The West will Stand in the Dock Alongside Israel at the Genocide Court
Israel’s allies aren’t just turning a blind eye to Gaza’s killing fields. They have cheered on the bloodshed, provided diplomatic cover and supplied the arms
Israel is urging western states to rally to its side as the International Court of Justice prepares to hear this week South Africa’s case that Israel is committing genocide in Gaza.
The court is being asked by Pretoria to issue an immediate injunction ordering Israel to halt its military assault on the tiny enclave, to avoid further casualties.
Some 23,000 Palestinians are known to have been killed by Israel so far, a majority of them women and children, and many thousands more are believed to be lying under the rubble. Tens of thousands are seriously wounded. A majority of the population have lost their homes to the three-month bombing campaign.
Israel has intensively and repeatedly targeted the supposedly “safe zones” to which it has ordered Palestinian civilians to flee.
It has destroyed almost all of Gaza’s infrastructure and is blocking most aid from reaching the enclave. Famine and disease are likely to rapidly increase the death toll.
South Africa’s 84-page brief argues that Israel’s bombing campaign and siege breaches the 1948 Genocide Convention, which defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
Israel expects support from western capitals because they have nearly as much to fear from a verdict against Israel as Israel itself. They have staunchly backed the killing spree, with the US and UK, in particular, sending weapons that are being used against the people of Gaza, making both potentially complicit.
According to a cable from the Israeli foreign ministry, leaked to the Axios website, Israel hopes that, given the difficulties of making a legal case in defence of its actions, diplomatic and political pressure on the court’s justices will win the day instead.
The Biden administration led the way late last week in dismissing South Africa’s detailed legal brief as “meritless, counterproductive and completely without any basis in fact whatsoever”.
That would sound patently ridiculous to western audiences had they been provided with serious coverage of Gaza. But Israel has been heavily restricting access to the enclave, while killing Palestinian journalists there at an unprecedented rate to stop their reporting.
In addition, western media are willingly – and secretly – submitting to an onerous Israeli censorship regime.
Israel’s “strategic goal” at the court, according to the leaked cable, is to dissuade the judges from making a determination that it is committing genocide. But more pressing is Israel’s need to prevent the Hague court from ordering an interim halt to the attack.
Israeli officials will argue, Axios reports, that its sustained assault on Gaza fails to reach the threshold of genocide, which requires “creating conditions that don’t allow the survival of the population, together with the intent to annihilate it”.
Israel will try to convince the judges that it has been seeking to increase humanitarian aid to Gaza and minimise the toll on civilians.
Its argument flies in the face of the evidence South Africa has amassed.
Its brief contains nine pages of declarations by Israeli leaders showing clear genocidal intent, including statements from Prime Minister Benjamin Netanyahu, senior figures in the cabinet, President Isaac Herzog and many serving and former Israeli military commanders.
Giora Eiland, an adviser to war council minister, Benny Gantz, has called Israel’s goal the creation of “conditions where life in Gaza becomes unsustainable”. An Israeli military spokesman stated from the outset that the aim was to inflict “maximum damage” on Gaza.
Herzog suggests the entire civilian population is a legitimate military target, while Netanyahu refers to the Palestinians as “Amalek”, a biblical enemy. In the Old Testament, God commands the Israelites to annihilate the Amalekites, putting “to death men and women, children and infants”.
One of the provisions of the Genocide Convention is an absolute prohibition on incitement to genocide. Israel’s most senior politicians and military commanders have indisputably breached that section of the convention.
A letter to Israel’s attorney general last week from a group of Israeli academics, lawyers, human rights activists and journalists underscored that point. They warned that incitement to genocide had become “an everyday matter in Israel”.
The letter added: “Normalised discourse which calls for annihilation, erasure, devastation and the like is liable to impact the manner by which soldiers [in Gaza] conduct themselves.”
But dehumanisation – the precursor to genocide – is not the only problem.
Israel’s prosecution of what it terms a “war to eradicate Hamas” has fully met its own definition of genocide. “Conditions that don’t allow the survival of the population” were already being created long before the onslaught Israel unleashed immediately after Hamas broke out from Gaza on 7 October. Some 1,140 Israelis and other nationals were killed in the ensuing carnage.
