ANALYSIS: By Chris Hedges
The International Court of Justice (ICJ) refused to implement the most crucial demand made by South African jurists: “The State of Israel shall immediately suspend its military operations in and against Gaza.”
But at the same time, it delivered a devastating blow to the foundational myth of Israel. Israel, which paints itself as eternally persecuted, has been credibly accused of committing genocide against Palestinians in Gaza.
Palestinians are the victims, not the perpetrators, of the “crime of crimes”.
A people, once in need of protection from genocide, are now potentially committing it. The court’s ruling questions the very raison d’être of the “Jewish State” and challenges the impunity Israel has enjoyed since its founding 75 years ago.
The ICJ ordered Israel to take six provisional measures to prevent acts of genocide, measures that will be very difficult if not impossible to fulfill if Israel continues its saturation bombing of Gaza and wholesale targeting of vital infrastructure.
The court called on Israel “to prevent and punish the direct and public incitement to commit genocide.” It demanded Israel “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”.
It ordered Israel to protect Palestinian civilians. It called on Israel to protect the some 50,000 women giving birth in Gaza. It ordered Israel to take “effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip”.
The court ordered Israel to “take all measures within its power” to prevent the crimes which amount to genocide such as “killing, causing serious bodily and mental harm, inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and imposing measures intended to prevent births within the group.”
Israel was ordered to report back in one month to explain what it had done to implement the provisional measures.
Gaza was pounded with bombs, missiles and artillery shells as the ruling was read in The Hague — at least 183 Palestinians have been killed in the last 24 hours. Since October 7, more than 26,000 Palestinians have been killed. Almost 65,000 have been wounded, according to the Palestinian Ministry of Health. Thousands more are missing.
The carnage continues. This is the cold reality.
Translated into the vernacular, the court is saying Israel must feed and provide medical care for the victims, cease public statements advocating genocide, preserve evidence of genocide and stop killing Palestinian civilians. Come back and report in a month.
It is hard to see how these provisional measures can be achieved if the carnage in Gaza continues.
“Without a ceasefire, the order doesn’t actually work,” Dr Naledi Pandor, South Africa’s Minister of International Relations, stated bluntly after the ruling.
Thousands will die
Time is not on the side of the Palestinians. Thousands of Palestinians will die within a month. Palestinians in Gaza make up 80 percent of all the people facing famine or catastrophic hunger worldwide, according to the United Nations.
The entire population of Gaza by early February is projected to lack sufficient food, with half a million people suffering from starvation, according to the Integrated Food Security Phase Classification, drawing on data from UN agencies and NGOs. The famine is engineered by Israel.
At best, the court — while it will not rule for a few years on whether Israel is committing genocide — has given legal licence to use the word “genocide” to describe what Israel is doing in Gaza. This is very significant, but it is not enough, given the humanitarian catastrophe in Gaza.
Israel has dropped almost 30,000 bombs and shells on Gaza — eight times more bombs than the US dropped on Iraq during six years of war. It has used hundreds of 900kg bombs to obliterate densely populated areas, including refugee camps.
These “bunker buster” bombs have a kill radius of 300m. The Israeli aerial assault is unlike anything seen since Vietnam. Gaza, only 33km long and 8km wide, is rapidly becoming, by design, uninhabitable.
Israel will no doubt continue its assault arguing that it is not in violation of the court’s directives. In addition, the Biden administration will undoubtedly veto the resolution at the Security Council demanding Israel implement the provisional measures. The General Assembly, if the Security Council does not endorse the measures, can vote again calling for a ceasefire, but has no power to enforce it.
Defence for Children International — Palestine v Biden was filed in November by the Center for Constitutional Rights against President Joe Biden, Secretary of State Antony Blinken and Secretary of Defence Lloyd Austin. The case challenges the US government’s failure to prevent complicity in Israel’s unfolding genocide of the Palestinian people. It asks the court to order the Biden administration to cease diplomatic and military support and comply with its legal obligations under international and federal law.
