Over the past month, we have watched an astonishing,
high-stakes global drama play out in The Hague. A group of countries from the
global south, led by South Africa, dragged the government of Israel and, by
extension, its rich, powerful allies into the top court of the Western
rules-based order and accused Israel of prosecuting a
brutal war in the Gaza Strip that is “genocidal in character.”
اضافة اعلان
The responses to this presentation from the leading nations
of that order were quick and blunt.
“Completely unjustified and wrong,” said a statement from
Rishi Sunak, Britain’s prime minister.
“Meritless, counterproductive, and completely without any
basis in fact whatsoever,” said John Kirby, a spokesperson for the US National
Security Council.
“The accusation has no basis in fact,” a German government
spokesperson said, adding that Germany opposed the “political
instrumentalization” of the genocide statute.
But on Friday, that court had its say, issuing a sober and
careful provisional ruling that doubled as a rebuke to those dismissals. In
granting provisional measures, the court affirmed that some of
South Africa’s
allegations were plausible and called on Israel to take immediate steps to
protect civilians, increase the amount of humanitarian aid, and punish
officials who engaged in violent and incendiary speech. The court stopped short
of calling for a ceasefire, but it granted South Africa’s request for provisional
measures to prevent further civilian death. For the most part, the court ruled
in favor of the global south.
Accusing the state created in the aftermath of the slaughter
that required the coinage of the term genocide is a serious step. Scholars of
genocide have raised alarms about statements from Israeli leaders and its
conduct in the war while stopping short of calling the killing genocide. Some
have welcomed South Africa’s application as a necessary step to preventing
genocide.
The court was not asked to rule on whether Israel had in
fact committed genocide, a matter that is likely to take years to adjudicate.
Whatever the eventual outcome of the case, it sets up an epic battle over the
meaning and values of the so-called rules-based order. If these rules do not
apply when powerful countries do not want them to, are they rules at all?
“As long as those who make rules enforce them against others
while believing that they and their allies are above those rules, the
international governance system is in trouble,” said Thuli Madonsela, one of
South Africa’s leading legal minds and an architect of its post-apartheid
constitution. “We say these rules are the rules when Russia invades Ukraine or
when the Rohingya are being massacred by Myanmar, but if it is now Israel
butchering Palestinians, depriving them of food, displacing them en masse, then
the rules do not apply and whoever tries to apply the rules is
antisemitic? It
is really putting those rules in jeopardy.”
Reading the document South Africa prepared, I wondered if
the leaders of the Western world who dismissed the allegations out of hand had
read the same evidence that I had. It is a harrowing chronicle of a charnel
house of horrors that shows in detail how Palestinians in Gaza have endured
relentless bombing and displacement. I was struck by how thoroughly documented
the allegations were and how selective the jurists were in their sources of
evidence. The document includes 574 footnotes that cite blue-chip sources, such
as UN agencies, major nonpartisan humanitarian aid organizations such as Save
the Children, and mainstream news organizations including the New York Times
(NYT), the BBC, and Reuters.
The military campaign has “wreaked more destruction than the
razing of Syria’s Aleppo between 2012 and 2016, Ukraine’s Mariupol or,
proportionally, the Allied bombing of Germany in World War II,” the report
quoted researchers as saying. The researchers, hardly some raving left-wing
activists, are experts cited in one of the most respected news organizations in
the world, the Associated Press (AP).
“As long as those who make rules enforce them against others while believing that they and their allies are above those rules, the international governance system is in trouble”
Nor did
South Africa seek to elide or obfuscate the atrocity
of Hamas’ attack on Israel or the ongoing threat to Israel: In fact, the South
African document explicitly condemns the
October 7 attack and notes the ongoing
rocket attacks from Gaza and Lebanon.
It goes on to quote statements from top Israeli officials,
including President Isaac Herzog, stating that “it is an entire nation out
there that is responsible,” making no distinction between civilians and Hamas
fighters. Israel’s minister of defense, in the days after the attack, called
for a “complete siege,” adding “There will be no electricity, no food, no
water, no fuel, everything is closed.” He said that in fighting Hamas the
country faced “human animals and we are acting accordingly.” A politician tweeted
that the objective was “erasing the Gaza Strip from the face of the earth.” The
minister of agriculture said Israel was “now rolling out the Gaza
nakba.”
These are serious charges that will take years to
investigate and untangle. The bar to proving that the Israeli government has
engaged in genocide is very high, and appropriately so. It is the most heinous
crime a nation can commit, and there is special resonance, given that the term
“genocide” was coined by legal scholar Raphael Lemkin, a Polish Jew, during the
Holocaust to give a legal definition to the slaughter and ensure it never
happened again.
Israel mounted a vigorous and detailed defense, arguing that
the statements South Africa cited were not official government policy in
prosecuting the war. Hamas has explicitly and repeatedly stated it seeks to
eradicate the state of Israel. Israel argues that Hamas is the force that would
commit genocide if given the chance and that the country’s military campaign in
Gaza against Hamas is one of self-defense. The
court did not order Israel to stop fighting in Gaza, presumably indicating that its battle there is legal and
legitimate in principle.
