Last Friday, the International Court of Justice directly ordered Israel to prevent genocide in Gaza and allow humanitarian aid. With its attack on UNRWA, Israel is blatantly violating that order, and the Biden administration has also put itself in the dock.
Israel has responded to the ICJ’s ruling of plausible genocide by launching a full-scale attack on UNRWA, the agency that provides aid to Palestinian refugees. (Nicolas Economou / NurPhoto via Getty Images)
The Israeli onslaught against Gaza has now killed more than twenty-seven thousand people. The main legal challenge to Israel’s war has come from South Africa’s case at the International Court of Justice (ICJ), invoking the Genocide Convention and asking for emergency action to protect the civilian population of Gaza.
The court published its first response to the South African case on Friday, January 26, finding that the charge of genocide was plausible and allowing the case to proceed. It ordered a set of provisional measures to prevent genocide and alleviate the humanitarian catastrophe. But Israel and its Western allies responded to the ruling by launching a full-scale attack on the UN Relief and Works Agency (UNRWA), which plays an indispensable role in providing aid for the people of Gaza.
John Reynolds is a professor of law at Maynooth University and the author of Empire, Emergency and International Law. This is an edited transcript from Jacobin’s Long Reads podcast. You can listen to the interview here.
Before we go into the details of the ICJ’s first ruling, could you remind people of the case that South Africa put forward invoking the Genocide Convention and what they were looking for the court to do?
I’ll start by putting this in the wider context before we get into the specificities of the legal argument. South Africa was presenting a case against Israel under the Genocide Convention, so it’s obviously a challenge to Israeli policy, but it’s also a challenge to international law and institutions themselves.
International law historically has been and continues to be in many ways complicit in colonial violence and the imperial world system. The Genocide Convention has been part of that to an extent, as it comes from a quite Eurocentric context in the wake of European fascism and the Holocaust. It consciously excluded the idea of cultural genocide (or the nonphysical destruction of a people) from the definition of genocide.
From the viewpoint of the established, mainstream international legal consensus, the majority of the colonial genocides that have happened over the course of history have never been accounted for. The Holocaust has been viewed as the paradigmatic case of genocide, and there has been a process of gatekeeping around what qualifies as genocide. Rwanda and (to a limited extent) Bosnia are the only instances that have really been acknowledged by international law.
The majority of the colonial genocides that have happened over the course of history have never been accounted for.
When South Africa, as a postcolonial, post-apartheid state in the Global South, is bringing this claim against Israel for committing genocide, that is significant in trying to push back against the established parameters of what genocide is and who can charge genocide. It highlights the reality that genocide has been a world-making and nation-building phenomenon all over the world — one that has been particularly relevant in the context of imperial relations and settler-colonial projects, although that has never been properly reckoned with legally.
The South African case was a meticulous, compelling presentation and analysis of the Israeli attacks on Gaza over the past few months, but it also emphasized the context, making it clear that things didn’t start on October 7 — or in 2005 with the Gaza disengagement and blockade, or even in 1967 with the occupation. They talked about placing the acts of genocide explicitly in the broader context of Israel’s practice of apartheid since 1948, stressing that the acts of genocide they are accusing Israel of today form part of a longer continuum.
It puts the question of settler-colonial genocide as a long-term process and structure of domination on the table at the ICJ. This was what Palestinians found so powerful and poignant watching the oral presentation of the case: hearing their own long-standing and long-ignored perspectives and analysis of what they call the “ongoing Nakba” being affirmed and amplified in the World Court.
In the case, South Africa is seeking to establish through the presentation of facts and legal arguments that Israel is guilty of genocidal acts under the terms of the Genocide Convention, which includes killing Palestinians, inflicting severe mental and physical harm on Palestinians, creating conditions of life that are calculated to destroy the Palestinians as a group, and the prevention of Palestinian births through reproductive violence. These are all acts of genocide that are intended to destroy the Palestinians in Gaza as a group, in whole or in part.
In their presentation to the court on January 11 in particular, the lawyers for South Africa placed heavy emphasis on the impact of the Israeli siege, the blocking of essential supplies, and the all-out attack on the social structures of health and housing. They argued that these actions have both the intent and the effect of imposing conditions of life that essentially make it unviable for the people to survive, even apart from the brutality of the bombardments.
The South African legal team presented this harrowing set of realities through the detailed documentation of UN agencies and other organizations on the ground, and they put all of those alleged acts of genocide in the context of the specific requirement of genocidal intent. To show the intent, they produced a vast series of statements by Israeli officials and leaders that spoke about Palestinians as “human animals,” or about destroying Gaza as an entity — razing it to the ground — and inflicting a second Nakba.
