The ICJ’s Provisional Orders: The Genocide Convention Applies to Gaza
On January 26, legal experts, policy wonks, activists and the plain curious waited for the order of the International Court of Justice, sitting in The Hague. The topic was that gravest of crimes, considered most reprehensible in the canon of international law: genocide. The main participants: the accused party, the State of Israel, and the accuser, the Republic of South Africa.
Filed on December 29 last year, the South African case focused on its obligations arising under the Convention on the Prevention and Punishment of the Crime of Genocide and those of Israel. Pretoria, in its case, wished that the ICJ adjudicate and declare that Israel had breached its obligations under the Convention, and “cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring out its physical destruction in whole or in part, and fully respect its obligations under the Genocide Convention”.
The latter words derive from Article II of the Convention, which stipulate four genocidal actions: the killing of the group’s members; the causing of serious bodily or mental harm to those group’s members; the deliberate infliction of conditions calculated to bring about the physical destruction, in whole or in part, of that group and imposing measures to prevent births within the group.
The sheer extent of devastation being wrought by Israeli Defence Forces in Gaza, justified by the Netanyahu government as necessary self-defence in the aftermath of the Hamas attacks of October 7, led the South African team to also seek immediate provisional measures under Article 41 of the Court’s statute. (The review on the case’s merits promises to take much longer.) They included the immediate suspension of the IDF’s military operations in and against Gaza, the taking of all reasonable measures to prevent genocide, and desisting from committing acts within Article II of the Convention. The expulsion and forced displacement of Palestinians should also stop, likewise the deprivation of adequate food, water and access to humanitarian assistance and medical supplies and “the destruction of Palestinian life in Gaza.”
By 15-2, the court accepted that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.” (Over 26,000 Palestinians have been killed, extensive tracts of land in Gaza pummelled into oblivion, and 85% of its 2.3 million residents expelled from their homes.) Measures were therefore required to prevent “real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.”
The grant of provisional measures was, however, more conservative than that sought by Pretoria. Conspicuously missing was any explicit demand that Israel pause its military operations. That said, the judgment did little to afford Israel’s leaders and the IDF comfort from the obligatory reach of the Genocide Convention, an instrument they had argued was irrelevant and inapplicable to the conduct of “innovative” military operations.
To that end, Israel was obligated to take all possible measures to prevent the commission of acts under Article II of the Genocide Convention, including by its military; prevent and punish “the direct and public incitement to genocide” against the Palestinian populace in Gaza; permit basic services and humanitarian assistance to the Gaza Strip; ensure the preservation of, and prevent destruction of, evidence related to acts committed against Gaza’s Palestinians within Articles II and III of the Convention; and submit a report to the ICJ on how Israel was abiding by such provisional measures within one month.
As is very much the form, the justice from the country in the dock, in this case, Israel’s Aharon Barak, could see nothing inferentially genocidal in his country’s campaign. South Africa, he insisted, had intentionally ignored the role played by Hamas in its October 7 attacks, and “wrongly sought to impute the crime of Cain to Abel.”
Inevitably, the singular experience of the Holocaust survivor, the sui generis Jewish view of trauma, used as solid armour against any possibility that Israel might ever commit genocide, became a point of contention. Genocide “is the gravest possible accusation and is deeply intertwined with my personal life experience.” Israel had a firm commitment to the rule of law, and to accept that it was committing genocide “is very hard for me personally”. Tellingly, he suggested that Israel’s campaign in Gaza be examined, not from the viewpoint of the Genocide Convention but international humanitarian law.
With classic casuistry, Barak did vote for the measure requiring Israel to do everything “within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza strip”. But having identified nothing in the way of such intent, the issue became a moot one. With some relief, Barak could state that certain measures sought by South Africa, including an immediate suspension of military operations, were rejected by the ICJ, which preferred “a significantly narrower scope”.
From the other side of the legal aisle, the South African foreign minister, Naledi Pandor, wished that the ICJ had grasped the nettle to order a halt in military operations. But, with some deft reasoning, she was satisfied that the only way Israel could implement the provisional measures would be through a ceasefire. Much the same view was expressed by the Associated Press: “The court’s half-dozen orders will be difficult to achieve without some sort of cease-fire or pause in the fighting.” That logic is clear enough, but the actions, given the various statements from Prime Minister Benjamin Netanyahu and his officials alleging slander and a blood libel against their country, are unlikely to follow.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com. Read other articles by Binoy.
Watching the Watchdogs: Law, Propaganda, and the Media Walk into a Bar
Or what happens when legal proceedings at the ICJ expose Western media bias and Israeli state propaganda
This month, the world watched South Africa initiate International Court of Justice (ICJ) hearings on the genocidal acts Israel committed in Gaza. In a two-day session on January 11 and 12, the court heard the extensive evidence the South African legal team had gathered to support their case against Israel, and the rebuttal by the Israeli team.
