The Case against Israel

Finally, something shifts. The ruling by the International Court of Justice is said by public international lawyers to be a game changer.* For starters, the vocabulary has been reset. Out with the references to ‘self-defence’, bandied around as an excuse for the inexcusable; in with the cogently argued case that the US and UK’s greatest ally in the Middle East is committing genocide.

The judges first dismissed Israel’s claims that the South African legal team lacked the jurisdiction or standing to bring the case, and then by a vast majority (in each instance, either fifteen to two or sixteen to one) ordered a series of six provisional measures.

The state of Israel is now required, according to the ICJ, to take all measures within its power to prevent genocide. The judges threw out the Israeli legal team’s claims that the Palestinian people do not constitute a ‘protected group’, and that there is no specific intent to destroy the Palestinians ‘in whole or in part’. As evidence of that intent, the judges quoted the statements of Israeli politicians: ‘we are fighting human animals … we will eliminate everything’; ‘we will fight until we’ll break their backbone’; ‘they will not receive a drop of water’.

The provisional measures call for Israel to stop killing Palestinians in Gaza and to ‘submit a report to the court on all measures taken to give effect to this order within one month’. One fairly rare requirement was for the evidence of genocide to not be destroyed. The panel of judges stopped short of calling for an immediate ceasefire, to the disappointment of many Palestinians, but the measures are arguably impossible to achieve without one.

The shift in focus from Israel’s ‘self-defence’ to its capacity and intention to commit ‘genocide’ is no small thing. The claim that the Israeli government’s military onslaught is self-defence has been repeated by Western government officials and press secretaries ad infinitum, to obfuscate their legal obligations to stop the killing. Vaughan Lowe KC of the South African legal team dispensed with that smokescreen on 11 January. The UN Security Council had recently ‘affirmed yet again’, he said, that Gaza is ‘occupied territory.’ The Israeli government controls ‘access by land, sea and air, and over key governmental functions and supplies of water and electricity’. Following on from this, Lowe said:

What Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defence under Article 51 of the United Nations Charter has no application. But that is not the main point.
The main point is much simpler. It is that no matter how monstrous or appalling an attack, or provocation, genocide is never a permitted response. Every use of force … must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide.

The siege of Gaza began in 2007. The following year, according to Wikileaked communications, the Israeli government was assuring the US that it would keep Gaza’s economy on the ‘brink of collapse’ while avoiding a ‘humanitarian crisis’. They’ve pushed it over the edge now. In the words of the South African legal team:

Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.

In the early years of the siege, the Israeli government was exposed by an Israeli human rights organisation, Gisha, to have been counting the number of calories it would provide for the Palestinian population of Gaza. The magic number they decided on was a very precise 2279.

Now the people are starving. At first they survived on unpopular supermarket product lines, drinking Schweppes or fruit-flavoured milk drinks in the absence of clean water, while Israeli hostages and their guards ate the same low fat cottage cheese that no one else wanted.

My friend Professor Ghassan Abu Sitta, who worked at Shifa hospital in Gaza, is coeliac. Unlike many people, he had money, but there was nothing left to buy. He lived on one tin of tuna at lunch and one tin of beef for supper. ‘Does it ever start tasting better?’ I asked him after he got back to London, ‘like when you get really hungry?’

‘No,’ he said, holding his nose while making a spooning gesture with his hand. ‘It never gets better.’ At night he would wash the blood off an operating table with Dettol before climbing onto it to sleep. Doctors say his stomach will take time to recover from his monochrome diet of tuna and beef. He was in Gaza for the first 43 days of the onslaught. Most Gazans have been living with more severe shortages of food and clean water for more than 110 days now.

The importance of the judgment in favour of South Africa under the Genocide Convention and the awarding of provisional measures to curtail, if not suspend fully, Israel’s military operations in Gaza are profound. All states have standing to intervene, or to support South Africa in its attempt to uphold the Genocide Convention of 1948. Everyone is under an obligation, as the South African legal team argued, to prevent the serious risk of acts of genocide that aim to wipe out the Palestinians in Gaza in whole or in part.

