Symbolic victory in The Hague
Whatever its limitations, Mike Macnair welcomes the ruling of the International Court of Justice. It helps undermine the ‘anti-Zionism equals anti-Semitism’ big lie
On Friday January 26 the International Court of Justice at the Hague ruled on “provisional measures” to (attempt to) preserve the status quo in South Africa’s complaint that Israel’s conduct in Gaza is in violation of the 1948 international convention on genocide.1
This was the minimum possible decision against Israel, but it is still against Israel, and as such has attracted silencing efforts from the Tory press. The Australian ABC News website commented that “Both parties to the case went into full media-management mode”,2 but in this country what we have chiefly seen is pro-Israeli media management.
Looking at Saturday’s papers, the Morning Star, The Guardian and the Financial Times rightly led with the decision. The Independent led with a (presumably state-planted) story: “UK’s ‘golden age’ with China harmed British intelligence, says former MI6 spy chief”. But a box on the front page said: “UN’s top court orders Israel to prevent genocide - but no ceasefire call” and the ruling did get the best part of a page inside.
The Times led with “Nottingham mother calls for inquiry into killings”, with “Trump must pay $83m in damages for defamation” as the second front-page story. The ICJ ruling was relegated to p42. The Telegraph led with another probably state-planted story: “US to move nuclear weapons back to UK”. The second-largest first page story, in terms of column inches, was “Church in trans row after boy, 4, joins primary school as girl.” The ICJ ruling did appear, but not as a report of it, but as Rishi Sunak’s condemnation of it, headlined “No 10 attacks irony of Israel genocide ruling”. The main leader (p19) was “Britain must renew solidarity with Israel”.
The Mail chose a royal headline - always useful when the news is inconvenient: “Camilla’s smile that says: the king’s fine”. Like the Telegraph, it did not report the ICJ ruling, but merely denounced it in a leader: “Hamas is bent on genocide, not Israel” (p16). The rest of the double page (pp16-17) is a long article by war journo David Patrikarakos denouncing the waste of money on the two British aircraft carriers commissioned by the Blair government in 2007, which remain in harbour awaiting work, urging that they should be sold to the US, which can afford to make them fit for service and deploy them. Inside there is a double page of pro-Israeli propaganda: “Girl hostages beg for help in Gaza video” (it does not occur to the Mail that they would be more likely to get out alive if Israel would negotiate) and “UN staff sacked for ‘taking part’ in Hamas attack”.
The international edition of The New York Times (January 27-28) may have gone to press too soon to report the ICJ decision. It carries an opinion piece on the case by Sean Jacobs: “South Africa and a moral conscience”. This is, however, overshadowed in terms of column inches by a full page from Thomas L Friedman, headlined “A gigantic geopolitical struggle is underway”, denouncing the “resistance network” (identified as Iran, Russia, North Korea, etc), which he says is merely destructive, in favour of the “network of inclusion” of Saudi Arabia, the Gulf states and international markets, which he argues is the constructive future; and by two thirds of a page on “Gaza’s ‘day after’ seems ever more distant”, discussing US and Israeli ideas of what will happen after the war on Gaza.
The US-based Foreign Affairs, an ‘establishment’ journal that publishes articles overlapping between ‘practitioner’ and academic opinion of its subject-matter, got a quick comment from David Kaye of the University of California Irvine School of Law: “The ICJ ruling’s hidden diplomacy”. Kaye notes the limited character of the ruling, but goes on to argue:
the court’s ruling also contains a hidden ambition: it challenges all states - and especially the United States - to take international law seriously at a time of increasing violence and conflict and decreasing respect for the authority of international legal institutions. Indeed, at a time when the Biden administration’s efforts to limit the war’s harm to civilians seem to be flailing, the court threw it a lifeline, a path to a new policy toward the conflict that is rooted in international norms. The White House should embrace the court’s ruling, deploying it as a new diplomatic tool to end Israel’s military operation and force Hamas to release the hostages it still cruelly and unconscionably holds in Gaza.3
The background to the decision, and to these various responses to it, has several elements. In the first place, the decision against Israel is minimal. This reflects in part the nature of the definition of genocide in the 1948 convention, in part the nature of the proceedings (a decision on “provisional measures” in a claim by South Africa against Israel), and in part the nature of the ICJ.