Mostly forgotten in the back and forth about what is unfolding in the enclave is the context: United Nations officials warned nearly a decade ago that Israel’s siege of Gaza – now 17 years in duration – was designed to make the enclave “uninhabitable”.
In other words, Israel was precisely “creating conditions that don’t allow the survival of the population”.
Even before its current, extended assault, Israel had placed severe restrictions on access to water for the enclave’s 2.3 million inhabitants. As a direct result, overstretched aquifers under Gaza were allowing in seawater, making the enclave’s drinking water unfit for human consumption.
Food was similarly in short supply. Back in 2012, Israeli human rights groups managed to make public a secret document showing that the army had been tightly controlling food going into Gaza from 2008 onwards. As a result, two-thirds of the population was food insecure, and every 10th child was stunted by malnutrition. The aim was to induce long-term food poverty, effectively putting the population on a starvation diet.
Israel’s repeated attacks on Gaza over the past 15 years – what Israel calls “mowing the grass” – destroyed many of its homes and much of the infrastructure, creating ever greater overcrowding and unsanitary conditions.
Israel’s repeated bombing of Gaza’s only power station, and its chokehold on supplying additional energy, limited electricity to a few hours a day.
The Israeli siege blocked medicines and medical equipment from entering the enclave, often making serious health conditions difficult or impossible to treat. And given the Israeli-imposed restrictions of goods in and out of Gaza, the economy was already in ruins, with nearly half the population unemployed.
Long ago, back in 2016, the head of Israeli military intelligence, Herzi Halevi, warned that the catastrophe Israel was engineering in Gaza could blow up in its face – as indeed it did on 7 October.
Israel’s three-month rampage has simply accelerated and intensified all the genocidal policies that had long been established. Hamas’s break-out simply gave Israel licence to take the gloves off.
This is why the UN’s head of humanitarian affairs, Martin Griffiths, declared last week that Gaza had reached the point where it was indeed “uninhabitable”.
He added: “People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.”
With the vast majority of the population homeless and most hospitals no longer functioning, infectious disease was spreading.
Israel’s “complete siege” policy meant aid could not get in. According to Griffiths, Israel had destroyed roads, blocked communication systems, and was shooting at UN trucks and killing aid workers.
Returning from a visit to the border crossing with Egypt, two US senators observed at the weekend that Israel had imposed unreasonable conditions creating endless delays that prevented aid from reaching the people of Gaza.
In other words, Israel has now successfully “created conditions that don’t allow the survival of the population”.
The aim of the 1948 Genocide Convention, drafted in the immediate wake of the Second World War and the Nazi Holocaust, was not simply to punish those who carry out genocides.
It was designed to help identify a genocide in its early stages, and create a mechanism – through the rulings of the International Court of Justice – by which it could be halted.
In other words, the purpose of South Africa’s case is not to arbitrate what happens once Israel has annihilated the Palestinians of Gaza, as far too many observers appear to imagine. It is to stop Israel from annihilating the people of Gaza before it is too late.
Based on strange logic, Israel’s supporters imply that the genocide charge is unwarranted because the real aim is not to exterminate the Palestinians of Gaza but to induce them to flee.
Israeli leaders have encouraged this assumption. In an interview on Sunday, the national security minister, Itamar Ben-Gvir, noted of Gaza’s population that – after being bombed, made homeless, starved and left vulnerable to disease – “hundreds of thousands will leave now”. Duplicitiously, he termed this a “voluntary” mass emigration.
But such an outcome – itself a crime against humanity – entirely depends on Egypt opening its borders to allow Palestinians to flee the killing fields. If Cairo refuses to submit to Israel’s violent blackmail, it will be Israel’s bombs, the famine it inflicted, and the lethal diseases it unleashed that decimate Gaza’s population.
The International Court of Justice must not adopt a wait-and-see approach, pondering whether Israel’s bombing campaign and siege lead to extermination or “only” ethnic cleansing. That would strip international humanitarian law of all relevance.
If Israel and its western allies fail to bludgeon the court into submission, and South Africa’s case is accepted, it will not only be Israel in legal difficulties.
A genocide ruling from the court will impose obligations on other states: both to refuse to assist in Israel’s genocide, such as by providing arms and diplomatic cover, and to sanction Israel should it fail to comply.
An interim order halting Israel’s attack will serve as a line in the sand. Once made, any state that fails to act on the injunction risks becoming complicit in genocide.
