A water distribution tank attacked by the Israeli air force in Gaza
killing 12 civilians including 7 children, February 7, 2024 [photo
credit: X]
As Omar Shakir, the Israel and Palestine director at Human Rights Watch, put it in an interview with The Nation on the day of the ICJ ruling, “it’s important to emphasize what the court did
order.” Six measures in total - including for Israel “to refrain from
acts under the Genocide convention”; and while jurisdictional issues
meant ordering a ceasefire was never an option available to the judges
at the ICJ (because not all parties to the armed conflict were in the
courtroom) all the provisional measures ordered were aimed at stopping
the rampant killing in Gaza.
Understandably, the inability of the ICJ to end Israel’s bombardment
of Gaza – which has to date killed more than 27,000 people, nearly half
of whom are children – is disappointing, if not heart-breaking for those
desperate to see the carnage stop. But with or without the word
‘ceasefire’, enforceability was always going to be an issue thanks to
the US veto at the UN Security Council, the organ responsible for
actioning legal rulings.
However, that doesn’t lessen the significance of the ICJ’s ruling for Palestinians nor its impact on Israel and its allies.
Symbolically, the effect of hearing affirmed by a world court some of
the horrors Palestinians have experienced – not only since October
2023, but all the way back to the 1948 Nakba - and then have that court
confirm the severity and urgency of the situation in Gaza is huge.
However, it is in the legal realm that the ICJ’s findings have the
most power to challenge Western powers’ “unequivocal” support for
Israel.
When the courts accepted the charge against Israel of genocide as
plausible it also extended the possibility of that charge being levied
against its allies in North America and Europe through complicity. All
signatories to the Genocide Convention are obliged to take measures to prevent and punish genocide.
Indeed, a California federal court has already heard a case
brought by the Palestinian human rights organisations Defense for
Children International–Palestine (DCIP) and Al-Haq charging the Biden
administration with failing in its “duty to prevent, and otherwise
aiding and abetting the unfolding genocide in Gaza.”
Reluctantly dismissing the case for lack of jurisdiction over foreign
policy matters, the U.S. District Judge Jeffrey White nevertheless
still offered harsh criticism of the administration and said Israel’s
actions may amount to genocide.
The judge said it was a “rare” instance where “the preferred outcome
is inaccessible to the Court” but found that Israel was “plausibly”
committing genocide and implored the Biden administration “to examine
the results of their unflagging support of the military siege against
the Palestinians in Gaza.”
The U.S. court based its assessment on the “uncontroverted” live
testimony of seven Palestinian witnesses, including one from Gaza and
one from Ramallah who testified first-hand to Israel’s killing of their
nieces, cousins, aunts, uncles, elders, and members of their community,
to the mass displacement of their families reminiscent of the 1948 Nakba
and to the devastating conditions of life in their homeland as the
siege leads to mass starvation. As with the ICJ hearing, the
significance of such public testimony on public and political
consciousness is far-reaching.
The personalisation of legal challenges has spread across the pond as
well. Earlier this year, The International Centre of Justice for
Palestinians (ICJP) handed evidence to the UK’s Scotland Yard after
issuing notices of their intention to prosecute UK politicians, including government ministers for
their complicity in war crimes in Gaza. The ICJP said their dossier of
evidence related to senior UK politicians, including government
ministers, as well as Israeli ministers and private British individuals.
Meanwhile in the European Union, The Justice and Accountability for Palestine Initiative has also issued warnings
to European public officials of the Austrian, French, German and Dutch
governments that they too could be held criminally liable for their role
in aiding and abetting Israeli war crimes.
At the International Criminal Court, where individuals not states are
tried, lawsuits are being filed against Israeli leaders and an
investigation into war crimes committed in Israel and Palestine was
opened in 2021.
It isn’t just individual liability that is now on the line either.
Finances, most notably through weapons sales, are also under scrutiny.
In the UK, Global Legal Action Network (GLAN) and Al-Haq are taking the Government to the High Court over its weapons exports to Israel.
In The Netherlands, human rights organisations are appealing the decision by a court to dismiss their case against the Dutch government over its supply of components for Israeli F35 fighter jets.
While the Biden administration continues its steady stream of arms
supplies to Israel – twice bypassing Congress in the process – the ICJ’s
ruling and America’s obligations open their arms trade up to great
scrutiny and possible legal action.
All the above-mentioned countries have policies and laws in place
that prevent the provision of assistance to foreign military units that
have committed gross violations of human rights, including genocide.
Unsurprisingly, Israel has historically not been subject to vetting in
America due to longstanding loopholes and administrations committed to
protecting Israel at all costs. Meanwhile, courts around the world are
finding their jurisdictions are hamstrung by the exceptions of foreign
policy and/or national interest. But that hasn’t stopped judges
expressing their opinion for public record, as we have already seen, nor
will it necessarily stop the legal challenges making their way up
through the higher courts until jurisdiction is found.
Days after the ICJ hearings laid bare the extent of Gaza’s
devastation, Israel’s Prime Minister Benjamin Netanyahu boasted how
“nobody will stop us” and it is true that so far no-one has. But while
Israel remains cosseted by the political protection of America and its
small number of allies, in the eyes of the public, and now more so the
law, Israel looks increasingly like the criminal.