Secondly, even the most minimal decision against Israel is unacceptable to the Tory press and to the British state. This reflects the nature of the ‘anti-Semitism’ smear campaign. The greater ambiguity of the US press reflects the fact that under the Biden administration the USA is still promoting the ideas of the ‘rule-governed world order’ and the delusion of a ‘two-state solution’ (which is in reality merely ‘Indian reservations’ within a greater Israel), for political and diplomatic consumption outside the European vassal-states. The European vassal-states are, in contrast, to be held down to the US by the ‘anti-Semitism’ smear campaign.
Thirdly, at the end of the day the point of US support for the state of Israel is for the US to hold veto control of the Middle East. This global, and hence regional, geostrategic purpose underlying US support for Israel means that the symbolic significance of the ICJ’s decision may have more profound consequences than at first appear.
In what follows, I should say that I am in no sense an expert on international law, and these are the politico-legal speculations of a legal historian who is a communist, and no more.
The 1948 Genocide Convention is a treaty between states that begins with “the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law”. So genocide is asserted already to be a crime under international law. By article I, “The contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and to punish.”
Then article II provides the definition of genocide. The material parts are:
In the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
Articles III-VII make clear that genocide and related offences - incitement or conspiracy to commit genocide, etc - are crimes committed by individuals, and states undertake to criminalise and to punish these crimes. Article VIII authorises states to apply to the UN bodies for action to prevent or suppress genocide: this is commonly useless due to the veto powers of the permanent members of the Security Council. Article IX grounds the jurisdiction of the ICJ:
Disputes between the contracting parties relating to the interpretation, application or fulfilment of the present convention, including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
According to an old tag, actus non facit reum, nisi mens sit rea (‘an act does not create guilt, unless the mind is guilty’). Like most serious crimes, genocide thus contains both a conduct element and a mental element.
That the present Israeli government and armed forces command have performed the conduct element of the offence of genocide is not in doubt: they have killed members of “a national, ethnical, racial or religious group” (Palestinians in Gaza), “caused serious bodily or mental harm” to others, and are presently “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
The issue disputed is whether the members of the Israeli government and high command have the necessary mental element of genocide: “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
The Israeli ad hoc judge, Aharon Barak, argues that South Africa “has wrongly sought to impute the crime of Cain to Abel” before embarking on autobiographical remarks in relation to the holocaust, a defence of Israel as a “democracy” and its general conduct of military operations. On this basis Barak invites the court to disregard the public statements of intent to get rid of the Palestinian population of Gaza made by several Israeli ministers (on which the ICJ relied for its judgment of plausibility) on the basis of pro-forma statements to the contrary by other officials. He ends by urging the acceptance of Israel’s ‘right to self-defence’, and the inevitability of collateral damage and civilian casualties.
The argument that, since Europe’s Jews were the victims of genocide in 1941-45, Israel cannot be guilty of genocide now, is deeply unsatisfactory. It is notorious that people who were abused as children are more likely to abuse their own children; and people who have been bullied in youth are prone to externalise their insecurity in aggression.4 Why should we not suppose that Jews being victimised by the German state makes the Israeli state more prone to victimise others?
The dissent of Judge Julia Sebuntinde, while lacking the personal and historical special pleading, similarly downplays the public ministerial statements and rests on Israel’s ‘right to self-defence’. This argument is problematical, given the radical disproportionality of Israel’s military operation: like, on a radically different scale both of assault and of response, the man who when hit in the face responds by shooting dead his assailant.
It also ignores a fundamental point. Assume for the sake of argument that the Six Day War in 1967 was a war of self-defence (an argument which depends on pre-emptive use of force in response to threats counting as self-defence, which is rather questionable). But on this assumption, as soon as Israel started to annex territory and to plant settlements in the occupied territories, it became (to draw an analogy with English law) a trespasser ab initio (from the beginning), as where an original lawful entry on land is turned into trespass by damaging the property. Israel thus converted its self-defence (if it was self-defence) into a war of aggression in violation of the Charter of the Nuremberg War Crimes Tribunal and the UN Charter.5 Hence, until it revokes the annexations and withdraws the settlements, Israel has no more right to self-defence than a burglar has against the householder’s efforts to expel him.
