“The ICJ is a lie!! There is no justice in the World!!”
~ Bisan Owda, 26/01/24
On hearing that the International Court of Justice in The Hague, in her words, “forgot to demand a ceasefire”, Bisan Owda, the Gaza filmmaker and storyteller, posted these words on her Instagram story: “The ICJ is a lie!! There is no justice in the World!!”. Bisan, one of the several Gazans live-reporting the past 100+ days of genocide to her now 4.1 million followers, added in a reel, “Thanks, world. We will go back to doing this, like we started it, alone.” In the comments, maybe thousands of people try to reassure Bisan that the ICJ decision was a win, that Israel is literally “on notice” and the world is (still) watching. So, who is right today? Is it Bisan, in Gaza and living (we hope) through the genocide or those that are celebrating the ICJ decision as at least a partial win?
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The 26/1/24 Order
South Africa submitted its application implicating Israel on December 29th under both the ICJ Charter and the Genocide Convention. The ICJ is the Court of the United Nations, the highest court in the world. It’s the UN’s ‘judiciary’ where the General Assembly is its ‘legislature’ and the UN Security Council (SC) is its main ‘executive’. The ICJ hears disputes between states, largely what in domestic law we would call ‘civil cases’, disputes over the violation or interpretation of agreements, which are called conventions or treaties on the international level. The ICJ’s decisions are binding on states (unless they’re advisory), and the ICJ relies on the Security Council for enforcement and policing. The ICJ isn’t a criminal court, but on the international level, we have the International Criminal Court, also in The Hague, and various special tribunals dealing with the aftermath of specific conflicts. The ICC is not part of the UN but was established by its own treaty. The international criminal courts try individuals accused of crimes in international law, such as war crimes, crimes against humanity and also genocide (the elements are defined in the ICC Charter, aka the Rome Statute). Bolivia, South Africa, Bangladesh and other countries have asked the ICC to investigate Israeli officials in relation to the recent campaign against Gaza.
South Africa’s government felt compelled, as a state party to the Genocide Convention, to give effect to its duty as a signatory to this treaty, to prevent a genocide from happening and not to be complicit in genocide that is already happening. Normally, for the ICJ to issue a decision, in this case, on whether genocide is being committed could take years, so given the urgency of the situation, South Africa, in its application and the hearings last week, asked the court for a number of provisional measures – what in domestic (national) law would be called injunctions. Its number one ask was for the court to order Israel to cease its military operation in Gaza.
The ICJ explained in the reading today that it had first to consider whether it has jurisdiction in the case, that the measures sought are urgent, and that failure to award them would result in irreparable harm (here, to the population of Gaza). South Africa’s allegations do not concern just the commission of genocide but also a failure by Israel and indeed all other signatories to the Convention to prevent genocide and to punish acts of, and public incitement to, commit genocide. In order to grant provisional measures, the Court had to decide whether South Africa’s claim that Israel is breaching the Genocide Convention is at least plausible and that there is indeed a risk that Israel is acting with genocidal intent. South Africa had argued that genocidal intent was evident, for example, in Netanyahu’s Amelek references, which would have been understood by soldiers on the ground as orders to target civilians, as was clear from their TikTok videos, some of which were shown in court during the hearings on January 11th.
One interesting point, which the Court also picked up, was that in the wake of the ICJ hearings last week, the Israeli Attorney-General did already issue a statement (publicised in English, so the world would know) aimed at Israeli hardliners to emphasise that ‘a call for intentional harm to civilians may amount to a criminal offence, including that of incitement, and that Israeli law enforcement authorities are examining several such cases.’ This shows that there is at least some awareness of either the importance or, more likely, the optics of not talking about Gazans as ‘human animals‘.
Today, the court announced in its order (after it confirmed it did have jurisdiction) that, indeed, South Africa’s claims are plausible, that there indeed is a risk that the Genocide Convention is being, or will be, breached. The Court’s President, American Judge Joan Donoghue, quoted extensively from the South African application reiterating the enormous devastation Israel has brought about in Gaza, recognising the urgency of the humanitarian catastrophe, recently named as such by another part of the UN, the UNOHCHR. She moreover quoted the statements made by Israeli minister Yoav Galant that have by now become very familiar, and those by the Israeli President Herzog, which South Africa argued constitute genocidal intent. At this point in the reading of the court’s interim order, which was live-streamed by various TV stations, some of which also showed crowds gathered outside the court and crowds in Gaza and the West Bank, it might have felt like we were heading for a ceasefire. However, when the court shifted from words to actions, the mood changed. Judge Donoghue explained that the court has the power to formulate its own provisional measures, and it proceeded to outline them one by one. First off, the court ordered Israel to do what it could to avoid breaching the Genocide Convention. Then, to allow in more aid (‘basic services and humanitarian assistance’), and also, to take care not to destroy the evidence that would be needed at the merits stage of the ICJ case, and to, in fact, ensure some measure of accountability for its officials or troops making genocidal statements. It finally ordered Israel to report back in a month on how it’s been giving effect to the provisional measures. It did not, however, order a cessation of all military operations.