When we take all of those statements of intent together with the mass killings and bombardments, executions of civilians, and forcible displacement and ethnic cleansing of the majority of the population from their homes and neighborhoods, that has to be understood for what it is: a genocidal campaign. That was the case they presented.
South Africa’s team said: We have a dispute with Israel under the Genocide Convention. We are accusing Israel of violating the convention by committing acts of genocide, and also by failing to prevent such acts and to punish incitement to genocide.
South Africa placed heavy emphasis on the impact of the Israeli siege, the blocking of essential supplies, and the all-out attack on health and housing.
On the basis of those arguments, they were asking the ICJ to order a set of provisional measures as an emergency, short-term intervention, which the court is able to do under its rules, to stop the genocidal harm that is happening right now. To be able to do so, the court needs to be satisfied of the plausibility of the claim about the rights and obligations under the Genocide Convention being violated — i.e., that there is a plausible risk that genocide has been or might be perpetrated in Gaza.
The idea of the court being able to intervene here at a provisional stage and make an urgent order, before it has time to review and adjudicate the full set of arguments and evidence, is tied to the particular aspect of the Genocide Convention that is focused on preventing genocide before or as it unfolds, not just punishing it after the fact. Beyond that, the longer-term case will continue over the coming years, and South Africa will be asking the court to rule definitively that Israel is responsible for committing, conspiring to commit, inciting, or failing to prevent genocide, and to order fuller remedies and reparations for that.
The Israeli response came on two different levels. There was the political response by Israeli government ministers and diplomats pushing back against South Africa, and then there was the more narrowly focused legal response by lawyers representing Israel at the ICJ. What were the main arguments and counterarguments that Israel sought to put across on those levels?
The political response was centered around the classic Israeli propaganda technique of trying to defame South Africa’s action as an expression of antisemitism, upping the ante further here by characterizing it as a “blood libel.” The Israeli foreign ministry accused South Africa of “functioning as the legal arm of the Hamas terrorist organization,” trying to delegitimize the entire case before it started.
There was a question mark initially after South Africa’s application was filed of whether Israel would even turn up at the Hague to participate in the case. Israel typically doesn’t engage directly at all with many of the other UN bodies and international courts and commissions — including, notably, the International Criminal Court.
In the end, however, they did take this one seriously, insofar as Israel felt compelled to defend the case and did bring its legal arguments to the court. Some of those arguments were not really a serious response to South Africa’s application — they were more about deflection and distraction.
The Israeli legal team devoted a lot of time to preliminary technicalities, trying to establish that there was no dispute between Israel and South Africa and therefore that the case should be thrown out before it goes any further. But the bar for showing that a dispute exists under the court’s own jurisprudence is very low, and realistically the court was never going to entertain those arguments.
Israel’s lawyers also devoted a lot of their time to what happened on October 7, for two reasons. One was to deflect from having to fully respond to South Africa’s submission about everything else that had happened in the hundred or so days since October 7. The second reason was to try and set up one of their main substantive legal defenses, which was that Israel’s war on Gaza is the legitimate use of force in self-defense.
In that context, according to Israel’s argument, it would have a much wider remit to use force than in the context of an already ongoing military occupation where it has a responsibility to protect the Palestinian population of the occupied territories and provide for their social and humanitarian needs. In 2004, during a previous ICJ case concerning Israel’s wall in the West Bank, the court had already said that Israel has no right to claim the international legal right to self-defense in Palestinian territory that it is occupying.
Israel is continuing to contest that finding, and there are obvious colonial echoes at play here. If we step back from the granular legal arguments around the use of force and the wording in the UN Charter, it’s obviously absurd to argue that, as the colonial power on stolen land, it is the one acting in self-defense. But that line of argument goes all the way back to the justifications for the Spanish conquests in the Americas. It is the classic colonial idea that we will come and conquer your territory, and if you resist, we are entitled to wage a war of self-defense as a just war.
Israel was arguing that, while civilian deaths are unfortunate, this is all collateral damage in an exceptional combat situation.
The other line of defense has to do with humanitarian law and humanitarian mitigation. Israel was arguing that, while civilian deaths are unfortunate, this is all collateral damage in an exceptional combat situation against an enemy that is using the urban population as human shields. Whereas in many ways it’s a classic counterinsurgency situation, and Israel is going beyond the already extreme lengths that other egregious imperial counterinsurgencies would have gone to. Even in Israel’s own previous onslaughts against Gaza, where allegations of persecution, extermination, and genocide have come up, it has never gone to the lengths it has this time with such a relentless, all-encompassing, genocidal assault.
