“THE world owes a huge debt of gratitude to the government of South Africa and its legal team,” said London-based former Israeli negotiator Daniel Levy, adding that what Pretoria achieved through approaching the International Court of Justice (ICJ) and getting the provisional measures’ 15-2 (some measures with 16-1 majority) ruling was unprecedented in the Middle East conflict.
While there was disappointment in Palestine itself, particularly in Gaza and the West Bank, because the ICJ did not call for an immediate ceasefire, many legal experts argued that a cessation or a massive dialling down of hostilities was a prerequisite to the implementation of its order. There is no space here but a careful read of the item-by- item provisional measures makes this apparent.
Understandably for a people who have had death and destruction rain down upon them relentlessly for over 100 days and having lost 26,000 lives in that short span, it may not have been much consolation but it was significant indeed that Israel was finally in the dock charged with genocide.
It was also understandable that after its initial reaction — which could easily be termed as Israel at its thuggish best/ worst, as one after the other the country’s leaders attacked the ruling as a ‘travesty’, ‘obscene’ and used a slew of similar words, even calling the ICJ ‘antisemitic’ — its spin doctors sprang into action, describing the order as a win because it did not call for a ceasefire.
Many legal experts also weighed in, among them Heidi Matthews, who has a doctorate from the Harvard Law School and teaches at York University in Toronto. She acknowledged on X that there will be disappointment because the court stopped short of ordering a ceasefire but still described it as a big win for the advocates of Palestine.
For 75 years, Israel has played on the guilt of the West for not stopping the Holocaust.
“The fact that the Court ordered measures it did, including directing Israel not to commit or incite genocide, indicates it has concluded that it is (a) plausible for Palestinians in Gaza to claim protection from genocide, and (b) that need for protection is urgent.
“I think we can infer from this that at a minimum there is serious risk that Israel will commit genocide. This is important because it puts all states on formal notice of the serious risk of genocide, which triggers states’ duty to take concrete steps to prevent genocide.”
She said: “Among other things, this means that in order for the states to fulfil their international obligations under the Genocide Convention they must do something. For e.g., states exporting arms or military technology to Israel must stop.
“The short story: this order on provisional measures will have an important and immediate impact on how states are required to act under international law. It will also radically shift the global conversation about what is happening in Gaza.
“Note re my observation about whether states must stop exporting arms to Israel on the basis of these provisional measures. The details of domestic legislation will be important here. At a minimum, states should conduct thorough and transparent assessments whether their arms will or could be used by Israel to commit international crimes, including genocide.”
Of course, while Prof Matthews’s views on the ruling are from a strictly legal perspective, America’s initial reaction seemed more in line with Israel’s. However, the EU immediately put out a statement saying it would abide by the ICJ ruling as required by law.
The EU Commission president, Germany’s Ursula Von Der Leyen, has drawn considerable opprobrium for endorsing Israel’s actions thus far. This US-EU divergence was the first crack, even if not a breach, in the pro-Israel Western coalition.
As an analyst explained on Al Jazeera the international court is not an international ‘government’ so does not have the means to enforce implementation of its rulings, but the provisional measures gave a big moral win to the beleaguered and bloodied Gazans.
It also stripped Israel of its ‘victim mantle’ that the Zionist state has so often used as it has bludgeoned Palestinians, continued to occupy more and more of their land via expansion of its settlements in the West Bank and confined over two million Palestinians in what is described as the world’s largest open air prison, Gaza.
It is also significant that in what is described as a largely unipolar world with the US being the pre-eminent military power (China is trying to catch up but still a far way off, and Russia is throwing its weight about to regain its past glory, without much success), South Africa has emerged as the leader of the Global South and gained credibility as a state with sound moral, ethical values and standards.
For 75 years, Israel has played on the guilt of the West for not stopping the horrors of the Holocaust perpetrated by Nazi Germany in which 5m to 6m Jews were annihilated in one of the worst crimes against humanity. In the eyes of the West at least, Israel was justified in seeking security for its people, given that experience, even if it meant the expulsion of Palestinians and continued occupation of their land.
In the short term, this ICJ ruling of provisional measures may not deliver much in concrete, physical terms to the Palestinians for now. But it will isolate Israel, strip its actions of legitimacy and who knows possibly even make it see sense.
Genocide of the Palestinians will not deliver lasting peace to the Israelis. Equal rights and a life of dignity for the Palestinians will. Israel will have to eventually acknowledge the prudence of swapping land for peace. More violence will beget more violence, and as the ICJ has shown, the world may not stand by and watch as it has in the past.
One earnestly wishes that the rich and powerful Muslim countries had played a proactive role in securing some justice for the Palestinians. But the despots couldn’t be moved. They were and continue to be miserly even with lip service, while Nelson Mandela’s political heirs have stolen a march over them.
The writer is a former editor of Dawn.
abbas.nasir@hotmail.com
Published in Dawn, January 28th, 2024
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