This obligation to act applies to all 153 state parties to the Convention, including South Africa, the United Kingdom and the United States, and agents under their control, most notably arms exporters and manufacturers who are profiting from the carnage. The countries supporting South Africa’s case to date include Bolivia, Brazil, Colombia, Malaysia, the Maldives, Namibia, Pakistan and Turkey. Many others have indicated a willingness to add their support.

Once, not long ago, during another case before the ICJ, Mappel Liseby Elysé provided testimony of a fall from paradise. I say ‘fall’ but it was more of a shove. Elysé was born on the Chagos islands. ‘Everyone had a job,’ she said, ‘his family and his culture.’ Ships from Mauritius brought goods to the islands and ‘everyone lived a happy life’ until the British administrator told them that they would have to leave. No reason was given. The ships stopped coming. ‘We had nothing to eat. No medicine. Nothing at all. We suffered a lot.’

One day in April 1973, a ship arrived. The Chagossians were forced onto it. ‘We were like animals and slaves in that ship. People were dying of sadness in that ship.’ Elysé was four months’ pregnant but miscarried on arriving in Mauritius.

In 2019, both the ICJ and the UN General Assembly condemned the British government’s actions. Justice was served and a right of return for the Chagossians was established.

Unfortunately, It Was Paradise is the title of a collection of Mahmoud Darwish’s poems. Palestinian writing is full of references to a paradise before 1948, the year of the Nakba, when 700,000 Palestinians were expelled from their homeland. The date was a turning point not only in Israel/Palestine: it was also the year that apartheid was established in South Africa and – conversely – the year of the Universal Declaration of Human Rights and the Genocide Convention. The ICJ case brought by South Africa stands as a test case of Western liberal thinking and of public international law. What kind of a future is going to be upheld? Apartheid, racism, colonialism and genocide, or self-determination, the rule of law and egalitarianism? The ICJ has decided; Western governments also have to choose.

As Munir Akash wrote in his introduction to Darwish’s collection The Adam of Two Edens, ‘the lost realms alluded to in Darwish’s poems are … real villages, real cities, real civilisations and real people.’ But

Eden as such is an idea as much as a place, an idea of the birthright of real people who were expelled from it … Humankind suffers from the loss of Eden. And when even the idea itself is lost, one finds oneself in a living Hell.

Gaza today is far more of a living hell than anything Darwish lived through. More than 25,000 people have been killed and more than 500,000 face catastrophic acute food insecurity. There have been more than 100,000 cases of diarrhoea, 150,000 upper respiratory infections, and hepatitis is on the rise. The earth is poisoned with raw sewage and the sky is ablaze with missiles from naval vessels, F-16s and tanks, while also filled with the incessant buzzing of drones: children wish for fog because it makes it harder for the drones to follow them about.

And a population used to sayideyah, freekeh, rice, zaatar, mujadarrah, mulukhiya, chicken and tabooleh prepared in well-equipped kitchens, has been reduced to dry biscuits sold at twenty times their value, to be eaten in leaky tents. If you don’t like it, the Israeli government says in word and in deed, then head south to the border, where the visa hustlers will take $10,000 from you for the vague promise of an entry permit into Egypt, and you can forget about ever seeing your kitchen again.

Israeli papers have reported that Netanyahu’s government is in talks with Congo, among other countries, on the ‘voluntary resettlement’ of Palestinians from Gaza. Social media reveals first-hand the gloats of Israeli soldiers as they share videos on Tiktok of the beachfront properties they look forward to occupying when the war is over. ‘Listen, Bibi,’ one of them says. ‘We found [the Gazans], we expelled them, and we settled.’

South Africa and the ICJ have taken steps to challenge the hubris, the killing, the cruelty and the lies. May others follow their lead.

* I am grateful in particular to Monica Feria-Tinta of 20 Essex Street for her expertise, which guided the legal argument set out in this article, and also to Abdullah Mutawi. back