By Rose Tedeschi and Alex Rutherford
ON 26 JANUARY, an interim judgment was entered by the International Court of Justice (ICJ) in a case brought by South Africa against Israel. The ICJ has been asked to decide whether Israel is committing a genocide in Gaza. This judgement stated that there is a ‘plausible’ case of genocide for Israel to answer, and the ICJ has issued an interim order settling conditions on Israel.
The order requires Israel to refrain from any acts which could fall under the genocide convention and to ensure its troops commit no genocidal acts in Gaza. The ruling also requires Israel to prevent and punish any public incitements to commit acts of genocide and to preserve evidence related to any allegations of genocide. Further, Israel has been ordered to take measures to improve the humanitarian situation for Palestinian citizens in the enclave, keep evidence of this and submit a report to the court within a month.
The report is due as we go to press. But it is expected to be short and full of the invective the world has grown used to expect from prime minister Benjamin Netanyahu’s regime. Israel’s Attorney General Gali Baharav-Miara made that clear at the end of February when she called South Africa’s allegations ‘scandalous’ and its claims ‘absurd’. She went on:
‘The Israel Defence Forces’ determined action [is] based on the purity of arms and overall compliance with domestic and international law, which are an expression of the strength of our country.’
Israel knows it is on dodgy ground here and is likely to focus on the delivery of humanitarian aid, claiming that it is not Israel who is stemming the flow of aid, but Palestinians preventing free passage. Never mind that is the Israeli siege forcing starving Gazans to ransack those few convoys that can get through.
Of course there is a mountain of evidence that Israel is blocking aid through numerous checkpoints and delays, as the footage of lorries backed up at the border shows, not to mention the siege of Rafah, the main entry point for aid. The north is supposed to be free of Hamas fighters, yet no borders have been opened there.
On the other two requirements, Israel has some serious questions to answer. Exactly two days after the ICJ ruling, nine Knesset members, including two ministers, attended a far right settlers’ rally, where the call to expel Palestinians from Gaza and move settlers in were made. Ministers themselves called for the northern West Bank to be colonised. The government has failed to ‘punish’ any MPs for this, let alone ‘prevent’ it taking place.
Its military actions in February likewise confirm Israel’s willingness to threaten an invasion of Rafah, while bombing schools and hospitals. Thousands of lives lie in the balance; if tanks and guns don’t get them, disease might well do the job for the Israelis. The threat of genocide has moved closer, not further away.
Israel and the law
Crucially, though, the court stopped short of ordering an immediate ceasefire. The main reasoning given for this is the legal argument raised by Israel that there is a ‘lack of genocidal intention’ on their part. Essentially, because Hamas is accused of instigating the violence by its attack on 7 October, the court feels that Israel has an arguable case that its actions have been taken in self-defence, giving them a justification for the war and therefore no order of an immediate ceasefire.
This ignores the 75 years of subjugation, dispossession, and apartheid inflicted on the Palestinians by Israel. However, for revolutionary communists, the violence of an oppressed nation can never be equated to the violence of the oppressor. The Palestinian people have been the victim of terrible national oppression at the hands of the Zionist state ever since its inception in 1948. Gaza is effectively an open air prison camp for one of the most deprived and overcrowded populations on earth.
This ruling is only interim; the final decision on the case will take months or even years to reach. The ICJ’s decisions are final and without appeal, but crucially, the court has no means to enforce them. However, proof of intent is notoriously hard to prove because the legal bar for evidence is set so high.
So Netanyahu maintains Israel’s ‘unwavering commitment’ to international law and calls the charge of genocide ‘outrageous’. Israeli Defence Minister Yoav Gallant was ‘dismayed’ that the petition wasn’t rejected outright and National Security Minister Itamar Ben-Gvir mockingly tweeted ‘Hague Shmague’. It has been reported that other senior Israeli ministers have accused the ruling of being ‘antisemitic’.
South Africa’s president Cyril Ramaphosa said he expected Israel to ‘abide by the ruling’ and take measures to prevent genocide. So far, this isn’t looking likely. South Africa’s foreign minister Naledi Pandor was closer to the truth, blaming that Israel for ignoring the ruling. In the week following the ICJ’s ruling almost 1,000 more Palestinians were killed. The death toll now stands at more than 30,000.