The Israeli legal team tried to claim that the actions of their state and the Israeli military were justified by military necessity and that they were doing what they could to mitigate the humanitarian situation. But they had no answer to the accusations and evidence of field executions and the AI-generated targeting of large residential buildings (“power targets”) for maximum shock-and-awe effect with huge civilian casualties. They had no answer to the charge that Israel has been using so-called safe zones as “technologies of genocide” for more concentrated and efficient deployment of lethal violence.
When it came down to the question of intent, Israel tried to make two arguments. One was that many of the statements that were being used as evidence of genocidal intent were made by fringe figures in Israeli political life or wider society who had no connection to decision-making, even if that includes senior government ministers. The other argument was that even when it came to figures like the Israeli prime minister Benyamin Netanyahu or the defense minister Yoav Gallant, who clearly are making operational decisions, statements of theirs that seemed to be explicitly and overtly genocidal had simply been misinterpreted.
The extensive volume of self-incriminating social media posts and videos that have been shared by Israeli soldiers on the ground in Gaza cuts against this. Many of those do explicitly reference the more notorious statements made by Netanyahu and Gallant, illustrating the nexus between the statements from high-level officials and the conduct and mindset of operations on the ground.
On the particular element of incitement to genocide, once again, Israel didn’t mount the strongest defense. Just a day or two before the hearings, the Israeli attorney general had come out with a half-hearted warning to remind Israeli citizens that incitement to genocide is a criminal office.
That was clearly a belated attempt to cover some tracks and show to the ICJ that Israel was doing something about incitement. But it also implicitly acknowledged that there has been an extensive and systematic genocidal discourse at all levels of Israeli public life in recent months, which has not been addressed or suppressed.
What is the significance of what the ICJ had to say in response to these arguments and counterarguments? Was it surprising in any of its particular elements, and what are the implications going to be?
In general terms, for most people who have been looking at this closely, I think the range of orders that the court has made was considered both the most likely scenario and close to the best result that South Africa would have been realistically aiming for. What the overwhelming majority of the court has essentially said is that yes, there are plausible grounds to believe that Israel is committing genocide, inciting genocide, or failing to prevent genocide in Gaza, with an urgent and immediate risk of irreparable harm to the Palestinians.
Israel’s attempt to make everything about October 7 and self-defense was not given any credence by the ICJ.
It is in many ways a historic result at this point for South Africa and a clear vindication for Palestinians of many of the arguments they have been making about the genocidal nature of Israel’s agenda in Gaza and the Zionist settler-colonial enterprise more broadly. The ruling is in other ways insufficient and limited by what it does not say on certain counts as well as by some ambiguities in what it does say.
The ruling starts off by mentioning the October 7 attacks, before quickly moving on to everything that has happened since then. Israel’s attempt to make everything about October 7 and self-defense was not given any credence by the ICJ. The court recounted the level of disaster that has been wrought by Israel as described in the reports of various UN agencies: the reality that “Gaza has become a place of death and despair.”
The judges said that whatever humanitarian measures Israel has claimed to be undertaking were clearly insufficient to protect Palestinians from the risk of genocide and not responsive to the reality of the situation. They also included in the text and the historical record of their ruling some illustrative statements of genocidal intent made by Israeli leaders.
The court quoted the defense minister, the energy minister, and the supposedly liberal president Isaac Herzog’s declaration that there are no uninvolved civilians in Gaza, that the entire Palestinian nation is responsible, and that, as such, Israel will “break their backbone.” Thinking back to the Israeli legal team’s attempts to downplay the relevance of such statements, this was a significant moment.
The court ordered a set of six provisional measures. The first three of these were explicitly about complying with the Genocide Convention. Israel has been ordered to refrain from perpetrating genocide, to ensure its military does not commit any acts of genocide, and to prevent and punish any incitement to genocide. This follows a certain pattern in cases of this kind. There was a broadly similar set of measures ordered at this stage in the ongoing case against Myanmar over its genocide against the Rohingya as well as in the Bosnia-Serbia case in the 1990s.
The bar for establishing that genocide is plausible and that the Genocide Convention applies is relatively low at this point. It will be a higher threshold and more challenging for South Africa to prove conclusively in the later stage that Israel is responsible for carrying out a genocide. But for the more immediate purposes of the court having the basis to make an urgent order at this point, the general expectation was that it would do so, in view of its own previous practice and how compelling the South African case had been.
