In December, after two months of Israel’s brutal military operations in Gaza, South Africa took the extraordinary decision to accuse Israel before the International Court of Justice (ICJ) of violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. In its application to the ICJ, South Africa contended that:
the acts and omissions by Israel … are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip.
In an interim ruling released on 26 January, the ICJ instructed Israel to follow a number of provisional measures to protect the rights of the residents of Gaza under the Genocide Convention, but stopped short of ordering that Israel suspend its military operation, as South Africa had requested. Understandably, in Gaza initial optimism that international law would make difference was dashed by the failure of the Court to order a ceasefire and the continuation of Israel’s attacks. The reaction of Fahmi Al-Rubai, a 32-year-old Gazan, makes precisely this point:
We were hoping that the Court’s decision would lead to some pressure on Israel to stop the war, but a few days after the preliminary ruling, on [29 January], we awoke to intense gunfire in our area … I don’t know who can help us … I don’t know who can stop the war. If the ICJ fails, we have no one but God.
Forsaken by world powers, Palestinians, like Al-Rubai, put their hope in the ICJ as a last resort against an incursion that had already wrought vast physical, social, and political death. The ICJ’s decision dampened this hope. Since then, as the anthropologist Lori Allen notes, “the debate over international law has become more polarized, even among those who would fall together within ‘the Palestinian side’.”
On 2 February, Palestinian political scientist Saleh Abd al-Jawad published a critical article in Arabic titled “ICJ: A Witness Who Seems Not to Have Seen Anything”. It recounts the litany of visual and physical evidence of Israel’s war crimes in Gaza and laments the ICJ’s reluctance to call explicitly for a ceasefire. For Abd al-Jawad, this shortcoming was a wilful act of blindness. Perhaps the young Gazan photojournalist Motaz Azaiza, who risked his life numerous times so that the world could see the horrifying consequences of the Israeli military actions in Gaza, was within his rights to say, “f**k the ICJ”. Such outrage stems from the fact that, despite extensive evidence of war crimes being committed by Israel in Gaza and genocidal statements by Israel’s political leaders — which confirmed the plausibility of the charge of genocide — the Court decided not to order the one thing that was so clearly necessary to protect Palestinian lives and rights.
On 16 February 2024, in response to a request by South Africa for additional provisional measures in relation to the Israeli plans to attack Rafah, the ICJ reiterated that Israel must comply with its 26 January orders, but did not order it to suspend its military operations. Even some of those who welcomed the ICJ’s interim ruling on 26 January, like the United States-based Palestinian international legal scholar Noura Erakat, saw this recent decision as “profoundly disappointing”.
Fahmi Al-Rubai’s statement about the Court as the penultimate resort before God tells us much about the stakes and the weight of its decision. The ICJ was asked to fulfil the secular role of the almighty — to place pressure on Israel to stop the war. Enmeshed in earthly realities, however, it was unable to deliver its quasi-divine promise as the highest seat of justice on earth. This inability has to do with the structure of international law itself, with Israel’s claims to embody the rights and obligations of the Genocide Convention, and with the United States professing to safeguard the law even as it shields Israel from accountability. In this legal, moral, and political structure, Palestinians occupy a liminal space as “subjects who are never included within the power to which they are subjected”.
International law and its institutions often avoid making hard choices by “deferring substantive resolution elsewhere”. The provisional measures imposed by the ICJ on Israel — among which was to allow the entry of humanitarian aid, and to report back at the end of February — effectively gave both the ICJ and the international community a month of reprieve.
Deferment, according to legal theorist Martti Koskenniemi, is linked to the politics of international law. This politics, he argues, is propped up by two crutches:
Leaning too much on normativity renders the law utopian and irrelevant; too much on concreteness makes the law indistinguishable from state practice and reduces it to an “apology for existing power”. Put simply, international law has at once to occupy the high moral ground to maintain its identity, and consent to state practices to secure its viability.
