Reader in Law
@soasLAW
author of Law & Revolution: Legitimacy and Constitutionalism After the Arab Spring. Editor-in-Chief, The Palestine Yearbook of Int'l Law
In this new article for the
@JournalGenocide
I argue that Israel's onslaught on Gaza has crossed the threshold of the military logic of defeating the enemy to the genocidal logic of elimination:
The legal case before the ICJ is turning into an epic legal battle of Global South vs. Global North, as evident from German and Canadian interventions, and previous US statements, during the 2nd day of the ICJ hearing: 1/17
Like in its submission, S.A. started by insisting on context: Nakba since 1948; ongoing denial of self-determination and right to return. 75-year apartheid, 56-year occupation, 16 year siege. It stated that decades of impunity have emboldened Israel to intensify its crimes
A momentus decision by the ICJ that is likely to start the political dynamics to end Israel's genocidal war on Gaza: there should not be an Israeli exception to the prevention of genocide.
Some initial thoughts:
Thus, should Israel argue it acted in Self-defence, S.A. already showed it has no application. It is irrelevant. o Nothing can ever justify genocide. No exceptions can be made in provisional measures that would allow Israel to violate Genocide Convention.
Minister of Justice reminded the world that violence and suffering did not begin on 7 oct. Palestinians have been subjected to violence and dispossession for 75 years, and for every day since 7 oct. That Gaza is occupied, because Israel has effectively controlled it.
South Africa a tightly argued, comprehensive, and compelling application. It has now supplemented that by a compellingly argued and powerfully presented oral presentation.
The obvious difficulty which such a view of "decline" is that it is ahistorical. Here is a reminder of some facts regarding Israeli army conduct in 1956 and 1967 wars that are available on a simple search: 1/5
Once considered the most capable military in the region, how did the IDF come to be associated with accusations of genocide, disproportionate violence, a lack of distinction between combatants & non-combatants, & a lack of discipline among its soldiers?
How does South Africa's ICJ application disrupt previous narratives about Israel's genocide?
One great virtue of the application is that it highlights context: This is a genocide perpetrated by an apartheid state. 1/5
It is excepted that Israel will show Oct 7 images, videos. But S.A. Minister of Justice and Vaughan Lowe both argued powerfully that regardless of Hamas actions Israel cannot commit genocide.
Unsurprising that Israel nominates Aharon Barak as its ad hoc judge in the ICJ case brought by South Africa.
In 2007 I wrote an article for the Harvard International Law Journal on Barak's legacy: 1/5
Aharon Barak, former Chief Justice of the Supreme Court of
#Israel
and nominated
@CIJ_ICJ
Judge ad hoc - who throughout his career refused to rule on the legality of Israeli colonization of occupied
#Palestinian
territory - is the epitome of judicial complicity.
In addition to intent evident from conduct, it argued that an "extraordinary feature of this case" is that Israeli leaders systematically and explicitly declared their genocidal intent, and that was repeated by soldiers on ground.
The argument that "we did not mean it" or "taken out of context" is "without merit" because a "distinctive feature of this case not silence but reiteration and repetition of genocidal speech in every sphere in Israeli state. Not fringes but embedded in state policy."
The overall strength of the presentation that followed lies both in its remarkable and harrowing detailing of the facts and in its anticipation of Israel's arguments, replying to them effectively.
This the first genocide in history where victims are broadcasting their destruction in the hopes that the world will save them. An assault on basic precepts of humanity in 90 days of hell. The world should be ashamed. Gazans' hopes for survival are in the hands of the court.
Thus a double argument:
1. Israel’s actions show systematic pattern of conduct from which genocide can be inferred. 13 weeks of evidence.
2. Evidence of genocidal intent is "chilling, overwhelming and incontrovertible."
This intent rooted in the belief that the enemy is not Hamas but embedded in the fabric of Palestinian life in Gaza. Israeli statements are not open to neutral interpretation or after-the-fact reinterpretations by Israel.