But nothing was a foregone conclusion. Historically, international courts and institutions have often been complicit in colonial violence and inequalities. While the ICJ today might have less baggage than other courts or UN bodies, it has not been immune here.
Thinking about the resonance of postapartheid South Africa bringing this case, for instance, the antiapartheid era had its own engagement with the ICJ through a series of cases between the 1950s and the 1970s that challenged the apartheid regime’s occupation and imposition of white supremacy in Namibia. This ultimately culminated in the recognition of the Namibian right to self-determination, but it also included a very reactionary decision by the ICJ’s “old guard of white judges” in one case along the way taken by Ethiopia and Liberia against apartheid South Africa.
Overall, then, the ICJ order here is a major victory for South Africa in terms of the big picture and potentially a significant rupture in the Global North’s international legal hegemony and certain prior assumptions about what kinds of cases can be advanced through the ICJ. For Palestinians in the here and now, however, there are understandably mixed feelings to a certain extent. That speaks to the ambiguity around international law itself and how effective it can be in changing material conditions on the ground as the unimaginable immensity of the catastrophe in Gaza continues.
Israel has been ordered to refrain from perpetrating genocide and to prevent and punish any incitement to genocide.
The fourth provisional measure ordered by the court seeks to address this. Israel must provide for immediate, effective measures to enable the provision of humanitarian assistance and essential services in Gaza. This is a significant order, particularly thinking about the amount of emphasis that South Africa’s argument put on the genocidal impact of the siege and the infliction of unviable conditions of life.
We have to think about this measure side by side with the fact that one of the other main provisional measures that South Africa had asked for is an immediate suspension of all military operations by Israel in and around Gaza. The court didn’t issue that order; it didn’t refer to it explicitly or say that it was refusing to issue that order for any reason. These judgements on provisional measures tend to be relatively short compared to the later judgments we will get at the merits phase, so the judges have left us in the dark somewhat here as to their rationale.
I think it is important to emphasize that the South African submission did not ask for the court to order a cease-fire as such, which would imply some form of agreement or imposition on both parties to a conflict. In this case, where we are talking about genocidal levels of violence and an asymmetrical power dynamic, the most important measures are about stopping the genocide.
The question then is, can you stop the genocide and reverse the conditions of life which are destroying the population group without stopping the military operations altogether? South Africa had argued that you can’t, and that Israel would need to suspend all military operations in Gaza in order for the full protection of Palestinians from genocide to be implemented — in particular, for conditions of life to be restored to any remotely humane level: for people to be able to safely return home; for hospitals to be able to begin to function again; for sufficient water, food, and medical supplies to be distributed.
The court didn’t address the question of the cessation of all military operations explicitly, likely because the president of the court wanted to maximize consensus between the judges on the other measures. What the South African legal team and the country’s foreign minister have been saying is that all those measures that the court has ordered taken together mean that there is no way you can continue the military operations in anything close to their current form. However, because South Africa had specifically asked for the suspension of all military operations, and that was not expressly ordered by the ICJ, there has been understandable disappointment from Palestinians.
The fifth measure ordered by the court said that Israel is obliged to prevent the destruction of any evidence related to allegations of genocide, because that will be important for the longer case and in other court proceedings as well. And the sixth and final part of the order is that Israel has to go back to the court in a month’s time and submit a report on all the actions taken to implement what the ICJ has asked it to do in terms of preventing genocide.
In the initial few days following the ICJ’s order, we have seen Israel killing hundreds more Palestinian civilians, with evidence of torture, field executions, and mass graves being uncovered, large groups of Israelis blocking humanitarian trucks on their way to Gaza, as well as the concerted campaign against UNRWA and the holding of a major conference on the ethnic cleansing and recolonization of Gaza attended by many senior Israeli politicians. If all that is anything to go by, it is hard to see how Israel will be able to present its actions as being remotely in compliance with the court order.
On that particular question about the suspension of military operations — almost two years ago, there was a case brought by Ukraine to the ICJ after the Russian invasion began. The initial judgment was handed down within a month of the invasion. That case also invoked the Genocide Convention, except in a somewhat different way, because Ukraine was not accusing Russia of committing genocidal acts — at least not in that particular submission. It was asking the court to rule that the Russian government had put forward a bogus justification for the invasion on the grounds that it was acting to prevent alleged genocide in eastern Ukraine.