Only active resistance
The only active resistance to halt the Gaza genocide is provided by Yemen’s Red Sea blockade. Yemen, which was under siege for eight years by Saudi Arabia, the United Arab Emirates, France, Britain and the US, experienced more than 400,000 deaths from starvation, lack of health care, infectious diseases and the deliberate bombing of schools, hospitals, infrastructure, residential areas, markets, funerals and weddings.
Yemen’s resistance — when the history of this genocide is written — will set it apart from nearly every other nation. The rest of the world, including the Arab world, retreats into toothless rhetorical condemnations or actively supports Israel’s obliteration of Gaza and its 2.3 million inhabitants.
The Israeli newspaper Yedioth Ahronoth reported that the US has sent 230 cargo planes and 20 ships filled with artillery shells, armoured vehicles and combat equipment to Israel since the attacks of October 7, in which some 1139 Israelis were killed. US weapons and military equipment are being shipped to Israel — which is running out of munitions — from the British base RAF Akrotiri in Cyprus, according to the UK investigative website Declassified UK.
The Israeli newspaper Haaretz reported that more than 40 US and 20 British transport aircraft, along with seven heavy-lift helicopters, have flown into RAF Akrotiri, a 40-minute flight from Tel Aviv. Germany reportedly plans to provide 10,000 rounds of 120mm precision ammunition to Israel.
If the court rules against Israel, these countries will be recognised by the world’s most important international court as accomplices to genocide.
The ruling was dismissed by Israeli leaders.
‘Outrageous’ says Netanyahu
Prime Minister Benjamin Netanyahu, seeking to paint the decision not to demand a ceasefire as a victory for Israel, said: “Like every country, Israel has an inherent right to defend itself. The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected. The charge of genocide leveled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it.”
National Security Minister Itamar Ben-Gvir said: “The decision of the antisemitic court in The Hague proves what was already known: This court does not seek justice, but rather the persecution of Jewish people. They were silent during the Holocaust and today they continue the hypocrisy and take it another step further.”
“Decisions that endanger the continued existence of the State of Israel must not be listened to,” Ben-Gvir added. “We must continue defeating the enemy until complete victory.”
The court, which rejected Israel’s arguments to dismiss the case, acknowledged “that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale.”
The ruling included a statement made by the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Martin Griffiths, who on January 5, called Gaza “a place of death and despair.” The court document went on:
. . . Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.
For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out.
Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.
The court acknowledged that “an unprecedented 93 percent of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident.”
The ruling, quoting Philippe Lazzarini, the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), continued:
Overcrowded and unsanitary UNRWA shelters have now become ‘home’ to more than 1.4 million people,” the ruling read. “They lack everything, from food to hygiene to privacy. People live in inhumane conditions, where diseases are spreading, including among children. They live through the unlivable, with the clock ticking fast towards famine.
The plight of children in Gaza is especially heartbreaking. An entire generation of children is traumatized and will take years to heal. Thousands have been killed, maimed, and orphaned. Hundreds of thousands are deprived of education. Their future is in jeopardy, with far-reaching and long-lasting consequences.
The court also referred pointedly to comments made by multiple senior Israeli government officials advocating genocide, including the president and minister of defence. Statements made by government and other officials form a crucial element of the “intent” component when seeking to establish the crime of genocide.
It quoted Israeli Defence Minister Yoav Gallant who declared — two days after the Hamas-led attack of October 7 — that he ordered a “complete siege” of Gaza City with “no electricity, no food, no fuel” being permitted.
“I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza,” Gallant told Israeli troops massing around Gaza the following day.
“This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
The ICJ quoted Israel’s President Isaac Herzog as saying: “It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. We are at war. We are defending our homes.”
Herzog continued: “We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone.”
The decision was read out by the ICJ’s current president, Judge Joan Donoghue, an American lawyer who used to work at the US State Department and the Department of the Treasury before she joined the World Court in 2010.
South African genocide claims ‘plausible’
“In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible,” it read.
“This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.”
It is clear from the ruling that the court is fully aware of the magnitude of Israel’s crimes. This makes the decision not to call for the immediate suspension of Israeli military activity in and against Gaza all the more distressing.
But the court did deliver a devastating blow to the mystique Israel has used since its founding to carry out its settler colonial project against the indigenous inhabitants of historic Palestine. It made the word genocide, when applied to Israel, credible.