The difference between right wing Zionism and liberal Zionism is one of degree not kind: how many Palestinians they are willing to kill, and how much discrimination against the natives they are willing to tolerate: 1/7
Former member of Knesset, Michael Ben Ari, a veteran Kahanist who was one of the founders of Ben Gvir's party, "Jewish Power":
"Our enemy is not Hamas, it's not the rockets, our enemy is the Arabs in Gaza. As long as there are Arabs in Gaza, the State of Israel is under threat"
Israeli Channel 13 explains today the logic behind destroying everything (including the court and theatre) in North Gaza: to make it uninhabitable, to prevent people from returning!
#GenocideinGaza
CNN finally sheds light on Israel's shocking and barbaric torture chambers: thousands of people, detained for months:
Strapped down, blindfolded, held in diapers: Israeli whistleblowers detail abuse of Palestinians in shadowy detention center
More genocidal talk on TV channels in Israel: "There are no innocents. There is no population in Gaza, there are 2.5 million terrorists... All of them are terrorists... we should have killed 50,000 Gazans... Hamas is not the enemy, entire Gaza is the enemy"
Another argument that Israel is expected to make would seek to downplay the statements made by officials and public figures. But as S.A. argued effectively against this line.
The very reputation of international law hangs in the balance, said Ni Ghralaigh. The International community repeatedly failed in Rwanda, Rohingya, Gaza. Continues to fail Palestinian people despite genocidal rhetoric matched by the acts on the ground.
Big news:
The Republic of South Africa institutes proceedings against the State of Israel and requests the International Court of Justice to indicate provisional measures
This also should prompt reflection amongst al those governments and media outlets who supported Israel war, because they have been supporting a Genocide.
End.
The most powerful presentation was by the brilliant Blinne Ni Ghralaigh, who laid bare the catastrophic nature of the situation and made a compelling case, if there ever been one, for issuing measures to save Gazan lives.
Haifa University took the degree back from the MA student who wrote about the Tantura massacre in the ethnic cleansing of Palestine in 1948; Benny Morris wrote about the lack of credibility of oral history based on victims' testimonies... now it turns out the victims were right
1/3 “They silenced it. It mustn’t be told; it could cause a whole scandal. I don’t want to talk about it, but it happened. What can you do? It happened.” >>
Israel is also expected, like Myanmar in the case against Gambia, to claim that there is no dispute between the states and thus no jurisdiction for the court to intervene. Dugald's presentation rebutted that effectively. Recalling, e.g., that ICC referred Israel to ICC.
This is a case brought by a former colonised nation that was subjected to apartheid against a current settler colonial state that imposes an apartheid and is fully backed by the western governments and media that deny the fact of Isr apartheid. 2/17
Namibia has rightly called out Germany.
A German intervention in the proceedings will show:
(a) brazen western attitude of going all the way in support of Israel's decimation of Gaza & mass slaughter, & repeating dehumanising rhetoric against non-white populations 4/17
materials" is Gencodial. It is enough that they are capable of falling within Genocide convention. Referring to the issuing of measures in Gambia v. Myanmar case, he said that rights of palestinians in Gaza are no less worthy of protection by court.
Should the court fail to issue prov. meas., it will be a complete departure of long line of jurisprudence for the court not to order p.m. in this case.
The imminent risk compels the indication of prov. measures.
Without a halt to military activity there will be no end to the extreme situation in Gaza that turned to uninhabitable and place of death and despair, Blinne Ni Ghralaigh argued. Adding that
Overall, a very power presentation, and given the court's case law, and given the lower threshold required for issuing provisional measures, it will be very surprising if the court does not issue provisional measures against Israel. The question is which ones.
Should ICJ issues measures against Israel this will put every country that is a party to the Genocide Convention that they, like South Africa, need to discharge their obligations to prev ent Genocide and act against Israel's actions and protect Palestinians,
European & North American countries are on trial because they are complicit in the genocide; they have an interest in denying this a genocide. Germany's, Canada's statements are attempts to pressure the court before it issues provisional measures. 3/17
Max du Plassis made the case re convention rights and link to measures requested. He cited WTP that scale, severity, speed of destruction is unprecedented in Gaza. Reminded court that issuing prov. measures does not require that that the "only plausible interpretation of the
S.A. concluded presentation by stating that consequences of not issuing measures & not taking steps would very grave for the Palestinians in Gaza who remain at further risk of genocidal actions; undermine the integrity of convention, rights of S.A., and reputation of this court.