That will put the West in a serious legal bind. After all, it has not just been turning a blind eye to the genocide in Gaza; it has been actively cheering it on and colluding in it.
Leaders in the UK such as Prime Minister Rishi Sunak and opposition leader Keir Starmer have steadfastly opposed a ceasefire and thrown their weight behind a central pillar of Israel’s genocidal policy: the “complete siege” of Gaza that has left the population starving and facing lethal epidemics.
The British and US governments have rejected all calls to stop the flow of arms. The Biden administration has even bypassed Congress to speed up the supply of weapons to Israel, including indiscriminate “dumb” bombs that are laying waste to civilian areas.
Israel’s ambassador to the UK, Tzipi Hotovely, has regularly been featured by British media making genocidal statements. Just last week, when an interviewer noted that she appeared to be calling for the destruction of the whole of Gaza – every school, mosque and home – she answered: “Do you have another solution?”
British and US media have given airtime to Israeli officials who openly incite genocide.
All that would have to stop immediately after a ruling. The police in western nations would be expected to investigate and the courts prosecute those inciting genocide or providing a platform for incitement.
States would be expected to deny Israel weapons and impose economic sanctions on Israel – as well as on any states that collude in the genocide.
Israeli officials would risk arrest for travelling to western countries.
In practice, of course, none of that is likely to happen. Israel is far too important to the West – as a projection of its power into the oil-rich Middle East – to be sacrificed.
Any effort to enforce a genocide ruling through the UN Security Council will be blocked by the Biden administration.
Meanwhile, the UK, along with Canada, Germany, Denmark, France and the Netherlands, have already demonstrated how unabashed they are about their own double standards.
Weeks ago they submitted formal arguments to the International Court of Justice that Myanmar was committing genocide against the Rohingya ethnic group. Their central argument was that the Rohingya were being subjected “to a subsistence diet, systematic expulsion from homes, and the induction of essential medical services below minimum requirement”.
But none of these western states is backing South Africa’s genocide submission to the same court – even though conditions in Gaza engineered by Israel are even worse.
The truth is that a genocide ruling by the court will open up a can of worms for the West, and its readiness to accept that the provisions of international law apply to it too.
Israel has been at the forefront of efforts to unravel international law in Gaza for more than a decade. Now it is ostentatiously flaunting its perpetration of the crime of genocide, as if daring the world to stop it.
Perversely, it is reversing the very international safeguards put in place to stop a repeat of the Nazi Holocaust.
Will the West defy Israel or the court? The post-war consensus that serves as the foundation for international law – already shaken by the failure to address the West’s war crimes in Iraq and Afghanistan – is on the verge of complete collapse.
And no one will be happier with that outcome than the state of Israel.
• First published in Middle East Eye
Jonathan Cook, based in Nazareth, Israel is a winner of the Martha Gellhorn Special Prize for Journalism. His latest books are Israel and the Clash of Civilisations: Iraq, Iran and the Plan to Remake the Middle East (Pluto Press) and Disappearing Palestine: Israel's Experiments in Human Despair (Zed Books). Read other articles by Jonathan, or visit Jonathan's website.Neither Evidence nor Law will Convict Israel of Genocide
If the International Court of Justice, AKA the World Court, convicts Israel of genocide or enjoins it from committing acts that contribute to genocide, it will not be on the basis of evidence or law. There will be deliberation before the fifteen judges announce their decision, but it will have little to do with the reason South Africa is requesting a judgment.
The fifteen judges that will meet in the Hague are eminent jurists, but their role is political, not legal. They will vote the way their country tells them to vote, not upon conclusions drawn from the proceedings. They were selected by their respective countries on that basis, and elected by a majority vote of the UN General Assembly and Security Council.
That’s an odd combination. In the General Assembly, each member has one vote, and in the Security Council, each member also gets one vote. But since all the countries on the Security Council are already represented in the General Assembly, when they vote for judges in the ICJ, they get two votes. And since five members of the SC are permanent, they permanently have two votes.
In addition, the absolute majority requirement means that only the most powerful and influential nations can cajole, influence, threaten or bribe enough votes to meet the requirement. Generally speaking, this means that the US can command enough votes in the court to control most of the decisions of consequence. The haggling is almost certainly taking place right now, before the court has even heard the case.
