“The Last Step in the Destruction of Gaza”

In December 2023, South Africa initiated proceedings against Israel before the International Court of Justice (ICJ). The ICJ is part of the United Nations system and hears disputes between nations. It does not typically have jurisdiction over violations of international humanitarian law (i.e., war crimes), nor is it a venue for criminal prosecutions. Under the Genocide Convention, signatories agree the ICJ has jurisdiction to find violations of the treaty. They also agree that any rulings of the ICJ are binding. As the prevention of genocide is the obligation of all signatories, any signatory to the treaty can bring a case before the court against another signatory. They do not have to be the victim of genocide. This paved the way for South Africa to argue that Israel’s brutal slaughter in Gaza was genocidal.

Genocide under the convention goes beyond mass slaughter. It requires an intent to destroy a specific national, racial, religious, or ethnic group in whole or in part. It will likely take years before the ICJ reaches a final verdict on whether Israel’s atrocities in Gaza specifically constitute genocide. But because genocide involves grave, irreparable violations of human rights that require urgent action, the ICJ is not powerless to act until a final decision on the merits can be made. A party can request the court issue provisional measures. Such measures require the court to find it plausible that the genocide is occurring and that absent the measures, irreparable violations of rights protected by the Genocide Convention will take place.

South Africa requested the ICJ apply such provisional measures to Israel’s actions in Gaza. In early January, a mere two weeks after the case was filed, the ICJ held two days of hearings on South Africa’s request for provisional measures. During the hearings, South Africa presented a powerful and disturbing case that Israel’s actions were genocidal. The ICJ, in a 15-2 decision, ruled it plausible that Israel’s military assault on Gaza constituted genocide and issued a number of provisional measures. Controversially, the provisional measures did not include an explicit call for a cease-fire. South Africa argued that absent a cease-fire the provisional measures could not be implemented.

In February, citing the growing crisis in Rafah, South Africa urged the ICJ to adopt additional provisional measures. The ICJ rejected this request as unnecessary, stressing that its original order applied to all of Gaza, including Rafah. It did not deny the “humanitarian nightmare” unfolding but called for the implementation of its existing measures. Then in March, South Africa again requested additional provisional measures. This time the ICJ agreed the situation had deteriorated even further and issued new binding measures mandating Israel let humanitarian aid into the Gaza Strip. Judge Abdulqawi Ahmed Yusuf issued a declaration stating, “All the indicators of genocidal activities are flashing red in Gaza. An injunction has been served for ending the atrocities.”

The atrocities did not end. Instead, Israel intensified its attack on Rafah. Last month, South Africa appealed to the court for a fourth time, urging new measures to halt the offensive in Rafah. With remarkable speed, the ICJ convened a new round of oral arguments within just six days.

Speaking before the court, South Africa’s ambassador to the Netherlands, Vusimuzi Madonsela, stressed, “Seven months ago, South Africa could not have imagined that Gaza would now be mostly wiped off the map. It could not foresee that every family, every neighborhood, every class of students, every workplace, would be pulled apart, killed, maimed, displaced, malnourished, or starved.”

South Africa told the ICJ it hoped by bringing the proceedings against Israel, it would end the genocide. Instead, Israel had violated the court’s rulings not only by continuing its annihilation of the Palestinian people, but by escalating it dramatically.

South Africa’s legal team explained to the ICJ how Israel has deliberately targeted hospitals and health infrastructure while throttling humanitarian aid destined for Gaza. Adila Hassim, a member of the South African legal team, told the court, “In its targeted attacks on hospitals, Israel has killed hundreds of civilians, including doctors and medical staff, turning centers built for healing into mass graves full of the decomposing bodies of men, women, and children.”

Hassim described the discovery of mass graves outside the al-Nasser and al-Shifa hospitals. At al-Nasser 324 bodies were unearthed, including decapitated bodies of medical workers still in their blue scrubs. Many of the decomposing bodies found were “stripped and handcuffed.” Outside al-Shifa, the bodies of women and children, who appeared to have been tortured and summarily executed, were discovered in two mass graves.

Throughout the genocide, Israel’s bombardment destroyed homes, hospitals, and necessary infrastructure across the Gaza Strip. One of the only areas left standing is Rafah. A year ago, Rafah was home to 275,000 Palestinians. Presently, Rafah is home to 1.5 million people. The influx of 1.2 million additional Palestinians has been caused by both Israel’s orders for people to evacuate to Rafah and the fact that much of the rest of Gaza has been reduced to rubble.