The court’s decision to formulate its own measures, even though they followed the remaining measures South Africa asked for closely, allowed the court to avoid explicitly denying the first measure asked for and having to straight up say it was not willing to order Israel to stop its military operation. ‘Don’t commit genocide’ simply means you can continue the killings, just not with genocidal intent. It is at this point where we can agree with Bisan that the Court “forgot” to order a ceasefire. “Forgot” in scare quotes, as it cleverly got itself out of saying so directly. There are those, like the South African Foreign Minister in her press conference outside the ICJ today, who have interpreted the ‘don’t commit genocide’ order as meaning Israel should stop its (genocidal) military operation, but in effect, this is not what the court intended it to mean at all. It could not order a cessation of the operation because Hamas pledged yesterday (and it has done so for months already) to abide by the terms of a permanent ceasefire and to release all the hostages, and with any cessation order, the ICJ would have sealed the massive military defeat of Israel. The other point is that genocide isn’t measured solely by its effect (say, the killing of tens of thousands of civilians). There’s no genocide unless there is the intent to commit genocide. Although Israel has received a slap on the wrist and been told to tone down the rhetoric, Israel is effectively enabled, facilitated, and legitimised to continue what it claims to have been doing all along, ‘exercising its right to defend itself’, explaining civilian deaths with the idea that there are ‘no innocents in Gaza’, or that any civilian deaths occur because Hamas’ hides behind civilians’—bringing a handful of incubators rather than switching the power back on, ‘allowing’ a few trucks of aid on a population of millions. And, of course, upholding the idea of being ‘the only democracy in the Middle East‘ by asking the army to investigate some of its soldiers. And by claiming that references to Amelek or human animals are only figures of speech, not evidence of intent.
Netanyahu, in his press conference this evening, reminded the global public (in English) that this is indeed exactly what it has been doing and again suggested the very South African suit is antisemitic. It is easy to feel compelled to defend the ICJ just to counter this alone. In particular, when you remember that we have been here before, for instance, in 2014, when then defence minister Ya’alon stated the need to ‘uproot Hamas’ in order to safeguard Israeli access to the natural gas in the sea off the coast of Gaza.
History and context are important, in particular when they are being deliberately omitted or erased. It is interesting that the Court avoids some of the most powerful aspects of the South African application. The ICJ started its reading today on October 7th, not as South Africa did 75 years earlier, putting what happened in October in its historical context. The ICJ also avoided adopting South Africa’s (and the Palestinians’) framing of the situation as one of Palestinian resistance against Israeli occupation and genocide, rather than, as Israel has done and Western politicians and media have unquestioningly copied, as a framing of a war between two parties. The latter framing ‘allows for’ an entirely different set of legal rules – laws of inter-state war vs the laws of occupation and much greater liberty in using force (yes: the laws of war actually exist to enable war). This is the reason Israel has pushed the ‘war’ framing while at the same time repeatedly asserting there should never be a Palestinian state.
Did the ICJ kick the genocide issue into the long grass by giving Israel a pass for a month? It’s likely that Israel’s report will simply be a repeat of the usual talking points. South Africa will have a right to reply, and the court might revisit the provisional measures order. If Israel does tone down the rhetoric, it will become harder for South Africa to show evidence of intent to commit genocide. The one month gap is a gift to Israel, a ‘get out of jail free card’ if you will; it allows Israel to continue its mass assassination factory, to continue to repair its brand on the global arms market at the expense of the Palestinians. But also, it gives time to ceasefire negotiations that are continuously happening in the background – and it may even give Israel a dignified ‘out’ of the operation that it can no longer afford on the domestic level, both economically and in terms of the growing pushback from some sections of the Israeli left.