Of course, the US doesn’t control every vote. The judges from China, Russia, Slovakia, Lebanon, Somalia and Morocco, for example, are unlikely to take orders from the US on this issue. But neither are they likely to vote on the basis of law or evidence. They will vote according to what they believe to be in their country’s interest. If it happens to accord with the evidence, so much the better for justice. But, barring one or more renegade votes, justice will be coincidental.
Following is an analysis of the probable votes of the judges, based in part on the opinion of Norman Finkelstein as well as views expressed directly by government figures in the countries that nominated the judges.
Judge Joan E. Donoghue of the United States: A no-vote is almost certain to come from Donoghue, given the United States’ long and unwavering support for Israel’s actions. United States officials blame the large numbers of civilian casualties on Hamas’s supposed usage of civilians as “human shields” and have adamantly denied that Israel’s actions constitute genocide.
Judge Kirill Gevorgian of the Russian Federation: While the Russian government has shown sympathy for the Palestinian cause and spoken against excessive civilian casualties, they may be wary of the potential consequences of such a landmark genocide ruling that could be used against them in the future regarding their military actions in Ukraine. Even so, showing support for the Palestinian people and taking a stand against America and its allies could be advantageous to Russia’s image. For this reason, a yes vote from Russia is possible but uncertain.
Judge Peter Tomka of Slovakia: Slovakia has enjoyed friendly relations with Israel and has refrained from criticism of Israel’s actions in Gaza. However, Slovakia has voiced concern over illegal Israeli settlements in the West Bank and supports a two-state solution. Slovakia abstained in a recent UN General Assembly vote calling for a ceasefire in Gaza. For this reason, it is difficult to predict how the Slovakian judge may vote, but constituting Israel’s actions as a genocide would be a leap in Slovakia’s foreign policy regarding the matter. Therefore, such a ruling appears more unlikely than likely to come from Judge Tomka.
Judge Ronny Abraham of France: France has remained a strong supporter of Israel and its policies throughout the years, and the two enjoy a friendly and cooperative relationship. However, French President Emmanuel Macron has harshly criticized Israel’s recent military actions in Gaza, saying there is “no justification” for the bombing campaign and urged Israel to cease its hostilities. The ruling from Judge Abraham could go either way, with significant evidence backing either possibility.
Judge Mohammed Bennouna of Morocco: The Moroccan population has shown unwavering support for the Palestinian cause, with tens of thousands of Moroccans marching in the streets to protest Israel’s bombardment of Gaza. Although Morocco’s government adopted a policy of normalizing ties with Israel in return for recognition of Morocco’s sovereignty over the disputed territory of Western Sahara, Moroccan authorities continue to voice support for Palestine’s struggle for human rights and statehood. Hence, a yes vote is highly likely to come from Mohammed Bennouna, and the alternative would cause widespread anger and discontent among Morocco’s population.
Judge Abdulqawi Ahmed Yusuf of Somalia: The nation of Somalia unwavering supports the Palestinian cause and the liberation of its people. Somalis took to the streets to stand with Gaza and protest Israel’s bombardment of the strip. Somali Prime Minister Hamza Abdi Barre condemned international silence on the Israeli occupation and praised Hamas for fighting for liberation. A yes vote is highly likely to come from Judge Yusuf.
Judge Xue Hanqin of China: The Chinese government has been a strong critic of Israel’s actions in Gaza and supports an independent Palestinian state with East Jerusalem as its capital. However, China may be hesitant to set a precedent regarding violations of the Genocide Convention for similar reasons as Russia. Some accuse China of committing genocide against the Uyghurs, a Muslim minority in China. For this reason, a yes vote from China is possible but not assured.
Judge Julia Sebutinde of Uganda: Uganda’s position regarding the situation in Palestine is nuanced and not apparent. Uganda has tentatively friendly relations with Israel and supports a two-state solution. However, during a visit to Uganda from Israeli Prime Minister Benjamin Netanyahu, Ugandan President Yoweri Museveni repeatedly referred to the land as Palestine, including describing relations between “Palestine and Africa.” Uganda’s Minister of State for International Affairs confirmed that Uganda supports Palestine and its right to an independent State. Uganda’s votes in the UN General Assembly regarding conflicts in Palestine have been inconsistent, with the Ugandan representative voting no on resolutions critical of Israel in several cases. However, Uganda recently voted for a resolution calling for a ceasefire of hostilities in Gaza. Judge Sebutinde’s ruling is somewhat unpredictable, but either decision is possible.
