The International Court of Justice found Israel should answer a charge of genocide. South Africa filed the charges with the Court a mere two weeks ago. Yesterday, almost all the judges found that Israel’s slaughter in Gaza qualified under the definition of genocide under international law. The ruling was provisional and to be followed with further legal proceedings that could take several years. But this development is the beginning of a process that could, and hopefully will hold Israel accountable for its crimes, on the world stage.
Among the evidence they pointed to which supported the South African genocide claim, was an astonishing statement by Israel’s President Isaac Herzog:
On October 12, when Isaac Herzog gave his opinion that there was no difference between a Palestinian militant and a pregnant Palestinian woman, he was standing next to Ursula von der Leyen, head of the European Commission. As Herzog spoke, von der Leyen blinked and said nothing. She heard it said, not a few inches from her own face, that an “entire nation” was guilty and deserving of death, and raised no objection. Western diplomats and politicians have done a lot of that recently: blinking and saying nothing, stirring only when the purse strings jingle and the Israelis ask for more ammunition. This is not a facetious observation: Most nations, including the United States, have strict rules against selling arms to nations that violate international law. Though such a rule has not stopped gun-runners before, part of the worth of the ICJ’s order is in having one more weapon that might be used to run a stick through the spokes of the machine, something that might, with a little effort, slow the tally of Palestinian dead…
It is a moral indictment of nation states like the US, and regional/global bodies like the European Union, NATO, the International Criminal Court (ICC), and the UN Security Council, that they have stood by— as did Ursula von der Leyen–as Israel engages in the slaughter of innocents. Even if their leaders do not feel shame for such sniveling behavior, their constituents will, and hopefully hold them accountable.
ICJ outcome sweeping victory for South Africa
The ICJ results were breathtaking in scope. Virtually every international lawyer and academic expert felt the case South Africa argued was powerful and persuasive; and that Israel’s defense was weak. But most were cautious about predicting a result since the stakes were so high and pressure mounted on the judges from all sides. That made the verdict all the more impressive. Almost every judge agreed with all the charges South African raised except one: they refused to call for an immediate ceasefire.
But they found Israeli intent to commit genocide; that Israel’s senior leaders had incited genocide. It ordered Israel to cease incitement and punish those in breach of the court’s finding. They told it to permit unfettered access to humanitarian aid and directed it to preserve all documentation and evidence that fall within the genocide definition under international law and sought access to Gaza for monitors to determine compliance. Finally, the Court demanded a report within 30 days showing it had complied with the Court’s findings.
Israel won several concessions: the judges called for the immediate freeing of all hostages. They affirmed that Israel had a right to self-defense. And they refused to call for a ceasefire. These were significant findings in Israel’s favor. But they pale in comparison to the six charges which the Court validated. Only a single judge found that the Court did not have jurisdiction and that the case shouldn’t have been brought at all. Every other judge joined almost unanimously, finding that Israel was culpable.
Even the Israeli judge, Aharon Barak, who had defended the Gaza invasion before being named by Israel as its judge on the panel–voted that Israel had engaged in incitement to genocide; and that it must permit Gazans access to humanitarian aid. This is all the more humiliating because the Israeli government chose him to represent it on the panel. Even their own judge found against them.
The US government response was predictable, but no less shameless for that. Before the verdict, the Biden administration denounced the case and questioned its legitimacy. After the result, its spokesperson acted as if this was the result it sought all along. He said that everything the Court requested of Israel, the US had been demanding including its adherence to international law. This claim neglects that the US has been arming Israel and enabling the very genocide we refuse to acknowledge. It attempts to gloss over our own culpability as an accessory to genocide. It reeks of the rankest hypocrisy.
The ICJ ruling will have ripple effects throughout the world. Prof. Christine Schwobel-Patel laid out some of implications in this Twitter thread:
1. Companies delivering arms will have to show, as part of due diligence, that they are not contravening international law; but probably more importantly, national laws that prohibit complicity in genocide
2. States that have contracts with arms companies delivering to Israel could potentially be viewed as complicit in genocide: (threat of) more ICJ cases?
3. States with universal jurisdiction legislation for genocide (e.g. Switzerland) could see (further) arrest warrants against Israeli officials and their allies issued
4. Investors will start to get jittery about potential risks associated with Israel’s economy/regional escalation (demand higher risk premiums)
5. Calls for sanctions will get louder
6. Universities that have research partnerships with Israeli universities that develop weapons/systems to oppress Palestinians could see pressure from their students (student fees for assisting genocide is a bad look for reputation sensitive universities)
7. Legitimacy of the (huge) numbers of Palestinians killed, and injuries reported. Israel claimed that these were Hamas figures and therefore not reliable.