In its failure to make full use of its constraining force by calling for a ceasefire and not accepting the validity and the legitimacy of Israel’s actions, the ICJ reproduced the balance between normativity and concreteness that has traditionally sustained it. For the likes of Abd al-Jawad, Al-Rubai, and Azaiza, this was not enough. But for Israel, it was already too much. So Israeli Prime Minister Benjamin Netanyahu said “the charge of genocide levelled against Israel is not only false, it’s outrageous, and decent people everywhere should reject”, and Israel’s President, Isaac Herzog, called the case a form of antisemitic “blood libel”.
Koskenniemi’s account of international law shows the tense but durable coexistence of the two imperatives that sustain and regulate its determinations. But this tense arrangement struggles to stand when it comes to Palestine and Israel.
Palestinians, as stateless occupied people in need of urgent protection, have no recourse except to the constraining force of the law — that is, to international law’s normativity. Israel, on the other hand, claims that when it comes to crimes against humanity — particularly genocide — the State of Israel is itself an embodiment of the normativity of the law. It claims that it shares with the Genocide Convention not only a year of birth (1948) but also the pledge “never again” as their common reason for existence. From this perspective, the Convention, like Israel itself, is a vigilant reminder in the present of the crimes of the past. Accordingly, Israel — as a state and an ideal — is the concrete and normative instantiation of the pledge of the Genocide Convention.
At the ICJ hearing, Tal Becker, legal advisor to Israel’s Ministry of Foreign Affairs, made this link explicitly when he said that “never again” is “the highest moral obligation” of his state. For Becker Israel’s actions under all circumstances should be seen as the emanation of its obligations. Israel’s long time defender, Alan Dershowitz, was more scathing and specific when he claimed:
Accusing Israel of genocide is a form of Holocaust denial … If Israel were to be found guilty of genocide, the very meaning of that horrible crime would be diluted beyond recognition.
At the ICJ, Israel’s investment in maintaining its identification with the Genocide Convention was expressed not only in its legal and factual rebuttal of the South African case, but also in the appointment of Justice Aharon Barak as Israel’s ad hoc Judge. Barak, a liberal former president of the Israeli Supreme Court, is loathed by the Netanyahu government. However, even for Netanyahu, the old judge embodies Israel’s inherent connection to the Genocide Convention. In his separate opinion — titled “Genocide: An Autobiographical Remark” — Barak informs the Court that he himself survived the horror of the Nazi genocide as a five-year-old boy. In the remark he reminds his audience of the specific Jewish lineage of, and by extension the Israeli connection to, the Convention:
The term “genocide” was coined in 1942 by a Jewish lawyer from Poland, Raphael Lemkin, and the impetus for the adoption of the Genocide Convention came from the carefully planned and deliberate murder of six million Jews during the Holocaust.
Through these autobiographical remarks, Barak positioned Israel as the rightful custodian of the Convention’s rights and obligations. Although Barak supported some of the ICJ’s provisional measures, he stressed that he found the allegation of genocide implausible and that the Court’s orders “merely restate obligations that Israel already has under Articles I and II of the Genocide Convention”. He explained that he supported the Court’s order that Israel allow humanitarian assistance into Gaza to remind Israel of the “essential obligations that are already in the present in the DNA of the Israeli military”. As an exhibit at the Court, Barak’s autobiography qua Israel’s biography appears to categorically rule out the plausibility of South African accusations of genocide.
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Your information is being handled in accordance with the ABC Privacy Collection Statement.Aharon Barak’s remarks were intended to remind the Court of the historical origins of the Genocide Convention which consign the paradigmatic crime of genocide to a type of state (Nazi Germany), episode (the Holocaust), and group (the Jews). As the historian A. Dirk Moses puts it, since the mid-twentieth century, genocide was defined in ways that depoliticised and circumscribed it “so it would resemble the Holocaust-as-massive-hate-crime as closely as possible”. Along similar lines, the United States, in the wake of the Second World War, fashioned itself as existing in an altogether different category from the past which the Genocide Convention denounces. American wars, as extensions of US foreign policy, were thus portrayed as defensive and preventative ways to guard against a repetition of past evil.