Now Israel has seized the border crossings into Rafah, escalated its bombing of the crowded area, and invaded. People with nowhere left to run are under an all-out assault in their last refuge. As Vaughan Lowe told the court on behalf of South Africa’s legal team, it is “increasingly clear that Israel’s actions in Rafah are part of the endgame in which Gaza is utterly destroyed as an area capable of human habitation. This is the last step in the destruction of Gaza and its Palestinian people.”

Israel maintained that its legal team was unable to reach the Hague on short notice, saying its lead counsel was “shipborne.” While much of its legal team was unavailable, Israel’s two agents, Gilam Noam and Tamar Kaplan Tourgeman addressed the ICJ in response to South Africa’s arguments. Noam stated that South Africa’s case was not motivated by humanitarian concerns, but by South Africa’s desire “to obtain military advantage for its ally, Hamas.” According to Tourgeman, to grant South Africa’s request “would be to side with a terrorist organization.”

The ICJ again ruled for South Africa, issuing a rebuke to Israel. In its latest provisional measure, a 13-2 majority ordered Israel to “immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

Israel’s foreign ministry and supporters of the genocide in Gaza have attempted to debate the meaning of a single comma to argue that the ICJ has not in fact ordered an end to the military offensive in Rafah. But to everyone else, including leading human rights organizations, the meaning of this order is clear. Israel must halt its assault on Rafah.

A Rogue State and Its Enablers

Israel isn’t continuing its genocidal rampage on account of its strong adherence to the meaning of a single punctuation mark. Israel is carrying out its rampage because it is a rogue state. And Israel can act as a rogue state because it is shielded with impunity by the United States. The United States has repeatedly exercised its veto on the UN Security Council to protect the apartheid regime. The United States not only provides diplomatic cover for Israel’s crimes, but also the material means by which Israel is carrying out its genocide. The United States provides the overwhelming majority of the weapons Israel is using in its attempted annihilation of the Palestinian people.

As a treaty ratified by the Senate, under the US Constitution the Genocide Convention is binding law. This means the United States is obligated to follow the ICJ’s decision. Independent of the ICJ case, the Center for Constitutional Rights brought its own case in US courts, hoping to force the Biden administration to comply with the Genocide Convention. A federal judge agreed it was plausible Israel was committing genocide but ruled it was for the political branches, not the courts, to enforce the Genocide Convention.

The Biden administration has continued to arm Israel, and Congress has raced to fund the genocide. After Biden told an interviewer he would halt the shipment of two-thousand-pound bombs to Israel due to concern over their use in Rafah (an empty promise), the House of Representatives passed a bill that would block funding for the National Security Council, Pentagon, and State Department if the White House blocks any weapons shipments to Israel. Speaking of the ICJ decision ordering a halt to the onslaught in Rafah, Sen. Lindsey Graham (R-SC) stated, “As far as I’m concerned, the ICJ can go to hell. It is long past time to stand up to these so-called international justice organizations associated with the UN.”

The ICJ is not the only international court Israel has run afoul of. Karim Khan, the prosecutor of the International Criminal Court (ICC), has announced he will seek an arrest warrant for Israeli prime minister Benjamin Netanyahu and defense minister Yoav Gallant. He also plans to seek arrest warrants against three Hamas leaders. Unlike the ICJ, the ICC does not count Israel or the United States as members. Notoriously, the United States has a law on the books that allows it to use military force against the ICC if it imprisons a US military member.

The law also allows military action if Israeli personnel are imprisoned by the ICC. In a letter to the ICC prosecutor, twelve Republican Senators cited the law. They also threatened to sanction not only the ICC and its employees, but their family members. On June 4, the House of Representatives moved beyond threatening letters and passed a bill that would sanction the ICC.

Congress may be threatening the ICC, but Israel is taking action against it. Investigative reporting by the Guardian and +972 magazine uncovered how for nine years Israel has waged a “secret war” on the ICC. As part of the war, multiple Israeli intelligence agencies were involved in intercepting the communications of ICC staff and Palestinian NGOs who filed complaints with the ICC. After one Palestinian NGO, Al-Haq, provided the ICC with evidence of Israeli war crimes, Israel declared the NGO to be a terrorist organization. Both the European Union and the CIA reject this finding. This, too, is part of a pattern. When Defense for Children International- Palestine reported to the US State Department that Israeli forces raped a fifteen-year-old Palestinian detainee, Israel labeled it a terrorist group.

Spying on international courts and falsely smearing NGOs as terrorists are not the actions of a government with respect for international norms. They are fully in line with the rogue actions of an apartheid state that is now openly flouting the ICJ by violating the Genocide Convention. And by enabling Israel as it massacres civilians in Rafah, the United States has also gone rogue.