That does not alter the fact that the proof of “intent to destroy” is problematic. The mental element of crimes has been a persistent problem ever since legal systems began to allow the accused to give evidence on oath in their own defence: it is just too easy to swear to an innocent state of mind, and too difficult to rebut it. The result is that criminal procedure becomes enormously dilatory, is driven towards fraud or coercion to extract confessions in the police station and towards plea-bargaining, and is incapable of convicting more than a very few among wealthy offenders who can afford high-powered lawyers.
“Intent to destroy” in genocide is, moreover, a dolus specialis - a specific intent going beyond general guilty intent. By analogy, ‘Coventry’s Act’ 1671, passed in response to a 1670 attack by royal guardsmen on an MP, created a new crime, but required not merely cutting in the face, but also lying in wait and an intention to mutilate; the act was as a result practically useless. It is clear enough from Israel’s conduct that there is an intent to kill many thousands of inhabitants of Gaza, but proving the dolus specialis of genocide is much more difficult.
The court found not proof, but merely plausible evidence, and it is still possible that by the time the case comes to final judgment (and the war and the accompanying bad press is over) the Israeli argument, that Israeli ministers’ genocidal statements are to be read down because of contrary statements and the ‘self-defence’ context, may be accepted. But at this stage it was enough that 14 out of 17 judges found plausible evidence of genocidal intent.6
The actual order of the court is very limited:
(1) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of article II of this convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;
(2) The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;
(3) The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
(4) The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;
(5) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of article II and article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;
(6) The State of Israel shall submit a report to the court on all measures taken to give effect to this order within one month as from the date of this order.
This really amounts to no more than an order that Israel shall comply with the 1948 convention (which Israel claims it is already doing). Again to draw an analogy with domestic law, it is as if a driver is brought into court having intentionally driven his vehicle into a bus queue, killing several pedestrians, and the court orders merely that the defendant must in future drive carefully and in compliance with the Road Traffic Acts.
This is not criminal prosecution, and that point is fundamental. South Africa sues Israel for non-compliance with the 1948 Genocide Convention. Although the convention is taken to create obligations erga omnes - towards everyone - and to codify an international crime, jurisdiction for such a crime would not be in the ICJ, but in the International Criminal Court created by the Rome Statute in 2002, to which Israel is not a party. South Africa’s claim against Israel is essentially for breach of the contract between states created by the 1948 convention. The role of the identification of the duties under the treaty as obligations erga omnes is to justify South Africa claiming for breach of this contract in spite of the fact that South Africa has suffered no loss as a result of this alleged breach.
In this context, “provisional measures” are the equivalent of an English ‘interlocutory injunction’, which is put into force to prevent damage, or further damage, pending trial of the claim. In English law under the test in the patent infringement case American Cyanamid v Ethicon (1975) there has to be a “serious issue to be tried”, and beyond that the decision is on the basis of the “balance of convenience”. Before 1975 a “prima facie case”, or “sufficient probability of right” was required. The requirement of “plausibility” in the ICJ’s case law seems to fall somewhere between “serious issue to be tried” (which is minimal) and “prima facie case”. The point of this observation is that the ICJ’s decision did not require strong evidence of a danger of genocide, but barely arguable evidence of this danger. To deny that there is strong evidence of Israeli genocidal intent is certainly possible (it depends on the relative weight to be given to contradictory Israeli government statements). To deny that there is plausible evidence, to support minimal provisional measures, would risk the court looking foolish or biased.