Ukraine asked the ICJ to make an order, in similar wording to the request from South Africa, for the suspension of military operations. In that case, by March 2022, the ICJ had made an explicit order for suspension. Obviously, the Russian military didn’t cease military operations in Ukraine, which raises the issue of enforcement mechanisms for the ICJ’s judgements. But is there a particular rationale that explains why they would have made the order in one case and not in the other?
As you say, the context was slightly different in the Ukraine case. Some of this goes back to the jurisdictional quirks of the ICJ. There are many other violations of international law that in certain contexts can be adjudicated upon by the ICJ. But there is a particular clause in the Genocide Convention that offers a way to bring these cases to the ICJ.
In the initial few days following the ICJ’s order, we have seen Israel killing hundreds more Palestinian civilians.
In the Ukraine case, as you pointed out, Ukraine used the Genocide Convention as a kind of backdoor to the ICJ, where it was really a case about an unlawful invasion or aggression dressed up as a genocide case, through that argument about false allegations of genocide, as the premise for the invasion of Ukraine. The court did order Russia to suspend all military operations on the basis that this was an illegal invasion of another state’s sovereign territory and had to be halted immediately (even though that was not exactly what Ukraine had asked the court to do).
In relation to Gaza and the situation in Palestine, because it is in context of an ongoing military occupation with nonstate liberation movements and armed groups, the circumstances are somewhat different. But clearly, South Africa asked for this measure and replicated the language of the order in the Ukraine case because the ICJ had previously given that order.
Even though the pattern of facts was different, that is a precedent for the ICJ: finding a way to order a withdrawal or a suspension of military operations under the heading of a genocide dispute. In this case, we have to be honest that the court could have found a way to put together a legal rationale to order Israel to suspend its operations if it wanted to. South Africa gave it the basis to do that with its submission.
There were probably other factors going on in terms of the court’s own internal discussions, in terms of the situation of the Israeli captives inside Gaza or the fact that Hamas and the Palestinian groups are nonstate actors with different statuses under international law and are not subject to the jurisdiction of the court in the way that states like Ukraine and Russia are.
All that being said, if the court was willing to take a more creative or progressive legal interpretation to order the cessation of Israeli military operations or some conditional version of that, it had the basis to do so. That wouldn’t have gone beyond its remit. It decided not to do so, and that has to raise questions about whether Ukrainian lives have a greater value from a certain perspective than Palestinian lives.
There will be a debate continuing now, with the South Africa saying that the ICJ has implicitly ordered a suspension of Israel’s core operations for all intents and purposes, because it is there in the combined language of the other measures. But because the court hasn’t said so in black and white, it’s possible for Israel and others to spin the ruling as follows: the ICJ was asked to make an order for a cease-fire and rejected that.
While the comparison with Ukraine is relevant, in terms of the legal precedents the ICJ ruling is closer to what the court ordered in the cases against Myanmar and against Serbia. The equivalent decision for Bosnia came in 1993. The court made similar orders that Serbia should refrain from committing or conspiring to commit genocide and should prevent genocide from occurring, without ordering a cessation of military operations. Obviously, Serbia didn’t comply with what was ordered, and we had the Srebrenica genocide after that.
Here there was a strong moral argument for the court to go further and take a more explicit position on suspending all military operations. But it’s important to highlight that a suspension of Israeli military activities was one of nine measures that South Africa had requested — it wasn’t the only one.
Over the last three months, what we’ve seen from the Biden administration is a level of support for Israel at war that is almost certainly unprecedented. As well as the supply of arms and ammunition, there have been specific endorsements from Biden and his team for particular Israeli claims, such as the claim that hospitals in Gaza were being used as command-and-control centers by Hamas. They aggressively dismissed the ICJ case itself as “meritless.” What implications do the provisional orders from the ICJ and the progress of the case have for the US government and its own decision-making?
It’s clear that the US is complicit in Israel’s genocide through the supply of military aid and equipment, diplomatic protection, and other forms of support. When South Africa filed the case initially, US officials tried to undermine it by saying that it was baseless and flimsy and not serious. That argument has been very clearly and robustly debunked by the judges of the ICJ themselves. With the ICJ now saying there is a plausible case that Israel is committing genocide, it becomes much harder for the Biden administration to argue against the genocide characterization in its political, legal, and media engagements.
The US is complicit in Israel’s genocide through the supply of military aid and equipment, diplomatic protection, and other forms of support.