All of which is to say, this is exactly the kind of dispute
the International Court of Justice (ICJ) was created to address.
How powerful is the ICJ, really?
The ICJ is not some kangaroo court. It was established after
the atrocities of World War II. It is made up of eminent jurists from countries
across the globe, who are voted to nine-year terms by the General Assembly and
the Security Council. By almost unbroken tradition, permanent members of the
Security Council are always represented on the court, and the court is
customarily balanced among continents. Its rulings are final, but it has no
real mechanism to enforce them unless the Security Council chooses to press the
issue, which is unlikely in this case, given the US veto power. The ICJ issued
a nonbinding opinion in 2004 that the security barriers Israel was erecting in
the West Bank violated international law, but that ruling has had no effect.
The walls still stand.
But despite the ICJ’s lack of enforcement mechanisms, this
case matters a great deal because it speaks directly to the blunt challenges
facing the US-led global rules-based order that has endured, with some bumps
along the way, since the end of World War II. The countries that defined the
terms of that grand bargain, namely the rich, Western nations of the global
north, are declining on multiple fronts as China’s global ambitions grow,
Russia under Putin menaces Europe and liberal democracy is in retreat in many
parts of the globe as governments in strategically vital emerging powers like
Turkey and India tilt toward autocracy. All the warning lights are blinking as
we risk tumbling headlong into a new era of might-makes-right realpolitik in
which anything goes, international laws and norms be damned.
Indeed, what is a rules-based system if the rules apply only
selectively and if seeking to apply them to certain countries is viewed as
self-evidently prejudiced? To put it more simply, is there no venue in the
international system to which stateless Palestinians and their allies and
friends can go to seek redress amid the slaughter in Gaza? And if not, what are
they to do?
“The ICJ issued a nonbinding opinion in 2004 that the security barriers Israel was erecting in the West Bank violated international law, but that ruling has had no effect. The walls still stand.”
For the cause of Palestinian statehood, every alternative to
violence has been virtually snuffed out, in part because Israel’s allies have
helped to discredit them. The most recent example is the Boycott, Divestment,
and Sanctions (BDS) movement that has, in many places, been successfully tarred
as anti-Semitic or even banned altogether. Efforts to use the Security Council
have drawn US vetoes for decades. Is seeking redress at the appropriate venue
for alleged violations of international law also anti-Semitic, as Israel’s
defense minister said Friday? Does no law apply to Israel? Are there no limits
to what it may do to defend itself?
The US’ blind eye
The Biden administration has made the shoring up of the
international rules-based order a centerpiece of its foreign policy but,
unsurprisingly, has struggled to live up to that aspiration. Fair enough: A
little bit of hypocrisy is the inevitable lubricant for the grinding of the
gears of history. Only small children expect the hobgoblin of total
consistency, and even they eventually grow out of it when confronted with the
hard choices life imposes on us all.
Occasionally straying from your principles because
circumstances require it is very different from being seen to have no
principles at all, and that is precisely how much of the global south has come
to regard the US.
It seems especially shortsighted in these times that the
Biden administration elected to wave away the carefully documented case
prepared by South Africa. One of the biggest threats to the rules-based
international order is the growing consensus in the poor world that the rich
world will apply those rules selectively, at its discretion, when it suits the
powerful nations that make up the global north, such as when Russia invaded
Ukraine.
“The kind of equivocation that we have been seeing about
Gaza, the minimization of the scale of the humanitarian crisis, but also the
cowardice in failing to call out the Israeli government for how it is
conducting itself, has sapped the US of moral authority in the eyes of many
people across the globe,” said Dan Mafora, a legal scholar in South Africa.
Hamas, of course, in this instance struck first, on October
7. But two can play the game of who started it and who is to blame, rolling
back the clock to biblical times to try to fix the ultimate responsibility for
the catastrophe of Israel and Palestine. No history lesson will salve the
present agony.
As far as the rules-based order is concerned, when it comes
to crimes like genocide and ethnic cleansing, it simply does not matter who
started it. Israel’s actions can no longer be justified. The best way to shore
up the rules-based order is to be seen, in word and deed, as committing to the
institutions and moral commitments of that order.
Germany, the UK, and the US do not need to affirm the
charges from South Africa; they could indeed reject them while still giving
credence to the process underway in The Hague as a legitimate and worthwhile
exercise of oversight by a credible body charged with adjudicating exactly this
kind of claim. After strong dismissals by top officials to the initial charges,
the Biden administration had a more muted response to the court’s ruling on
Friday, saying via a spokesperson that the US recognizes the court’s “vital
role” and noting that the US has strongly urged Israel to take many of the
steps the court ordered to protect civilians.
To my mind, the case is most important as a powerful
reminder that any Palestinian state would be bound by the same rules and
subject to the same kind of proceedings. Benjamin Netanyahu and his right-wing
allies have reiterated their adamant opposition to a Palestinian state. The US
has urged the creation of such a state as the foundation for peace in the
region. In this, the Biden administration is absolutely correct. The only path
out of this tragedy is bringing the Palestinian people into the family of self-governing
nations that live, imperfectly, under the rules that have kept an uneasy but
durable peace for generations.
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