Judge Dalveer Bhandari of India: While in the past India has shown support for the Palestinian cause, the modern Hindu-majority government has shifted India to a nation described as pro-Israel. India views Israel’s actions in Gaza as a “counterterrorism operation” but called for international humanitarian law to be maintained in the strip. India was one of the first to condemn Hamas’s October 7th attack on Israel and banned protests in support of Palestine. Therefore, a no-vote is a probable ruling to come from India.
Judge Patrick Lipton Robinson of Jamaica: Jamaica’s history of oppression at the hands of the British has caused them to be a defender of resistance against unjust governments. They were the first nation to issue sanctions against the apartheid state of South Africa, paving the way for others to follow suit. However, the Jamaican government’s silence on Israel’s bombardment of Gaza has drawn criticism from the Jamaican population, who generally support the Palestinian cause. A yes vote from Jamaica would answer calls to take a clear stance on the conflict, and for that reason, it is the more likely possibility.
Judge Nawaf Salam of Lebanon: A yes vote is almost certain to come from the Lebanese Judge, as the struggle of the Palestinians is historically intertwined with Lebanon’s struggle against Israel. The Lebanese population staunchly supports the Palestinian cause and views Israel as an occupying and oppressive state. The Lebanese militia Hezbollah has led successful military campaigns against Israeli forces in the past and is currently shelling the northern areas of the territory that Israel controls. Over 270,000 Palestinian refugees reside in Lebanon, and scores took to the streets to protest Israel’s actions in Gaza. Lebanon and Israel have no official diplomatic relations.
Judge Iwasawa Yuji of Japan: Japan advocates for a two-state solution and maintains a hesitant and tentative foreign policy approach regarding the conflict. Japan unequivocally condemned Hamas’s October 7th attack and voiced support for a cessation of hostilities. Japan is a strong Asian ally of the United States and Western European states, and Japan’s foreign policy often aligns with the positions of those states. Hence, constituting Israel’s actions as genocide would be a large leap from the country’s current position, and a no-vote would be most probable.
Judge Georg Nolte of Germany: Germany has been a strong supporter of the Israeli government and its actions, and the two maintain a “special relationship” based on Western values and historical perspectives. Some analysts suggest Germany’s unwavering support of the Jewish state is an attempt to make amends for the atrocities committed against the Jewish population by the Nazis during WWII. Following October 7th, German Chancellor Olaf Sholz offered military aid to Israel and dismissed calls for a ceasefire. Germany also banned demonstrations in support of Palestine. As such, a no vote is highly likely to come from Judge Nolte.
Judge Hilary Charlesworth of Australia: Australia supports a two-state solution and often defends Israel’s policies and actions. Australia’s foreign policy is often reflected by its strong relationships with Western states such as the United States. However, the Australian population is split in its stance on the conflict, and large demonstrations have taken place in support of Palestine. Still, a no vote is the most likely ruling to come from Judge Charlesworth.
Judge Leonardo Nemer Caldeira Brant of Brazil: Brazil strongly supports a Palestinian state according to its 1967 borders (including the West Bank and Gaza), and the Brazilian population is split in its support for either side. President Lula has attempted to walk the diplomatic line between either side, emphasizing the need for de-escalation. The potential for a cessation of hostilities in the event of a conviction of Israel violating its obligations may sway the Brazilian judge to rule accordingly. Therefore, a yes vote is a more likely possibility.
Considerations:
Each of the judges on the court has highly esteemed experiences, academics, and careers, and their knowledge and insights should not be ruled out in predicting their decisions. They do not officially represent their nation and are required to be uninfluenced by politics and policies. However, powerful nations have ways of “persuading” weaker nations and individuals to vote as directed. It is therefore unlikely that evidence and law will be more than window dressing in the outcome of the case against Israel.
Paul Larudee is a retired academic and current administrator of a nonprofit human rights and humanitarian aid organization. Calvin Larudee, Paul's grandson, is a high school student in Castro Valley, California. He provides international weekly news summaries and analysis at International Informants, to which subscribers are welcome. Read other articles by Paul Larudee and Calvin Larudee.
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