Joe Biden, Antony Blinken, and Lloyd Austin have recently faced a lawsuit in California from the Center for Constitutional Rights on behalf of Palestinian organizations and individuals. They argued that the senior US officials are aiding and abetting Israel’s genocide and failing in their duty to prevent the genocide. I think this is the first time that a sitting US president has been accused in court of complicity in genocide. Coincidentally, the hearings in that case took place on the same day that the ICJ order was issued.
A decision has since been issued by the US federal court in this case. While it found, as expected, that it did not have the power to resolve the case as it is a “political question” for the executive branch, the court did use some striking language in its judgment: “As the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”
The US court said that the testimonies of the Palestinian plaintiffs, the expert opinions submitted by international law and Holocaust and genocide studies scholars, and the statements by Israeli officials all “indicate that the ongoing military siege in Gaza is intended to eradicate a whole people” and therefore plausibly constitutes genocide. The fact that a federal US court has now said this will not be too easily brushed off by the Biden administration.
Under the duty imposed by the Genocide Convention to prevent genocide and the general rules of international law on state responsibility, there are a whole range of implications of the ICJ ruling when it comes to the interactions of other states with Israel. The ICJ itself has made clear that the extent of one state’s duty to prevent genocide being committed by another state is concomitant with its capacity to influence that other state — a point of particular relevance to the United States here.
Legal scholars of genocide have pointed out that the US-Israeli relationship today has “many parallels” with the relationship between the Serbian state and the Republika Srpska forces in Bosnia during the 1990s, who were “very dependent upon weaponry and other logistical support from Serbia, and there were strong political economic ties.” In the Bosnia v. Serbia case, the ICJ found Serbia responsible for failing to prevent the Srebrenica genocide by the Republika Srpska forces.
Now that it is on record from the highest court in the UN system that Israel is plausibly committing genocide, it will be much harder in general for Western states to stick to the line that this war is not genocidal and has no implications for them. If you’re selling weapons to Israel, if you’re offering diplomatic protection to Israel, if you’re engaging in trade deals with Israel or investing in Israel, all of that is now on the table in relation to the duty to prevent genocide.
As Holocaust and genocide studies scholar Raz Segal has put it: “With the ICJ ruling that Israel’s attack on Gaza is plausibly genocidal, every university, company and state around the world will now need to consider very carefully its engagement with Israel and its institutions. Such ties may now constitute complicity with genocide.” That will be a big site of struggle in terms of social movement activism and civil society organizing.
Now that we know that the case is proceeding to the next stage, there has already been quite a lot of talk about various third-party states intervening on one side or the other. Are we likely to see more of those interventions, and what impact, if any, are they likely to have on what happens?
This goes back to what I was saying earlier about South Africa bringing forward an argument that ruptures some of the gatekeeping norms around the charge of genocide and whom it can be made against. In the responses since South Africa filed the case, to a large extent we have seen lines being drawn between the Global North and the Global South. You have had some of the Western countries, particularly Germany, coming out very strongly to say they will intervene in support of Israel, while states like Jordan and Bangladesh have commended South Africa for its initiative and indicated they will intervene in the case.
In the responses since South Africa filed the case, we have seen lines being drawn between the Global North and the Global South.
Normally, the process for third-party interventions in cases like this is that you will have an invitation from the court to submit what are called declarations of intervention by other states that have an interest in the case or a point of interpretation on the treaty in question to offer to the court. That will probably come over the next couple months, and states will then be able to make their submissions (although there’s nothing formally stopping states from filing an intervention in the meantime).
In the Ukraine v. Russia case, there was a policy of mass interventions by the West European states, where more than thirty states intervened in support of Ukraine really as a show of political and symbolic support more than offering any particularly profound legal arguments. This was unusual in being done en masse like that, and it has established a precedent and set of expectations, which is why we see so much agitation from civil society groups and opposition parties in many countries now pushing their governments to commit to intervening.
This is part of the wider dynamic that the Russian invasion of Ukraine has thrown up on so many levels, where it has created the idea that we as the Global South or we as the left-wing opposition are going to try and instrumentalize these institutions to call for sanctions against Israel or interventions in ICJ cases and so on, in the same way that the Western establishment has done against Russia.
Part of it is about holding a mirror up to some of the hypocrisy of the Western states, and part of it is maybe about a return to the more radical agitation of the 1950s, ’60s, and ’70s, when the Third World was using UN bodies and international institutions in active and subversive ways to agitate for a different world order.