The hearings were historic for two reasons. First, this was the first time that Israel’s decades-long aggression against the Palestinians was articulated in detail for the world to hear, without having to pass through the distorting lens of Western media or politicians. Second, this was the first time that Israel was substantively held to account in public under international law, without being shielded from such accountability by its Western backers, as it has been for the past century.
The unprecedented nature of the hearings drew international attention. The media around the world covered the proceedings extensively, often with live feeds of both presentations. But in the West, once again an anti-Palestinian media bias became apparent.
Channels like the BBC were accused of not fully showing the South African presentation, while broadcasting more of the Israeli one. American, Canadian and British newspapers were chastised for not featuring the ICJ case on their front pages.
The bias was clearest in the glaring parallels between the main points in Israel’s presentations to the court – which reflected the longstanding main themes of Israeli propaganda – and the reporting of Western mainstream media, with some exceptions. Indeed, Western coverage of the war has been skewed since day one.
The US progressive publication The Intercept did its own analysis of three leading US newspapers – the New York Times, the Washington Post, and the Los Angeles Times – and found that their reporting “heavily favoured Israel”. It said that they “disproportionately emphasized Israeli deaths in the conflict; used emotive language to describe the killings of Israelis, but not Palestinians; and offered lopsided coverage of antisemitic acts in the U.S., while largely ignoring anti-Muslim racism in the wake of October 7.”
According to the Intercept’s analysis, the word “slaughter” was used in reference to Israeli deaths vs Palestinian deaths in a ratio of 125 to 2; the word “massacre” in a ratio of 60 to 1. Anti-Semitism was mentioned 549 times, while Islamophobia just 79 times.
This anti-Palestinian bias in print media “tracks with a similar survey of US cable news that the authors conducted last month that found an even wider disparity,” it concluded.
Many other such studies and examples of Western media bias towards Israel are now available.
Tweeting the Intercept report, Francesca Albanese, the UN special rapporteur on the occupied Palestinian territories, asked a pertinent question: “After months of western media misrepresenting or not reporting the unfolding genocide in Gaza and all sort of int’l law violations against Palestinians: I have a question. Don’t journalists have codes of conducts and professional ethics to abide by and be held accountable to?”
To answer her question: They do, in principle. But in practice, journalists and their media managers and owners operate in the context of most Western media playing a central role in the continuing legacies of Western-Israeli settler-colonialism, apartheid, and genocide against the Palestinians.
Consequently, the majority of citizens and politicians are convinced that they must support Israeli policies, even if these include settler-colonial brutality and apartheid.
It is no surprise that American, and most other Western, public opinion in the last half-century or so heavily sided with Israel over the Palestinians – because citizens mainly heard Israeli perspectives that dominated the news media and the statements and policies of their governments.
Over the past three months, however, the war in Gaza has revealed just how much Israeli state propaganda shapes US policy and the media’s dominant narrative of events. As Norman Solomon, media critic and executive director of the Institute for Public Accuracy, put it in a January 18 Common Dreams article:
What is most profoundly important about the war in Gaza – what actually happens to people being terrorized, massacred, maimed, and traumatized – has remained close to invisible for the U.S. public … With enormous help from US media and political power structures, the ongoing mass murder – by any other name – has become normalized, mainly reduced to standard buzz phrases, weaselly diplomat-speak, and euphemistic rhetoric about the Gaza war. Which is exactly what the top leadership of Israel’s government wants.
This dual legacy of the US’s distorted reporting and dysfunctional state policies is no longer as potent as it used to be, as the global public reactions to the ICJ genocide hearing have shown.
The global protests in solidarity with Palestine revealed that Israel and its Western protectors and media parrots, who repeat largely discredited Israeli propaganda arguments, can no longer convince global audiences to the same extent they did in the past. This is due to Israel’s own brutal actions, but also the changed global information system.
The world now sees daily on social media and some alternative media Israel’s genocidal actions and apartheid policies. The ICJ presentations and thousands of associated articles, commentaries, webinars, public talks and other events across the world exposed these Israel-Palestine realities.
Changed information flows have caused serious concern in Washington, as well as Tel Aviv, because decent, justice-loving citizens reject the US’s fervent support for Israel’s military brutality – and many say they are likely to reject voting for “Genocide Joe” Biden in the presidential election this November. This is what happens when ordinary citizens see the full story of events in Palestine – for the first time in modern history.
A new US opinion poll confirms that likely voters are more inclined to vote for candidates who supported a ceasefire in Gaza, by a 2-to-1 margin (51-23 percent). Among young and non-white voters, who are crucial for a Democratic win, between 56 and 60 percent said they would back ceasefire supporters.