Like Israel, the United States purports to be above the tension between moral ideals and state practice that Koskenniemi identified — as if to say that, when it comes to the crime of genocide, American ideals and practices coincide. Accordingly, the protection and security of Israel have become the principal measure of American transcendence of the past. In keeping with this contention, the United States has supported Israel to the hilt and from the outset deemed the South African case against Israel as “meritless, counterproductive, and completely without any basis in fact whatsoever”.
From this perspective, it appears that under the Genocide Convention the State of Israel can only stand as a plaintiff and not a defendant, and the United States as a guardian rather than co-defendant. Against the evil of the past, on this account, Israel and the United States stand together as the very opposite of genocide.
The late Edward Said observed that Palestine has for decades sat “uncomfortably, indeed scandalously, close to the Jewish experience of genocide”. The structure of imagination and power that foregrounded the Nazi genocide as a measure of transcending the evil of the past posited Palestinians, as opponents of the Jewish State, as the opposite of the opposite of genocide. Indeed, Netanyahu was accused by historians of trivialising the Holocaust when he tried to make this connection explicit by claiming in 2015 that the Holocaust itself was inspired by the grand mufti of Jerusalem. Before the ICJ, Israel sought to perpetuate this allotment of positions and division of roles. So Tal Becker stated, “if there were acts of genocide, they have been perpetrated against Israel”.
As the war on Gaza unfolds, however, the name “Palestine” has come to be associated in the public imagination — particularly in the Global South — with genocide. The positions and roles that Becker sought to maintain are unravelling. Israel is no longer the categorical opposite of genocide. Gazan Palestinians, on the other hand, gained the undesired and unfortunate standing as the pariahs of a world order dominated by the United States.
Increasingly, the biographical immunity that Israel seeks, and the United States endorses, is seen by millions of people around the world as a claim of utter impunity. In this context, as anthropologist and lawyer Darryl Li puts it, “South Africa’s willingness to file the case is a sign that the old tactics used to police discourse about genocide have lost much of their power”.
In his article, Abd Al-Jawad makes clear that he is not interested in making easy comparisons or displacing other experiences. Human history is littered with atrocities larger in scale than that in Gaza. However, for him, the genocide he believes is being carried out by Israel is so horrific because:
it is the first massacre in history that was carried out for nearly four months, day after day, around the clock, hour, minute and second, in a broadcast, live stream of soaked blood on unprecedented scale. And it is the most horrific because the perpetrator did not hide his intention to exterminate.
The visibility and the public culpability that has made the world complicit in what many deem to be Israel’s war crimes mark new thresholds in the history of genocide. Israel’s actions and Western complacency created a new model of being forsaken in the modern world. In Abd Al-Jawad’s estimation, Israel visibly and publicly crossed the thresholds that amount to committing genocide. For him the ICJ decision without a ceasefire failed to recognise the transgressive qualities of Israel’s actions. The actions of the State of Israel have left no room for juggling concreteness and normativity. For him, applying the full constraining force of the law was the only adequate option.
Still Abd al-Jawad saw a glimpse of hope not strictly in international law itself, but rather in the case for solidarity and truth that South Africa made. The credibility of the South African case formed a counterweight to the universality and applicability of the liberal ideal that the United States and its Western allies mobilise. As Darryl Li claims: “For some Western liberals, South Africa’s moral credibility as a symbol of multiracial reconciliation adds even more gravity to the charge of genocide.”
As a result, Palestine is no longer sitting “uncomfortably [and] scandalously … close to the Jewish experience of genocide”. After Gaza, to echo the late Palestinian poet Mahmoud Darwish, Palestinians can say to Israel in the presence of their sisters and brothers in the world:
You stole our tears, wolf … You kill me, enter my corpse, and sell it …
Come out a little of my blood so that the night can see you darker …
And come out so that you and I can walk to the negotiation table, clear as the truth …
A murderer brandishing a knife …
And murdered reciting their names.
Ihab Shalbak is a lecturer in human rights and social justice at the University of Sydney.
Posted 19 Feb 2024 19 Feb 2024 Mon 19 Feb 2024 at 5:22am , updated 19 Feb 2024 19 Feb 2024 Mon 19 Feb 2024 at 6:13am