We saw the response from Namibia to Germany’s announcement that it was going to intervene in the case in support of Israel. They said in effect, “Who are you to be lecturing anyone about genocide and saying that South Africa has no right to bring this case? You have clearly failed to learn the lessons from your own history.” It was a very explicit reference to the German genocides of the Herero and Nama peoples in Namibia during the early twentieth century.
A lot of those political fault lines are coming to the surface again. If we think about Bangladesh’s intervention, for example, there is a provision in the Bangladeshi constitution that gives the state an obligation as a matter of foreign policy to support anti-colonial and anti-racist struggles and peoples who are struggling against oppression. That is a very 1970s, Third Worldist notion that could be seeing something of a revival, and it is in that spirit that we might see a big wave of global South countries intervening in the case.
Ultimately, I think there are some serious questions for the Palestinian anti-colonial movement and global solidarity campaigns — as well as for South Africa and its own emancipatory social forces, which are engaged in ongoing internal struggle against the state’s “neo-apartheid” material realities — about how much faith should be put in an institution like the ICJ and in international law as a site of struggle more generally. This does create the risk of further depoliticizing and neutralizing consequences. But at this point, the case is there, it’s going ahead, and many countries are probably going to want to intervene as the proceedings continue over the coming months and years.
For now, the urgent, immediate provisional measures are about halting the genocide and stopping the harm before it gets any worse. With the slaughter and starvation of Palestinians continuing every day in Gaza, and the exponential risks of famine and disease, Palestinians obviously don’t have the luxury of waiting for the ICJ’s final verdict.
The ICJ’s ruling that this is plausibly a case of genocide has confirmed what the mass mobilizations around the world have been saying for the last few months.
The ICJ’s ruling that this is plausibly a case of genocide has confirmed what the mass mobilizations around the world have been saying for the last few months. So more important now than what the ICJ decides in the end is how the provisional measures can be harnessed by states, social movements, and international agencies to stop the obliteration and the ethnic cleansing that so many in the Israeli political echelons now want to see through to a decisive end.
The longer-term question for the ICJ will be about whether this is a definitive case of genocide, what reparations should be paid, and what remedies there should be down the line. It’s important to highlight here that, whatever the ICJ ultimately decides, this should not be the final word on genocide. Genocides have been perpetrated in many places before the Genocide Convention was ever written and adopted, and there is strong evidence of numerous genocides since where there has been no formal legal recognition.
The broader political and social movements should not be pushed out of the picture by legal analysis and expertise that will be focused on this case and what it says over the years to come. That point also applies to the larger questions of decolonization and liberation for Palestinians beyond simply their protection from annihilation.
Since the ICJ published its ruling, the main action taken by the US and its allies such as Britain, Canada, and Australia has not been to apply pressure of any kind on Israel but rather to cut off funding to UNRWA, which is providing the basic necessities of life for people in Gaza. Does that move have legal implications in view of the ICJ’s order that Israel must take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”?
On the face of it, yes. It goes to Israel’s obligations under the order, as Israel was not uninvolved in the suspension of funding — it actively sought to engineer it. The background context and chronology here are also important. We know that Israel has been trying to sabotage UNRWA for decades. It sees UNRWA as a source of serious political irritation.
Israel has been trying to sabotage UNRWA for decades.
That is because of its role as a major international agency that unifies Palestinians across borders and partitioned territories, because of its association with the Palestinian right to return, because of its role in educating Palestinians about their own histories, and because of the lifeline it has given Palestinians in a place like Gaza, which Israel wants to render uninhabitable for them. Israel has made all sorts of allegations about UNRWA in the past which were not substantiated, and it has consistently pushed Western donors to cut their funding.
On the US front, this latest move by Joe Biden is an echo and continuation of Donald Trump’s freezing of 83 percent of his administration’s funds to UNRWA at one point. That instance did not even have a counterterrorism pretext. Rather, it was an open, unashamed political attack on UNRWA and the rights of Palestinian refugees as an obstacle to the ambitions of Trump and his Israeli allies to impose a coercive and asymmetrical “peace.”
On December 29 last year, which happened to be the day that South Africa’s application to the ICJ was announced, Israel’s Channel 12 reported on a high-level, three-stage Foreign Ministry plan to “push UNRWA out of Gaza.” The first phase of this was to be a report designed to smear UNRWA over alleged “cooperation” and “entanglement” with Hamas, before the follow-on phases of restricting its operations in Gaza and ultimately forcing it out completely.