But the growing awareness of what is going on in Israel-Palestine has had an impact well beyond US politics. As South African journalist Tony Karon noted in an article in The Nation on January 11: “So Israel is waging a classic colonial war of pacification of a native population resisting colonization – at a moment when much of the global citizenry is producing the receipts of centuries of Western violence and enslavement, demanding justice and a reordering of global power relations. Standing up for Palestine has become shorthand for that global struggle to change how the world is ruled.”
Indeed, the intense global support for Palestine, which peaked during the ICJ hearing, represents the Global South challenging the political and economic hegemony of the North. People across the world are saying they support justice and will continue to resist Western colonial forces that have ravaged scores of societies for half a millennium.
First published at Al Jazeera which notes that the views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.
Rami G Khouri is a Distinguished Fellow at the American University of Beirut, and a journalist and book author with 50 years of experience covering the Middle East. Read other articles by Rami.The Reasonings by the 2 Dissenting Judges on the ICJ’s Genocide Case by South Africa against Israel
There were 17 judges ruling on this case, including one from South Africa and one from Israel. Both of those two judges were not regular members of the Court but were included only because this ‘International Court of Justice’ was treating this matter as-if not “justice” (in criminal law — which this case was supposed to be about) but instead equity (in civil law — which is irrelevant to this criminal case) were at-issue (and therefore needing to be ‘balanced’, instead of to be concerned only to determine in the case “the truth, the whole truth, and nothing but the truth” as being the SOLE basis for valid judgment on the matter.
Page 26 of the 29-page ruling has paragraph 85: “The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”
The 84-page South African document that had brought criminal charges against Israel, titled “Applications Instituting Proceedings,” said in the opening paragraph of its Introduction:
South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’),1 whether as a matter of law or morality. The acts and omissions by Israel complained of by South Africa 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 (‘Palestinians in Gaza’).
So: the 7 October 2023 Hamas attacks against Israelis was not an issue or topic in the case that South Africa had brought to the Court.
Nonetheless — and appealing to public sentiments instead of to the actual case that was supposed to be at hand — paragraph 85 of its decision on the case pandered by essentially accepting as true there what both South Africa and Israel agree upon — as-if it were even pertinent (relevant) to this case (which it is not). One isn’t supposed to bring up in a criminal trial — or any trial — a matter about which both the prosecution and the defense are in agreement. It distracts from the case-at-hand and can serve only to distort judgments.
So: right there, in the paragraph that comes immediately before the Court’s judgment in the case, which is paragraph 86, the Court makes clear that the decision isn’t entirely excluding pandering. That is pandering to Israel’s side of this dispute. But South Africa had already accepted that detail of Israel’s side. It was irrelevant and was brought up by the judges purely pandering to public opinion — in Israel’s favor. It had nothing to do with whether or not Israel is, in fact, genociding Gazans.
To what extent did the ruling pander, and was it fairly balanced in its (irrelevant but popular — among supporters of Israel) panderings?
The next paragraph (86) is the one that everybody talks about, and so it is merely linked-to here as being on pages 26-29 of the pdf if you want to read it.
As is indicated there, the two dissenting ‘Justices’ in the Court’s 6-part order to Israel were Julia Sebutinde (Uganda) and Aharon Barak (Israel), and Sebutinde dissented on all 6 whereas Barak dissented only on 3 out of those 6. In each of those two instances, the jurist summarized up-front in the decision what the supposed ‘reasoning’ for the dissent was. Here both of those two summaries are shown:
DISSENTING OPINION OF JUDGE SEBUTINDE
[T]he dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist — It is not a legal dispute susceptible of judicial settlement by the Court — Some of the preconditions for the indication of provisional measures have not been met — South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention — Similarly, since the acts allegedly committed by Israel were not accompanied by a genocidal intent, the Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention — The provisional measures indicated by the Court in this Order are not warranted.
SEPARATE OPINION OF JUDGE AD HOC BARAK
1. South Africa came to the Court seeking the immediate suspension of the military operations in the Gaza Strip. It has wrongly sought to impute the crime of Cain to Abel. The Court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention. The Court has reaffirmed Israel’s right to defend its citizens and emphasized the importance of providing humanitarian aid to the population of Gaza. The provisional measures indicated by the Court are thus of a significantly narrower scope than those requested by South Africa.
2. Notably, the Court has emphasized that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law”, which certainly includes Hamas.