8. In short: an arguably legally sanctioned growing isolation of Israel and its allies in terms of foreign policy/economy…
In other words: the ruling will empower states which oppose Israeli genocide and the international Palestine solidarity movement. Politicians in the US and elsewhere advocating to limit or end military aid to Israel will find their views becoming mainstream, rather than outliers. Legislation they propose will find a greater following and more likely to become law. This will not only weaken Israel in practical terms–by placing constraints on military weapons shipments–but also in moral terms.
It will also strengthen the BDS movement, especially regarding the academic boycott. Above, she mentions the threat to Israeli scientific and technical institutions which collaborate with Israeli military and intelligence services. But faculty in almost all Israeli universities participate in research (not only in the fields she mentions) that supports the Occupation.
ICJ could spur flood of genocide claims against Israel
Though the ICC and ICJ are separate judicial bodies with a different set of rules and protocols, the latter had added urgency to the ICC investigation of Israeli war crimes–which has been slow-rolled for years by various chief prosecutors including the present one. Karim Khan will look like a legal laughingstock if he refuses to advance his own body’s investigation; given that the ICJ has, in two weeks, done more to hold Israel accountable than the ICC has done in seven years.
The South Africa case has already spurred Mexico and Chile to bring a separate case against Israeli case before the ICC for crimes against humanity in Gaza. It’s very possible this will turn bring on a fire-hose of legal challenges. Already, the Center for Constitutional Rights has charged the Biden administration (Biden himself, Antony Blinken and Lloyd Austin) with making the US as an accessory to genocide:
The case charges President Biden, Secretary of State Blinken, and Secretary of Defense Austin with failing in their legal responsibility to prevent – and their complicity in – Israel’s genocide of Palestinians in Gaza. It seeks an emergency court order to halt U.S. support for Israel’s assault, including by enjoining the transfer of more weapons and unconditional support to the Israeli government.
Israel: domestic impact of ruling
Although there are severe security constraints within the Israeli political system making it almost impossible to end the Occupation or recognize a Palestinian state–the judicial finding will weaken Netanyahu’s already tenuous hold on government. It seems likely, though not certain, that he will not lead the Likud Party in the next election. Polls show that the Opposition will win and take over the government. As I said, there are political limits on what any Israeli government is willing to do. But even a slightly less right-wing government would give more heed to a genocide finding. At the very least, it would be more likely to negotiate the freedom of the hostages and end the war. This would satisfy two key demands in the ICJ decision.
Netanyahu has denounced the legal findings, calling the court “anti-Semitic.” Further, Israelis in general despise international bodies like the UN, which are viewed as inherently anti-Israel. Nonetheless, Israelis have extensive ties to the world outside their country. Israelis travel extensively as international tourists. They do business around the world. Israel is one of the largest arms exporters in the world. Technology exports also play a key role in Israel’s economy. All this will be impacted by Israel’s increasing isolation. Israelis either understand the isolation and pariah status they will suffer, or they will come to do so.
Their military and political leaders will also find themselves not only isolated, but subject to criminal legal proceedings abroad. Activists in Switzerland filed a complaint against Pres. Herzog when he last visited. Any country with universal jurisdiction may charge any Israeli leader who sets foot on its territory.
It is a dark irony that Israel, a state founded on the ashes of the Holocaust, would commit the same crime against another people. The Nuremberg Tribunal tried Nazi leaders for crimes of genocide and held them accountable. The ICJ has not yet gone as far. But it has made the first step in this process.
Arab states like Saudi Arabia will be more reluctant to ally themselves with Israel. It will weaken the Abraham Accords and make its signatories more skittish about cooperating with Israel. It will strengthen the hand of Israel’s rivals in the Muslim-Arab world including Iran, the leader of the Axis of Resistance. The decision also diminishes Israel’s claims against Hamas by focusing world attention not on the latter, but on Israel itself.
The prime minister further sabotaged himself politically by (likely) leaking an audio recording of a meeting with hostage families. In it, he sought to blame the Qatari hostage negotiators for causing the delay in the freeing of their hostage relatives. He attacked them as hostile to himself and Israeli interests. Netanyahu thought either that this would deflect blame from himself or that it would throw red meat to his own followers who despise Arabs in general.
However, a firestorm erupted after the audio was made public. Qatar fumed and denounced the prime minister. He in turn blamed the hostage families for releasing the recording. They fired back that all cell phones and recording devices were taken from them before they entered the meeting room. They further noted that the only individuals who did record the meeting were Netanyahu’s advisors. Clearly, the only source for the leak could be Bibi himself. This was not only an own-goal, it increased the anger against him for blaming the victim families for his own faulty decisions.
One of the few points which Israel won in the ICJ decision, was a call for Hamas to release the hostages. Yet, it is Netanyahu himself who is sabotaging negotiations for their freedom. This offers further evidence for the Court, that it is Israel which refuses to negotiate in good faith. As this case advances into a full-fledged trial in coming years, Netanyahu’s behavior will likely become a key focus of the case against Israel.