Israel has actually expanded military operations towards Rafah, despite declaring it a ‘safe zone’. The UN has called Rafah a ‘pressure cooker of despair’. Hospitals have continued to be targeted in Israeli attacks; tanks were reportedly witnessed around Nasser Hospital—the largest functioning hospital in Gaza.
South West divide
Was it worth bringing the case to the world court? Yes! This case clearly represents a mass sentiment of rebellion among the semi-colonial world against Western imperialism. Ramaphosa, the infamous murderer of South Africa’s Marikana miners may be no anti-imperialist fighter—and his reasons may be cynical in an election year.
But it was pressure of the international movement for Palestinian liberation which the rulers are responding to. South Africans have been long standing allies of the Palestinian people and international legal expert Heidi Matthews has said that its historical fight to end apartheid lends ‘credibility and moral weight’ to its case against Israel.
Indeed, the feeling of hatred towards the West, the former colonisers of Africa and Asia, is fueled by their response to the ICJ ruling. Within hours of the decision, the USA ‘paused’ its funding to UNRWA, with Canada quickly following suit. Unsurprisingly, the UK and six other European powers, along with Japan suspended funds due to UNRWA.
The United Nations Relief and Works Agency is the only organisation that is currently able to actually provide the humanitarian resources that Joe Biden and David Cameron are ‘committed to delivering’. The EU estimates that the total suspended funds amount to more than $440 million—half of the agency’s budget for 2024. Coming at a time when Gazans have been forced to eat grass and drink polluted water to survive, it is utterly despicable.
Thankfully not all nations have withdrawn funding; Spain has announced an urgent aid package of $3.8 million, and Australia and Belgium will continue their funding to UNRWA. But the prize for hypocrisy surely goes to Germany, which has been vocal in its support of the ICJ judgment and has called on Israel to comply with the orders—at the same time as it is providing Israel with the weapons it uses to trample ‘international law’ into the dust.
Conclusion
Despite the many shortcomings of this interim ruling, and of the ICJ itself, the decision represents a blow both to Israel, and to the Western powers. It has led to the spectacle of these powers undermining the very institutions previously set up by themselves to cloak their imperialist domination of the world. Their claims to represent the rule of law and the right to self-determination, much vaunted when it comes to Ukraine and Taiwan, i.e. when it comes to condemning their rivals Russia and China, have been significantly damaged in the eyes of the global south.
The movement for Palestinian liberation must seize on this disorientation among our rulers, while fostering no illusions in the likes of Ramaphosa, and urgently coordinate its efforts internationally if it is to realise its aim of a free Palestine. The ICJ ruling can provide a platform to highlight that struggle but it cannot deliver justice. Only the Palestinians and their supporters can do that, by fighting for the revolutionary destruction of the Zionist state and its replacement with a single, secular and socialist Palestine, including the right of return.
Jeremy Dewar
COINCIDING WITH the case of genocide, the International Court of Justice is also about to rule, in a separate case this month, on whether the Israeli occupation of Palestinian territories, which it has maintained since 1967, is legal or not.
A total of 52 countries made presentations to the court, but only the US, Britain, Germany and Hungary supported Israel’s defence. Most of their grounds rested on claiming the court had no jurisdiction, a weak technical point that failed at the Hague in the previous case.
The judges will decide whether the occupation has moved from a temporary measure to a permanent state, which would be illegal unless it could be argued that this was for self-defence, and whether the occupation, and in particular the violence of the settlers, violates Palestinians’ right to self-determination, another international crime.
Again their judgement would be non-binding and Israel and the US have already indicated that they will not abide by this one. Indeed the court noted that Britain has also so far failed to comply with another of its rulings on the question of the Chagos islanders’ violated right to self-determination.
Implications
Nevertheless the case could produce problems for Israel. Quite apart from the ignominy of watching nearly 50 countries line up to condemn its occupation of the territories, countries will be allowed to sanction Israel; indeed they would have an obligation not to aid Israel’s occupation.
Eliav Lieblich, a Tel Aviv University professor, commented, ‘the implications of the situation, according to these countries, is that the occupation needs to end immediately and unconditionally, and that Israel shouldn’t be helped to maintain it.’
The UK government’s Economic Activities of Public Bodies (Overseas Matters) Bill, a proposed law to effectively outlaw the BDS campaign, is entering the Lords for its last hearing. Activists should use any ruling in Palestine’s favour at the ICJ to defy the bill if it becomes law.