Sebutinde was treating this matter as-if it were a civil trial over something such as whether an international contract had been fulfilled according to its terms by both sides, only one side, or no side. Is that type of reasoning appropriate in a case that had been brought by a third party against one party in a war against the other party in that war — specifically by South Africa against Israel as allegedly perpetrating genocide against (not “Palestinians” but instead) the residents in Gaza? If not, then Sebutinde is a dangerously unqualified person to be sitting on this Court. Furthermore: her factual allegations (such as “the acts allegedly committed by Israel were not accompanied by a genocidal intent”) are either demonstrably false or almost certainly false, such as by this evidence cited in South Africa’s case, which evidence she entirely ignored:
The Israeli Prime Minister also returned to the theme in his ‘Christmas message’, stating: “we’re facing monsters, monsters who murdered children in front of their parents … This is a battle not only of Israel against these barbarians, it’s a battle of civilization against barbarism”.445 On 28 October 2023, as Israeli forces prepared their land invasion of Gaza, the Prime Minister invoked the Biblical story of the total destruction of Amalek by the Israelites, stating: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember”.446 The Prime Minister referred again to Amalek in the letter sent on 3 November 2023 to Israeli soldiers and officers.447 The relevant biblical passage reads as follows: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxens and sheep, camels and asses”.448
— President of Israel: On 12 October 2023, President Isaac Herzog made clear that Israel was not distinguishing between militants and civilians in Gaza, stating in a press conference to foreign media — in relation Palestinians in Gaza, over one million of whom are children: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”449 On 15 October 2023, echoing the words of Prime Minister Netanyahu, the President told foreign media that “we will uproot evil so that there will be good for the entire region and the world.”450 The Israeli President is one of many Israelis to have handwritten ‘messages’ on bombs to be dropped on Gaza.451
— Israeli Minister of Defence: On 9 October 2023, Defence Minister Yoav Gallant in an Israeli Army ‘situation update’ advised that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.”452 He also informed troops on the Gaza border that he had released all the restraints”,453 stating in terms that “Gaza won’t return to what it was before. We will eliminate everything.”454 …:
— Israeli Minister for National Security: On 10 November 2023, Itamar Ben-Gvir clarified the government’s position in a televised address, stating: “[t]o be clear, when we say that Hamas should be destroyed, it also means … those who support … — they’re all terrorists, and they should also be destroyed.”456
— Israeli Minister of Energy and Infrastructure: ‘Tweeting’ on 13 October 2023, Israel Katz stated: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”457 On 12 October 2023, he ‘tweeted’: “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. … And no one will preach us morality.”458
— Israeli Minister of Finance: On 8 October 2023, Bezalel Smotrich stated at a meeting of the Israeli Cabinet that “[w]e need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”459
— Israeli Minister of Heritage: On 1 November 2023, Amichai Eliyahu posted on Facebook: “The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes … We must talk about the day after. In my mind, we will hand over lots to all those who fought for Gaza over the years and to those evicted from Gush Katif” [a former Israeli settlement].460 He later argued against humanitarian aid as “[w]e wouldn’t hand the Nazis humanitarian aid”, and “there is no such thing as uninvolved civilians in Gaza”.461 He also posited a nuclear attack on the Gaza Strip.462
— Israeli Minister of Agriculture: On 11 November 2023, Avi Dichter in a television interview recalled the Nakba of 1948, in which over 80 percent of the Palestinian population of the new Israeli State was forced from or fled their homes, stating that “[w]e are now actually rolling out the Gaza Nakba”.463 …
She ignored every one of those quotations — yet each one of them was core to South Africa’s case. It was core to the motivation for this genocide that is occurring in Gaza.
And the case isn’t merely about intention; it is very much also about what Israel is actually doing. For example: see this on that, which displays not the intent but instead the results of that genocidal intent.
Barak’s reasoning was different but almost as scandalously bad: blaming South Africa for having even brought the case. Furthermore: since this ‘judge’ in the trial was actually serving instead as a defense attorney for his country Israel, he can be expected to have been serving atrociously as a judge — the ICJ had brought in as judges both a South African and an Israeli jurist so as to get a ‘balanced’ instead of a fair verdict in it. They were, at least to a large extent, treating this criminal case as-if it were instead a civil one.
By contrast to Barack: Sebutinde, who is one of the 15 regular judges on that Court, is so scandalously inadequate that she ought to be fired post-haste. But clearly, the Court itself, from the top on down, simply cannot rationally be trusted. Its problems are deep and severe. The genocide case against Israel will drag on for years and yet even at its outset, South Africa had presented a more trustworthy verdict (its case) regarding Israel than the ICJ ever will be able to, unless the entire institution becomes radically changed so as to become decent.
Eric Zuesse is an investigative historian. His new book, America's Empire of Evil: Hitler’s Posthumous Victory, and Why the Social Sciences Need to Change, is about how America took over the world after World War II in order to enslave it to U.S.-and-allied billionaires. Their cartels extract the world’s wealth by control of not only their ‘news’ media but the social ‘sciences’ — duping the public. Read other articles by Eric.
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