On the back of this, on January 4, the Knesset Subcommittee for Foreign Policy and Public Diplomacy held a discussion on UNRWA, during which speakers called for the destruction of the agency to begin immediately as a necessary prerequisite to “win the war.” In other words, we know that the ground was being prepared, and it is telling that Israel and the United States turned the screw on January 26, just a few hours after the ICJ order was issued.
This was clearly intended to deflect attention away from the ICJ, if not to exact economic retribution against the Palestinians and their Global South allies for having the temerity to bring a case like this. But it is also a deeper structural component of the longer-term genocidal process itself. Defunding UNRWA helps to intensify the impact of the “complete siege” that Yoav Gallant ordered in October.
There is a persuasive argument that this move is deliberately designed to contribute to the infliction of living conditions calculated to bring about the physical destruction of the Palestinians in Gaza in whole or in part. UNRWA is the primary provider of humanitarian relief and assistance in Gaza, and the second-biggest employer in the territory. It has a deeply established and effective infrastructure in Gaza and across the region, and there is no way logistically and operationally that it could be replaced or replicated any time soon. The US administration itself has pointedly emphasized this.
When it comes to Israel’s obligations under the ICJ’s order, it is legally compelled to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip” (as being imperative to halt and prevent genocide). The Israeli campaign against UNRWA not only fails to actively comply with the order but runs directly contrary to it. When Israel returns to report to the court on its compliance in late February, South Africa may have a strong argument to make that the obstruction of UNRWA’s services and humanitarian assistance is a calculated violation of the provisional measures.
Defunding UNRWA helps to intensify the impact of the ‘complete siege’ that Yoav Gallant ordered in October.
I also want to flag an additional layer here that has to do with the contestations over basic facts and Israel’s ongoing efforts to undermine everyone reporting on the situation in Gaza, from local and international journalists to the Palestinian Health Ministry to the UN agencies themselves. UNRWA and its documentation were cited extensively throughout South Africa’s submission to the ICJ, including a damning UNRWA statement that “unilaterally declared ‘safe zones’ are not safe at all. Nowhere in Gaza is safe.”
The ICJ ruling itself also cites UNRWA several times — its factual account of the catastrophic material situation in Gaza and also its analysis that the situation is “compounded by dehumanizing language” on the Israeli side. It is hard not to read Israel and its allies going after UNRWA as a backlash against this, an attempt to blacklist UNRWA’s name and material from the case as it proceeds. This is all the more so now that the Israeli prime minister has come out and openly accused UNRWA of providing false information that was used by the ICJ, with Netanyahu blaming UNRWA for “unfounded” charges “that were leveled against us in the Hague.”
Beyond Israel itself, while the ICJ’s order is directed specifically the Israeli state as the defendant in the case, the court’s finding that there is a plausible claim of genocide has implications for all other states that have legal duties to prevent genocide. Donor states have this obligation, and any state that knowingly aids or assists Israel’s wrongful acts would become liable under international law. The legal, political, and moral complicities of many of the Western countries have already been raised in various settings, and this is another aspect to it.
Any state that knowingly aids or assists Israel’s wrongful acts would become liable under international law.
The UNRWA debacle also points us to the broader reaction of Israel’s allies to the ICJ. The United States, Britain, Germany, and the Anglo settler colonies have been consistent in backing Israel and, with varying degrees of diplomatic nicety (or not), rejecting the premise of South Africa’s case.
The statement by the British government was a particularly impressive acrobatic feat in declaring respect for the ICJ but simultaneously ignoring and rejecting all of the orders it made, denouncing the case as “wrong and provocative,” and effectively giving Israel a green light to keep doing what it’s been doing. Other Western states like Italy, which have stayed largely quiet on the ICJ, have taken the opportunity to jump on board the UNRWA-defunding bandwagon — Italy’s right-wing government was already reneging on some of its UNRWA budget commitments, so this gives it a convenient boost.
For some Western states nominally committed to the facade of the rules-based international order, South Africa’s ICJ gambit has left them in an uncomfortable position: they want to continue to “stand with Israel,” but they also want to be seen as respectful of the ICJ and its authority. As a result, they have been more reluctant than the likes of the United States or Britain to criticize the South African case or the ICJ process.
Going after UNRWA is an alternative way for them to double down on their diplomatic backing for the Israeli genocide. It betrays both a deeply engrained anti-Palestinian racism and a liberal-capitalist acceptance of starvation, famine, and disease when it comes to racialized or suspect communities. The reinstatement of funding to UNRWA is a question of life and death for thousands and thousands of people in Gaza, so this is now another key site of struggle for Palestine solidarity.Original post