ICJ dismissed Israel's arguments re jurisdiction, it ignored Israel's attempts to obfuscate genocidal statements, it made no mention of Israel's argument re self-defence because it is irrelevant. Thus, it mocks the western mantra of "Israel has a right to defend itself".
Important development in the case of South Africa v. Israel:
Colombia intervenes in support of South Africa's case, claiming that the case against Israel's violation of the Genocide Convention is compelling.
Here are some highlights from the submission:
PRESS RELEASE:
#Colombia
files a declaration of intervention under Article 63 of the
#ICJ
Statute in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (
#SouthAfrica
v.
#Israel
)
(b) hypocrisy because western governments that intervened in the Myanmar case have lowered the bar and argued for expansive definitions, and now they want to walk back, and are concerned re "politicisation" of Genocide Convention 5/17
Vaughan Lowe anticipated Israel's argument that that orders are not necessary: Israeli statements do not prevent prov. meas. as per case law; efficacy doubted because Israel denies it did anything wrong; and risk if not issued is appalling.
(c) a fitting occasion for South Africa to highlight western governments' own genocidal and colonial history, that conveniently erases such genocidal actions like Germany's in Namibia. 6/17
Namibia rejects Germany’s Support of the Genocidal Intent of the Racist Israeli State against Innocent Civilians in Gaza
On Namibian soil,
#Germany
committed the first genocide of the 20th century in 1904-1908, in which tens of thousands of innocent Namibians died in the most
Article III:
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide...
Pop singer Narqis sings with Israeli soldiers for an extermination and colonization which will be exemplary and inspire other countries to copy it: “We’re finishing off Gaza! We’ll return Gush Katif [former Israeli settlements in the Gaza Strip]! We’re a light unto the nations!”
South Africa has pierced and cracked the political wall-to-wall support to Israel's savage war in the West. Western media barely mentioned genocidal statements before S.A. initiated its litigation.
Canadian & German interventions mean that these western states are intent on denying apartheid, denying genocide, denying the universal application of the law, & pledging support a modern-day colonial state, depriving millions from freedom, equality, and return to homeland. 9/17
The Israeli Knesset just enacted "Al-Jazeera Law". It allows the government to shut down foreign media outlets and block it from broadcasting.
They killed journalists. Prevented media from going to Gaza. Banned human rights experts.
I wonder why.
As you read this report, that Gaza is now uninhabitable, recall the Israeli statements & conduct that South Africa's ICJ application referred to. This report also confirms the urgency cited by South Africa for issuing provisional measures against Israel's genocide
Thread 1/7
UN warns Gaza is now ‘uninhabitable’ as war continues
Humanitarian chief fears ‘famine is around the corner’ with 85% of population displaced and more than 20,000 dead
Law and politics have always been intertwined & selectivity is endemic. Legal scholars who have exposed international law's complicity in colonialism will be watching South Africa v. Israel to reflect on the question whether international law can ever be "decolonised". 8/17
Palestinians moved from armed struggle to negotiations in Oslo, then to ratify int'l conventions after negotiations stalled, seeking legal measures, but were failed by the ICC, & the ICJ Wall wasn't implemented. Will int'l law fail them again?
Palestine is a litmus test. 17/17
EU, UK, German, and US Officials who met and indulged Herzog, Israel's president, and rushed to photos with Yoav Gallant, now need to confront the fact that their statements are exhibit A in the genocide case. Will European officials meet Israel's president now?
(d) a fitting occasion to examine Germany's complicity in the Genocide in Gaza (a violation of the Genocide Convention). Here is a reminder of one FT article from November: 7/17
Is Zionism colonial or anti-colonial?
This propagandist ignores what Zionist leaders declared repeatedly throughout the history of Zionism.
Here are some examples of statements foregrounding the colonial nature of Zionism: 1/10
The court accepted that South Africa made a strong case that is compelling enough to proceed to the merits stage, thus putting all states on notice that there is possible situation of genocide and there is a duty to prevent it.
