Israel's ICJ defiance threatens international law and global stability

Israel is testing the world's commitment to human rights. Defying last week's ruling from the International Court of Justice (ICJ) to cease its military offensive in Rafah, Israel over the weekend has bombed and killed dozens more Palestinians, most of them women and children.

A particularly horrific attack on a tent camp last night resulted in people being burned to death, prompting UN's Palestinian aid agency UNRWA to call Gaza "hell on earth."

In a significant 13-2 majority vote, the ICJ, the highest UN court, ruled on Friday that Israel's military plans in Rafah may inflict catastrophic conditions of life that could result in the "physical destruction" of the Palestinian people in whole or part, which is code language for genocide.

The application brought by South Africa in terms of the Convention on the Prevention and Punishment of the Crime of Genocide places an obligation on states to not commit genocide, to actively prevent it and to punish those who commit it.

Accountability

Since October, Israel has destroyed the lives of nearly 36,000 people, most of them women and children in Gaza. Several thousand people are unaccounted for, suspected to be dead under the rubble. And at least 75,000 people have been maimed or injured.

Even though the ICJ ruling lacks the power of enforcement, its judgments are binding in terms of international law. Defiant of previous ICJ verdicts, Israel has gradually been outmanoeuvred diplomatically in the eyes of global public opinion.

Now it has been repeatedly held accountable by the custodian agencies of international law such as the ICJ and the International Criminal Court (ICC) as well as a grassroots conscientious global public.

In all Israel’s previous brutalities against Palestinians, there was no mobilisation of the instruments of legal accountability such as the ICJ and the ICC.

Israel’s image as a pariah nation bent on perpetrating war crimes and genocide only grows daily. What happens next will determine the future of international law and global stability.

Mustafa Barghouti of the Palestinian National Initiative said after the most recent verdict that it was time for the UN Security Council to implement the ICJ rulings as the highest international body for enforcement.

A UN Security Council vote would once again put the United States, Israel's key ally, to the test. It is most likely to veto enforcement. But in the process, US credibility will suffer since it will be viewed as once again violating the rules-based international order and flouting international law.

Next steps for Israel

According to Barghouti, the next step should be for the UN to impose economic sanctions against Israel for its violation of human rights, war crimes and face charges of plausible genocide.

Earlier this month, an attempted ceasefire to end the Gaza war involving an exchange of prisoners failed when Israel rejected the offer and pursued its goal of an invasion of Rafah.

Flickering prospects for the resumption of ceasefire talks in the coming days have once again been kindled by officials with knowledge of the matter while Hamas has denied any fixed timeline. Some 14,000 Palestinians are languishing in Israeli prisons while Hamas continues to hold some 150 Israelis.

In its latest ruling, the ICJ warned that a "catastrophic situation" is taking place in Gaza and urged Israel to heed the measures the court issued in January and March. But Israel has refused to comply with any of these orders and its leaders have issued defiant statements before and after the recent order was issued.

The US and the United Kingdom, after announcing that the recent invasion of Rafah would amount to Israel crossing a "red line," have now blurred their red lines, and backed down on their threats, despite earlier fears of putting civilians at risk.

Fool's errand

The White House has been silent after last week's ICJ ruling, which might indicate US dissatisfaction with Israel. But ignoring the ICJ and siding with Israel's alleged "limited operation" indicates that the US will support Israel even when the world court has described Israel's military action as "catastrophic."

The court also said Israel is impeding humanitarian aid and exacerbating the prospects of serious famine, which is a war crime, through the starvation of an entire population of 2.5 million Palestinians.

Before backtracking on its "red line," the Biden administration did decide to hold back the delivery of some high payload munitions to Israel. At least the public face of US policy showed some hesitation, given the international law implications and possible allegations of US complicity in war crimes.

Yet US conduct has been nothing short of confusing; it soon resumed the supply of other types of weapons to Israel following an outcry by Republicans and some Democrats in the US Congress.

With the defiant Israeli incursion into Rafah, the US has now effectively given Israel the green light to destroy the enclave as long as it is a "slow assault." The US is now actively undermining its self-proclaimed rules-based international order by sheltering Israel and defending its war crimes.

Some observers allege that the US is a co-belligerent in Gaza. And several experts who were reluctant to call the Gaza war a genocide, such as John Mearsheimer and the cofounder of Human Rights Watch Aryeh Neier, now charge Israel with that heinous crime.

The US supports Israel's goal of annihilating Hamas when most knowledgeable observers believe it is impossible to eliminate Hamas.

Yet, Tel Aviv and Washington are committed to this fool's errand, driven by vengeance, instead of addressing the core demands of a just solution to Palestinians' claims to self-determination and an end to settler-colonialism.

In its most recent judgement, the ICJ noted that "weeks of intensified bombardment" since have resulted in 800,000 people being displaced from Rafah in May. The border with Egypt has been sealed, stopping vital humanitarian aid from reaching Gaza.

Denying food and essential supplies to Palestinians in this way contravenes the latest as well as the previous two ICJ rulings, which insisted on increasing humanitarian aid to starving people.

In the aftermath of the latest ruling, the European Union's (EU) top diplomat Josep Borrell said: "What is going to be the (EU's) answer to the ruling of the International Court of Justice that has been issued today, what is going to be our position? We will have to choose between our support to international institutions of the rule of law or our support to Israel."

Canada's premier Justin Trudeau declared that the ICJ decision is in line with Canada's position for an immediate ceasefire and urged no more military operations in Rafah.

Israel's denials

The court also ordered Israel to allow investigators to assess "ongoing atrocities" following the discovery of mass graves at Nasser Hospital in Khan Younis and at the Al Shifa Hospital in Gaza City, where bodies were discovered reportedly showing "signs of torture and summary executions."

The court recorded Israel's "complete refusal to allow independent investigators" into Gaza to assess the loss of life. The ICJ also heard that the number of actual casualties will remain unknown, and that Israel's ongoing attacks will obliterate evidence.

Israel's response was to claim that the charges and allegations against it were "patently untrue" and denied it was not engaged in a "large-scale assault" on Rafah.

While changing the rhetoric around the size of the invasion to pacify international criticism, the death toll in Rafah tells a different story. Since February, residential areas have been targeted, and a refugee inside Rafah said the Israelis "shoot and bomb us constantly, but what scares us the most are the drones."

It is difficult to quantify the number of deaths in Rafah since February, but reports indicate a growing civilian death toll in that part of the enclave.

On May 20, 2024 the prosecutor at the International Criminal Court (ICC) Karim Khan issued applications for arrest warrants to the pre-trial chamber of the ICC on the grounds that the Prime Minister of Israel Benjamin Netanyahu and his minister of defence, Yoav Gallant, bear criminal responsibility" for war crimes and crimes against humanity perpetrated in the Gaza war.

In light of the ICC application for arrest warrants, a spokesperson for German chancellor Olaf Scholz said Germany would arrest Netanyahu and would extradite him amid great condemnation in Israeli newspapers.

What US and European leaders are ignoring is that the balance of power in international bodies and big power rivalry is shifting with the rise of China, Russia, India and several African nations. Existing instruments of accountability are now implemented with greater awareness that international norms and human rights must be applied uniformly without exceptions.

The US and European powers must now come to realise that there is a limit to how much they can buck the international system in their favour and that of their allies.

Continuing to undermine it could destine human rights and international law to the dustbin of history. If this happens, global turmoil and lawlessness will be more unimaginable than at present.