaza under the Genocide Convention were plausibly threatened, was a rehearsal of South Africa’s arguments. When the president of the Court, Justice Joan Donoghue, presented its findings, she cited the same allegations of genocidal incitement by Israel’s political and military leaders that South Africa’s legal team had set before the Court. To have the prosecution’s arguments and evidence recited as valid reasons for finding the threat to the Palestinians under the Genocide Convention plausible dismissed Israel’s claim (and that of its Western enablers) that there was nothing remotely genocidal to see in Gaza.
For the Court to pass provisional orders, it needed to be persuaded that the measures South Africa had requested were linked to the Palestinian rights that were plausibly threatened. In other words, the interim measures South Africa had requested had to be relevant in warding off the plausible risk of genocide for Palestinians in Gaza.
Israel had argued that the measures requested by South Africa were irrelevant because it was already abiding by the provisions of the Genocide Convention through its efforts to relocate civilians before its bombardments and its efforts to provide humanitarian aid. In rejecting Israel’s contention, the Court cited the secretary-general of the United Nations, the head of the United Nations Relief and Works Agency’s commissioner general and the World Health Organization warning of famine, catastrophe, disease and the risk of massive child mortality and concluded “… that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.”
Having established this, the Court prescribed a legally binding set of provisional orders. Briefly, Israel was ordered to punish incitement to genocide, provide adequate humanitarian aid and ensure that evidence relating to acts against Palestinians was not destroyed. It was to report to the Court on the measures it had taken to fulfil these obligations within a month (the South African request had asked that Israel report back within a week).
Crucially, the Court ordered Israel to “… take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.”
The ICJ did not include within its provisional orders an explicit demand for a ceasefire. The consensus of legal experts before the ICJ passed its order was that it wouldn’t order a ceasefire because Hamas, as a non-State actor, did not fall within the Court’s jurisdiction. It was unlikely to order a ceasefire that was not binding on one of the principal parties in this conflict.
This was the straw grasped at by Israel and its Western enablers. Ignoring the systematic rejection of every contention made by Israel’s legal team at the ICJ, The Wall Street Journal chose to lead with “World Court Rejects Demand For Gaza Cease-Fire”. Israel’s political and military leaders, when they weren’t accusing the ICJ of anti-Semitism or denouncing it as biased, ingeniously argued that the absence of an order for a ceasefire meant that the ICJ had recognised Israel’s right to self-defence.
Israel’s pique isn’t hard to understand. The response of its Western allies — the United States of America, Britain, Germany, Australia and others — is more interesting. In the immediate aftermath of the ICJ order, the US announced that it was cutting off its contribution to the UNRWA because some of its employees in Gaza had allegedly been involved in Hamas’s October 7 attack on Israel. Predictably, the timing of this piece of breaking news meant that it became a useful distraction from the ICJ’s orders.
There is a hallucinogenic logic to the US cutting off funds to a relief agency because some of its employees allegedly participated in Hamas’s massacre of Israeli civilians and the US waving through billions of dollars in weapons to Israel for the specific, avowed purpose of bombing Palestinians. That logic is founded on an article of faith that Israel is a democracy, governed by the rule of law, served by the most moral army in the world, born of the Holocaust; therefore, regardless of how many Palestinians it kills or how it kills them, it cannot be guilty of war crimes or genocidal violence.
Notice how all references to Hamas, the Houthis or the Hezbollah are prefaced by ‘Iran-backed’ while Israel fights its corner unhyphenated despite being armed by every major country in the West. That’s because Israel is cast as an autonomous moral actor, while its targets are agency-less proxies for an axis of evil.
It’s this dehumanising rhetoric that now sets the US and the other Western nations enabling Israel against the very institutions they created after the Second World War to establish the rules-based order of blessed memory. The UN, the WHO, UNRWA and the ICJ have borne witness to the devastation that Israel has wreaked on Gaza and the response of the US and its coalition of the willing is to look the other way or subvert them (as with the UNRWA) or denounce them for exceeding their brief.
The significance of the ICJ’s ruling is not that it will stop the war in Gaza. It won’t. Its historical importance is twofold. One, it demonstrates that influential, superpower-backed countries (to borrow a phrase) can be held accountable in institutions designed for that purpose. Two, through the reactions the ruling elicits, it holds the mirror up to the unselfconscious entitlement of the West.
This piece began with The Economist so it’s fair to give it the last word. The ICJ’s judges, it wrote, in response to the Court’s order, “... risk weakening the Genocide Convention and the ICJ itself. By finding against Israel on such flimsy evidence, and using such a low threshold of ‘plausibility’, it has set a precedent that will almost certainly lead to many more spurious cases being brought before the ICJ.” It’s worth remembering that the orders the ICJ passed were by majorities of 15-2 and 16-1. The Court’s president is an American. The Economist, though, knows that it is the better judge of plausibility and evidence. It’s hard for the West, so long the proprietor of the rules-based order, to imagine a world where one of its own might be subject to those rules.
mukulkesavan@hotmail.com