Magazines versed in war propaganda like
@theconomist
called the S.A. application "flimsy", US, Canadian, German, UK officials and spokesmen dismissed the "premise" of the S.A. case. Now the ICJ shows they were pathetic.
Judge ad hoc Aharon Barak takes a solemn declaration to act impartially.
On November 1, Barak told the Globe and Mail:
“I agree totally with what the government is doing”
Make of that what you will.
Now the ICJ is also contributing to the crumbling of pathetic and uncritical narrative that western states and media have adopted since Oct 7th. Western narrative over the war is over!
Much ado about nothing? A thread on the ICJ president comments:
The amount of sophistry in defending Israel's crimes is just astounding.
But it's also a lesson in how the technical can obscure rather illuminate reality:
The Question of Palestine illustrates that colonialism is not a matter of past but present. In the Chagos Case the ICJ invoked the question of de-colonisation, although it neglected that in the Apartheid Wall case. 10/17
Totally normal: for two months this journalist has been advocating ethnic cleansing and mass slaughter live on TV: here, today, he is saying Israel should have killed 100 thousand Gazans from the beginning. Does not care if innocent civilians get killed. 1/2
You do not need to be an academic to know that the "purity of arms" and "most moral army" are mere fictions. All major 4 onslaughts on Gaza since 2000 were grossly disproportionate & violated int'l law.
More interesting question is how & why have these facts been ignored? 5/5
In the case of Namibia, after decades of S.A. Apartheid occupation, and after 4 cases at the ICJ, Namibians despaired from international law and waged an armed liberation struggle til they achieved independence. 16/17
Should Israel dismiss the case as it dismissed before the ICC opening an investigation, and as it dismissed HRW/ Amnesty reports on apartheid, it will confirm its status as a pariah state, a rogue state.
What does the ICJ ruling mean for western legal systems? It will increase the legal activism inside domestic states in Europe and US against arms trade and complicity in the genocide.
What does ruling mean for BDS? More efforts now need to be made to boycott Israeli academia and economy to pressure Israel to end the apartheid and end the genocide and grant equality and freedom to all.
Regarding lack of cease fire measure: 1. there was no cease fire order in the Myanmar case. 2. the Russia v. Ukraine case is not a genocide case. 3. Courts are reluctant to order measures that will not be enforced exposing their weakness.
Few comments and summary on the "State of Palestine" presentation today before the ICJ in the Advisory Opinion case regarding the legality of Israeli occupation:
The court recited the UN and UNRWA statements that were ignored and dismissed by Israel and its backers. It thus gives them more prominence and credence.
With Israel declaring that it will not accept an ICJ ruling on provisional measures that will seek to prevent it from destroying the remnants of Gaza will western states continue to shamelessly support a rogue state? 15/17
Will the ICJ succumb to an Israeli political narrative presented, backed by powerful western actors, that ignores apartheid and illegal occupation? Will they fail to come to the aid of a non-white people facing destruction after UNSC failed? 14/17
Revenge: Despite many explicit Israeli statements, much of the analysis of the mass slaughter in Gaza have avoided this Israeli objective, preferring to discuss flimsy invocations of military rationales. Here is a reminder of 4 explicit Israel statements at different levels:
The ICJ has before it another case (UNGA referral, Dec 2022) that can be a chance to examine what the "illegality of prolonged Israeli occupation" means? Colonialism and apartheid are part of the answer. 11/17
Will powerful states ignore the ICJ Wall stipulation that all states have a legal obligation to oppose Israel's violation of the Palestinian people's right to self determination? 13/17
The ICJ rejected Israel's claims regarding humanitarian assistance, thus Israel will have to show a major change, and ICJ order Israel should take immediate and effective measures to allow humanitarian assistance. This will require scaling down military actions and bombardment.
A joke called the Israeli army investigating itself: a division commander who destroyed Al-Israa university in Gaza 2 months ago, without authorisation from his superior, is disciplined by... a note in his file!
Genocide with no accountability.