At this point the character of the International Court of Justice itself comes into play. The United Nations is not a world state, and the ICJ is not a state court in the way that the English or other courts are. Suppose that you refuse to implement a decision of the High Court: the sheriff’s bailiffs will come to levy execution on your property. If you use sufficient force to resist the bailiffs, the police will come. If you use sufficient force to resist the police, police marksmen will shoot you. At the highest level of effective resistance, where you are able to stand off the police marksmen, the army will be sent in, as in the Bogside in Derry in 1969, or tank-armed police, as in the FBI in Waco, Texas in 1993.
Contrast the ICJ. If Israel refuses to implement its minimal decision, the only enforcement powers it has are through the UN Security Council. Here, no doubt, the USA would veto action against Israel. Again analogising domestic law, it is as if before the bailiffs went in to enforce a High Court judgment, the UK cabinet had to agree (and certain important members could veto it). The nearest approach we have had to that sort of judicial system in England was King John’s recorded practice of accepting money, etc to expedite or stop litigation, in 1205-15.
The reality is that, in spite of its name, the ICJ is an arbitration institution, whose decisions have effect so far as state parties agree to be bound by them. Arbitration between states as an alternative to war goes back to classical antiquity, though it was temporarily marginalised by the Roman empire turning the states that practised it into local government institutions. It reappeared in the 1100s and has continued to be practised down to modern times. The Hague Peace Conference of 1899 led to the establishment of a ‘Permanent Court of Arbitration’ (PCA) that still exists.7
The establishment of the League of Nations in 1920 was a product of US ascendancy, resulting from the decisive role of the US in German defeat in 1918, and US president Woodrow Wilson’s political ideology, though US adherence to the League was defeated in Congress. Creating a new ‘Permanent Court of International Justice’ was part of this ideological presentation of the League of Nations as a global rule-of-law regime. The name was ideological; having no direct enforcement powers, it was just as much an arbitration institution as the PCA. When the UN was set up, the ICJ was created as a successor to the PCIJ, which had stopped functioning in 1939. Its name is just as ideological, and it is just as much an arbitration institution in reality.
It is, nonetheless, an institution - more than just a name. And it does significant practical jobs. Yes, states cannot be coerced to give effect to the ICJ’s ‘judgments’ unless the USA is prepared to do the job. (Of the other permanent members of the Security Council, the theoretical veto powers of the UK and France will not be exercised against US action, and those of China and Russia are more narrowly used in defence of Chinese or Russian immediate state interests). But there are many disputes between states in relation to which the states involved would rather avoid war; and the ICJ has dealt with 152 contentious cases and 27 advisory procedures in 1947-2021, and has 20 cases currently pending before it.8 Its effectiveness in this activity depends wholly on the willingness of states to accept them, and hence on the perception (justified or not) that it is broadly impartial between states and reaches decisions on legal grounds.
Hence a minimal decision in the Gaza genocide case. On the one hand, to throw the case out altogether on the grounds offered by Israel and its supporters would, for the reasons given above, look foolish or, more probably, biased. The point is made by Judge Xue Hanqin in his declaration concurring with the majority:
Over 60 years ago, when Ethiopia and Liberia instituted legal proceedings against South Africa for breach of its obligations as the mandatory power in south-west Africa, the court rejected the standing of those two applicants for lack of legal interest in the cases. This denial of justice gave rise to strong indignation of the member-states of the United Nations against the court, severely tarnishing its reputation.
On the other hand, an actual call for a ceasefire - the only sort of “provisional measure” that would actually make much difference - would be denounced and ignored by Israel, and denounced by the USA. The result would again be to make the court ineffective in its routine business.
I have already made the point that the more ‘serious’ end of the press in the US has been more favourable to the decision than The Times, and so on, and suggested that this is about the circumstance that the Biden administration is still promoting the ‘two-state solution’, while, on the other hand, the anti-Semitism smear campaign is fundamental to securing unequivocal US control of European politics.