So, was the ICJ order today the giant wet noodle some have said it is? Giving Israel a pass to continue for another month is not helping those facing imminent death by either bombs, disease or famine today, as we can hear in Bisan’s video. Some play down the ICJ’s failure by saying, ‘We didn’t expect to get a ceasefire’, or even if we did, Israel wouldn’t have abided by it. And, the Security Council, in its function as the executive, could see another US veto. It’s not like we haven’t been here before. The ICJ has ordered Israel to stop building the wall on Palestinian land and all states to ensure that it’s dismantled. Twenty years later, that wall is still there and is still being built with European machinery and support. The Goldstone Report called out Israel for its indiscriminate bombing of civilian areas, targeting civilian infrastructure, use of white phosphorous, snipers killing civilians waving white flags, etc., in Israel’s Operation Cast Lead (2008-09), all things we see again today. Also, Israel is pretty much only doing what other states already did, for example, the US in Iraq (where it is said a million people died as a result of the US war) – remember the sexual torture of prisoners at Abu Ghraib, and remember that Chelsea Manning went to prison for longer than any US member of the military ordering the killing of civilians as exposed in the footage she leaked.
On the basis of the current order, and if Israel ensures its leadership shushes on the genocidal statements for a month at least, it is going to be highly unlikely the court will find genocide at the merits stage with the decision due in a few years when we will have already moved onto the next crisis. Targeting hospitals (which will definitely kill lots of civilians even if you manage to kill a handful of combatants) is now a thing. So perhaps, in the words of Motaz’, another Gaza journalist, with 18.5 million followers, we can say, ‘Fuck the ICJ‘.
At the same time, very powerful statements were made in the ICJ by the South African legal team, and they garnered lots of media at a point when global attention was starting to wane. In fact, the blistering speeches by the South African legal team were more effective to the global public than they were to the judges. Masses of South African flags at recent Palestine demos evidence the huge cultural impact of South Africa standing up for Palestine. A whole range of countries explicitly endorsed South Africa. Perhaps this will lead to a resurgence of the non-aligned movement and the tables of international law, global legitimacy at least, turning. Europe, in particular Germany, is regressing dangerously and killing off any ‘cool’ factor Berlin still had by putting all international artists, DJs, etc, up against itself: Berlin is Over. At the same time, an unintended side effect of Germany joining Israel’s side is that ‘the world’ is now learning about Namibia and Germany’s genocide of the Herero and Nama peoples, a topic Namibians have been trying to get people interested in for decades.
Some have said that South Africa is “Playing the game” – they needed to bring this case in order to show the world that international law and the international institutions don’t, in fact, exist to deliver justice to the people of the world. That, in fact, Bisan is right. So, could this case signal the end of international law? Or did it perhaps do just enough to save itself, for good or for bad? It is up to us.
We know from Third World scholars that international law is a creation of the imperialist state system that brought us racial capitalism, the trade in (upwards of 13 million) enslaved people, global western white supremacist hegemony coated in a very attractive and very addictive, sugar coat of ‘human rights’, international humanitarian law, and so on. It is tempting to understand international law as a salvational force ‘out there’ that can deliver justice ‘if only’. It feels comforting to put ourselves in the hands of learned experts who impress us with their ‘secret language’, powerful speeches, years of education at elite institutions, wood-panelled rooms, and wigs and gowns. It is hard to accept that ‘The Rule of Law’ is the rule of power and capital by another name. So, Bisan is right; neither the courts nor governments will save us.
In reality, in the cold light of the freezing Gaza winter day, it really is up to us. All of us. In the words of abolitionists, we keep us safe. It’s worth remembering today is Angela Davis’ 80th birthday – we can see Angela’s courage and determination in Bisan, who, with her reporting, has probably saved more lives than any court ever can. This battle and the struggle as a whole (remember, no one is free until Palestine is free) will be won not in the courts but in the streets. And here is where we can see Bisan, Motaz and the other Gazans are not alone.
In our thousands, in our millions, in the streets, in our unions, our communities, our global networks of resistance, alternative media, mutual aid, and solidarity, we are dismantling the conditions that are making this genocide possible and building the kind of world where we do not need to call on states/systems for our thriving.
In the sobering words of Palestinian international lawyer Noura Erekat, rather than relying on international legal mechanisms, ‘we need to continue to disrupt and agitate until Palestine is free.’
~ Grietje Baars
Grietje Baars is a reformed international lawyer based in London.
Image: Guy Smallman