On December 29, South Africa filed suit against Israel at the International Court of Justice. Here is a link to the suit. South Africa is invoking the Convention on the Prevention and Punishment of Genocide. I'm going to assemble some of my thoughts about it here.
Firstly, I don't think we should prejudge the case. To be clear, I absolutely think that what Israel is doing constitutes genocide. But, my faith in international institutions to do what's right is deeply shaken. And as I've learned more and more about the situation in Israel-Palestine and the compete and total lack of actual action from the International Criminal Court, I've learned to temper my expectations. In the end, these institutions are made up of people and are, at least in part, political institutions.
The president of the ICJ is an American lawyer and the second woman to hold this post. The Wikipedia page on her only mentions one case, where she was the lone dissenting vote siding with the UK over Mauritius. Technically, she didn't side with the UK, but rather she said that the ICJ should not have ruled at all. On the minus side, being the willing to be a dissenting voice in support of the colonizing nation makes me skeptical of how she'll treat this case - but on the plus side, the case did go forward and resolved in favour of Mauritius. For reference, the case was about the US military base at Diego Garcia - and seems to centre around the UK claiming that the islands of the Chagos Archipelago were uninhabited, before forcibly relocating some 2,000 people to make way for the naval base. IOW, your usual colonial bullshit where the big powers insist on being the good guys and spin fanciful lies to keep this belief viable. The ICJ ruling in this case was an "advisory opinion" and not binding, so the UK has thus far ignored it. As I said, the usual colonial bullshit.
Also, the final verdict on whether Israel is officially committing genocide isn't the important thing at the moment. It will be important in the future when we look back on the Gaza War as a historical event, but it won't affect what's currently happening - because the ruling is going to take time to get to. The Chagos Archipelago ruling was pretty fast - hearings began September 2018 and the court ruled in February 2019 - 5 months. On the other hand, hearings for Ukraine v Russia started on February 26, 2022 and there is no final ruling yet.
That said, there is a very important component of the suit that's relevant right now. South Africa is requesting provisional measures to protect the people of Gaza, including an immediate ceasefire. This case is not an "advisory" one, so any order from the ICJ on the provisional measures would be legally binding. In the Ukraine-Russia case, the decision on provisional measures was issued on March 16, 2022. 18 days after the first hearing. For Gaza, the hearings will begin on January 11, so it is theoretically possible for a ceasefire order to be issued this month.
Now, one might note that Israel has nothing but a burning sense of sheer contempt for international law, so "legally binding" in this case is meaningless. Perhaps this framing of Israel's attitude towards the UN and and the international system of order seems a bit harsh, but if we go by words of Israel's ambassador to the UN, who has accused the international body of being Hamas, I might be understating the animosity here. Or one can point to other "legally binding" decisions like UNSC 2334 which declared Israeli settlement activity in the West Bank illegal and which Israel is openly ignoring.
That's true. I've said it before - Israel is a rogue state. They do not consider themselves subject to international law. It's quite clear from their bombing of hospitals and the massive amount of destruction they have unleashed on Gaza's civilian infrastructure that they believe the rules of war do not apply to the IDF. "Legally binding" is meaningless with no means of enforcement. BUT - here's where things are different. This would be a ruling under the genocide conventions. And I'm not just noting this as quite obviously Israel would be particularly mindful of the genocide conventions (hopefully, any such ruling would make many more Israelis reconsider their positions on Palestine) - but because a genocide ruling would impact other countries.
The provisional measures do not require a finding of genocide to be implemented - that's the point of them. So that protective orders can be made while the case takes it time to be argued and decided. What they do require is three things - that the court finds that the case is appropriate (i.e. within the ICJ's mandate and that South Africa has standing to bring the suit), that there is a plausible case to be heard (i.e. that the allegations that Israel is committing genocide are credible), and that the provisional measures are required to protect Gaza from a real and imminent threat of irreparable harm.
The first and last items are pretty much given. On jurisdiction and standing - The Genocide Convention explicitly names the ICJ as having jurisdiction and also mandates that all signatories act to prevent it from happening. As for needing protection, clearly Gaza is at risk of (further) irreparable harm. Here's the Ukraine-Russia order, and here is paragraph 30:
In this regard, Ukraine contends that thousands of people have already been killed in the conflict and that, with every day that passes, more lives will be lost and probably at an accelerating rate. It argues that the refugee crisis is another example of irreparable harm, pointing to the uncertainty that these displaced individuals will ever be able to return to their homes and the lasting psychological trauma the conflict will cause them even if they are resettled. It emphasizes that the population is extremely vulnerable, with many lacking food, electricity and water; that the overall situation is extremely fragile; and that the risk of aggravation of the crisis is acute. Ukraine further asserts that the Russian Federation’s military action poses grave environmental risks, not only to Ukraine but also for the wider region, referring in particular to the dangers posed to Ukraine’s civil nuclear industry and toxic smoke released by attacks on fuel depots.
Maybe the last sentence isn't relevant as Gaza has no nuclear power plants, but the rest of it is at least as true, if not more so, for Palestinians than for Ukrainians.
So it is number two that's the kicker. Is there a credible case for accusing Israel of genocide. Obviously there is - but much more importantly - if there is, then this triggers all sorts of measures in a lot of different countries. One item of particular relevance is the US Leahy law, which prohibits US aid from going to countries where that aid might be used for gross human rights violations. Note that these don't have to be proven gross human rights violations - but that there is credible information that such violations are happening. A finding that Israel is credibly being accused of genocide fits this pretty much exactly. This should cut off Israel's supply of American weapons and bombs.
Such a ruling would paint Biden as an enabler of genocide in the run up to his re-election campaign. I've noted before that I absolutely think of Biden as an enabler of genocide. I call him Genocide Joe - because - from all available evidence - it absolutely 100% fits. But this isn't the mainstream view. OTOH, if the ICJ says that there is a credible case of genocide here - at the minimum, Genocide Joe will be faced with question on it. He can try to dodge, as he has so many times already - but surely being evasive about genocide isn't going to help him out at all.
And yes. It is indeed pretty sad that all of this has to be assessed on such cynical grounds. That the hope that a genocide is stopped rests on how it effects election chances. That I feel the need to put scare quotes around "legally binding" when discussing rulings about genocide. These are broken things that should not be true in a civilized society - and it is very sad. An indictment of humanity that this is the case.
No comments:
Post a Comment