In this context it is worth mentioning the Alliance for Workers’ Liberty (better called ‘Atlanticists for Workers’ Loyalism’). The January 17 issue of its paper Solidarity carried an article headlined “We look to solidarity with the movement in Israel, not the ICJ”. Solidarity, of course, continues to report the (small) anti-war protests in Israel. But why not the ICJ? “There are good reasons to be wary about insisting Israel’s war represents ‘a genocide’.” And so on. And “It remains the case that the social forces with the best immediate chance of imposing restraint on Israel come from within its own society.”9 Regrettably, however, this is deeply unrealistic. Small protests in Israel in favour of ‘peace’ have been ongoing for decades. They have shown no sign at all of becoming mass-scale, and the electoral thermometer of Israeli politics over the same period shows an ongoing and increasingly sharp dynamic towards nationalism and open aggression.
In this context, the symbolic effects of the ICJ’s very minimal decision may turn out to be profoundly important.
I stated earlier that at the end of the day the point of US support for Israel is for the USA to hold veto control of the Middle East, and thereby veto control of the oil taps. As General Michael ‘Erik’ Kurilla, commander of the US Central Command (Centcom, covering the Middle East) put it in March 2023, “God forbid there’s ever a conflict with China, but we could end up holding a lot of their economy at risk in the Centcom region.” The same is true of Chinese military capabilities, and of those of France, Germany, Japan …, since oil drives the machinery of 20th/early 21st century war.
Going back, the point of the November 1917 Balfour Declaration, and lying behind it the Sykes-Picot agreement of May 1916 and the associated negotiations, was to secure British control of Palestine, ‘TransJordan’ and Iraq, with the same aim (the British also expected to control southern Iran by way of their agreements with tsarist Russia as to spheres of influence). The ‘Jewish homeland’ in Palestine provided a counterweight to France’s historic claim to be the protector of the Levantine Christians and of the ‘holy places’.10
But the British found in the 1930s that the cost of the “little loyal Jewish Ulster amid the enveloping hosts of Arabism” outweighed its advantages, and turned against the Zionists (who now found French backing against the British). This was not just a matter of the ‘Arab revolt’ in Palestine itself in 1936-39, but that this developed alongside and fed into the emergence of pan-Arabist nationalism also in Egypt, Iraq and Syria. The context also included rising nationalism in India. The British did not actually lose control, but the cost of keeping control rose substantially in a period in which the UK state was under substantial fiscal pressure.
The present situation is one in which the USA risks finding itself in a position analogous to Britain in the 1930s, and hence facing, if it chooses not to rein in the Zionists, full-scale US military intervention in the region, which will probably involve major increases in military expenditure and quite likely aims undeliverable without large numbers of US boots on the ground. And hence, in turn, the US may perhaps consider sacrificing the Zionists (at least to the extent of forcing them to back down and accept a negotiated deal over Gaza).
Meanwhile, in spite of the rightwing press’s attempt to say of the ICJ decision, ‘Move along now - nothing to see here’ (a policy also adopted by the AWL), the fact that there was a wide concurrence that the ICJ should not throw out South Africa’s claim, that it should recognise a real risk of genocide, potentially undermines the whole anti-Semitism smear campaign and assists the legal defence of protestors against police silencing efforts.
So, however minimal the ICJ decision may be in direct legal impact, its symbolic impact should be unreservedly welcomed.
The decision and the dissents are linked at www.icj-cij.org/case/192/orders. More of the proceedings can be viewed at www.icj-cij.org/case/192.↩︎
See, for example, on child abuse www.psychologytoday.com/gb/blog/the-athletes-way/202105/breaking-the-cycle-of-childhood-abuse; on bullying www.ncbi.nlm.nih.gov/books/NBK390414 (subhead: ‘Externalising problems’).↩︎
Principles of international law recognized in the charter of the Nürnberg tribunal and in the judgment of the tribunal 1950; UN Charter: www.un.org/en/about-us/un-charter/full-text, Articles 1 (1) and 2 (4).↩︎
Judge Nolte did not find plausible evidence of genocidal intent, but voted with the majority, because the provisional measures merely required future Israeli compliance with the convention, rather than calling for a ceasefire or sanctioning anything done so far.↩︎
ICJ Yearbook 2020-2021 (the most recent on the ICJ’s site), p2; www.icj-cij.org/pending-cases.↩︎
J Barr A line in the sand: Britain, France and the struggle that shaped the Middle East New York 2012.↩︎