Will the ICJ rule on the provisional measures & later the question of genocide while ignoring the other case in which they need to describe this phenomenon of "prolonged illegal occupation"? Will it again ignore the question of colonialism as it did in the Wall case 2014? 12/17
Any outcome today other than issuing provisional measures against the Israeli genocide will be the death knell for international law and international institutions. For 112 days we have seen Western hypocrisy and selectivity justifying mass slaughter of a trapped population 1/9
After 6 months of highlighting Israeli trauma, western media writes about Palestinian trauma: "PTSD & continuous traumatic stress disorder.. cannot be changed unless the root of the problem is solved by ending 74 years of living under occupation".
What does the ruling mean to Zionism? Zionists treated 7 Oct as an attack on all Jews in the world and defended Israel against all charges. This shows that zionism has an eliminations logic that gets accentuated in such conditions. Zionism is racism and genocide.
Propaganda outlets like
@nytimes
who published puff pieces, claiming Aharon Barak the Israeli judge is not an emissary of his state, also stand disgraced. He was in a tiny minority.
What does the ruling mean for anti-war demonstrations in London and elsewhere? It will give them backing and invigorate them despite the tabloids and corrupt pro-genocide political class from Labour to Tories.
The order to cease from genocidal acts including those that are calculated to bring about the destruction of Palestinians in Gaza, having cited famine and mass displacement, means also that Israel have to drastically change its military action.
In 1995 the NYT published that Israeli veterans stated that they killed prisoners of war in 1956. An Israeli historian said that around 300 unarmed civilians and POWs were killed in 1956 and 1967 wars. 2/5
20,000 under the rubble, the Civil Defence service in Gaza estimates. This brings the number of those killed by Israel to more than 50,000 Palestinians.
If a third of those under the rubble are children, then around 20,000 children have been killed.
#Genocide_in_Gaza
Day 187
مهمة شاقة ومُعقدة بسبب نقص التجهيزات.. الجزيرة ترصد صعوبات انتشال جثامين الشهداء العالقة تحت الأنقاض في قطاع غزة، التي تقدر أعدادها بنحو 20 ألفا وفق جهاز الدفاع المدني في القطاع | تقرير: هاني الشاعر #الأخبار #حرب_غزة
Ariel Sharon used to remind his Zionist critics of their own crimes. Here is an except from Ronan Bergman book: Sharon, after Sabra and Shatila massacres, reminding Rabin and Peres of their crimes in Tal Al-Zaatar: 2/7
A question follwoing the ICJ ruling (on the risk to genocide in Gaza) to Western universities and academics:
What does it mean for the *liberal* character of these universities that not a single one called for a cease fire?
Delusions of strongmen and rogue states: compare between Netanyahu, WSJ op-ed in 2023 with Sharon NYT op-ed in 1982:
It seems, Israeli talking points have not changed much between 1982 (vs. PLO) and 2023 (vs. Hamas). Here are some highlights: 1/6
The increase in internal disagreement over the war and external opprobrium against Israel, following the ICJ order, is likely to create the dynamics that may bring a prompt end to the genocidal war.
This ruling comes at a time in which there is an increase in the controversy over the war (war aims not achieved, hostages families protests, start of anti-war demonstrations, accusations that Netanyahu is prolonging the war for his political survival).
Too many pretend that what happened in 7 Oct is an 'external' attack, crossing 'sovereign border' of a peaceful state; a war between 2 states.
Not South Africa: Gaza is occupied; an impoverished Ghetto; was subjected to 4 major highly asymmetrical onslaughts since 2000. 3/5
The depravity of Zionism in one oped: Morris, who said Ben-Gurion should have finished the job (of ethnic cleansing) in 1948, now says Netanyahu should finish the job, no matter the human toll!
Now that ethnic cleansing is discussed openly by the Israeli government, recall that Rehavam Ze'evi, the prominent advocate of "transfer" grew up in Haganah and Palmach. He said: "All zionism is transfer. If transfer is immoral -- all zionism is immoral." 3/7
"If indeed western reporters begin to enter Gaza then for sure this will be a big headache for Israel and Israeli hasbara"
Israeli Channel 13 reflects on CNN
@clarissaward
reporting