Does this mark a coup de grâce for the ‘rules-based international order’?

First published in Canadian Dimension on January 30, 2024

On January 26, the International Court of Justice (ICJ) delivered an interim ruling in response to South Africa’s charge that Israel is committing genocide in Gaza. This ruling required Israel to stop its military from engaging in actions contrary to international law, and to take immediate steps to ensure humanitarian aid reaches Palestinian civilians in Gaza. Within 48 hours Canada and other “Western democracies” cut off funding to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the organization upon which effective provision of aid to Gaza depends.

This is a clarifying moment in modern history—the day the “rules-based international order” that emerged from the ashes of the Second World War was given the coup de grâce, not by its enemies but by its authors. The gloves were off and so were the masks.

The ICJ ruling

Finding that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” (§72), the ICJ imposed six “provisional measures” on Israel with the aim of “preserving … the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts” (§59). It stressed that “there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision” (§74, my emphasis).

These measures required, among other things, that Israel:

• “take all measures within its power to prevent … (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” (§78)
• “ensure with immediate effect that its military forces do not commit any of the above-described acts” (§79)
• “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” (§80) (my emphasis)

Though the court has no means of enforcing its orders, they are binding upon all states who have accepted its jurisdiction, including Israel—and Canada.

The ICJ, which was created in 1946, is the principal judicial organ of the United Nations and the world’s highest court for adjudicating disputes between states. These measures were agreed by majorities of 16 to one or 15 to two by an international panel of judges elected by the UN General Assembly and Security Council, several of whom come from countries whose governments have so far supported Israel in its conflict with Hamas, including the US, Germany, France, and Australia. The charge by Israeli senior ministers that the court is “antisemitic” is risible—though no more than we have come to expect from Israel’s supporters, who have weaponized the term “antisemitism” to tar any and all criticisms of the Israeli state and its actions in Gaza.

Canada’s response to the ICJ ruling

On the same day as the ICJ issued its ruling, Foreign Affairs Minister Mélanie Joly responded on behalf of the Canadian government in a brief statement asserting that: “Canada supports the ICJ’s critical role in the peaceful settlement of disputes and its work in upholding the international rules-based order.” It continued: “Our support for the ICJ does not mean that we accept the premise of the case brought by South Africa … Canada will continue to support Israel’s right to exist and defend itself, in accordance with international law… Canada remains deeply concerned about the scale of the humanitarian crisis in Gaza and the ongoing and serious impacts on Palestinian civilians.”

There are a number of puzzling features of this statement. That Canada supports the ICJ should go without saying, because Canada is subject to the court’s jurisdiction. It is irrelevant to say “our support … does not mean that we accept the premise of the case brought by South Africa,” since if the court’s final decision turns out to be in South Africa’s favour, Canada is bound to enforce it whether it agrees with it or not. The only possible reason for including this sentence at all is to cast doubt on the validity of the interim ICJ verdict, without explicitly challenging it.

While the statement affirms “Israel’s right to exist and defend itself, within international law,” nothing in the ICJ ruling questions this. Joly is dragging us away from the court’s sole concern—which is whether or not Israel is committing genocide in Gaza—to Israel’s preferred framing of its actions as self-defense. In the meantime, the statement blithely overlooks the fact that the ICJ ruling says that it is “plausible” (§54, 66, 74) that Israeli actions have breached international law and gone beyond what is legally permissible by way of self-defense.

Additionally, the statement insists that “Nothing can justify Hamas’ brutal attacks on October 7, including the appalling loss of life, and the heinous acts of violence perpetrated in those attacks, including sexual violence.” Hamas may well have committed heinous war crimes on October 7, though many of the more lurid claims, including of sexual violence, remain unverified. But once again, this was irrelevant to the ICJ ruling since it was Israel, not Hamas, that was on trial. This is typical of the way Western governments and media have repeatedly raised the October 7 attack to justify and/or deflect attention away from Israel’s subsequent actions in Gaza.

Most importantly, Joly’s statement does not even mention the provisional measures mandated by the court, beyond stressing the obligation on both Israel and Hamas to “facilitate the rapid and unimpeded access of essential humanitarian relief for civilians.” Instead, it conditions what the ICJ has mandated Israel to do immediately and unconditionally upon a “sustainable ceasefire,” in which “Hamas must release all hostages, stop using Palestinian civilians as human shields, and lay down its arms.” The importance the ICJ attached to immediate implementation of its provisional measures is underlined by the fact that it required that “Israel must submit a report to the Court on all measures taken to give effect to this Order within one month” (§82).

Despite Canada’s proclaimed support for the ICJ process, then, Joly is in practice disregarding the binding interim ruling that has resulted from this process and the findings on which it rests.

How is this remotely consistent with Canada upholding “the international rules-based order”?

The humanitarian catastrophe in Gaza

The ICJ ruling pulls no punches in its summary of the “catastrophic humanitarian situation in the Gaza Strip” (§72):

The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale … At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating (§70). 

The ruling quotes UN data showing that between October 7 and January 26, 26,083 Palestinians were killed by Israeli attacks in Gaza, some 70 percent of them women and children. Thousands more are missing under the rubble. During the same period, 64,487 people were injured and 1.7 million permanently displaced. Over 60 percent of Gaza’s housing units were destroyed or damaged, along with 378 educational facilities, 161 mosques, and 122 ambulances. Only 14 of Gaza’s 36 hospitals were left even partially functioning.

The ICJ was particularly concerned about the imminent risk of famine, given Israel’s continuing blockade in which very little aid was getting though:

An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing catastrophic conditions: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident. (§48)

Since then, the humanitarian situation has gotten worse.  As of January 29, at least 26,637 people had been killed and 65,387 wounded in Israeli attacks on Gaza since October 7—hundreds of whom have died since the ICJ ruling was issued. The carnage continues, with no sign of Israel implementing the ICJ orders to stop killing—or of Canada demanding that Israel do so.

The attack on UNRWA

On the same day as the ICJ delivered its ruling, UNRWA Chief Philippe Lazzarini announced that in response to Israeli allegations that some UNRWA staff had been involved in Hamas’s October 7 attack, “To protect the agency’s ability to deliver humanitarian assistance” he had “taken the decision to immediately terminate the contracts of these staff members and launch an investigation in order to establish the truth without delay.” UN Secretary General António Guterres confirmedthat 12 UNRWA employees had been implicated by Israel.

The timing strongly suggests this was a distraction on Israel’s part designed to deflect attention away from the ICJ ruling, but it also had other—and potentially genocidal—consequences.

Alongside the US, the UK, Australia, New Zealand, Japan, Germany, Italy, and several moreEuropean countries, Canada responded to Lazzarini’s announcement by immediately suspending its contributions to UNRWA. To their credit, Ireland, Scotland, Spain, Luxembourg, and Norway have refused to join this boycott. Lazzarini was appalled:

It is shocking to see a suspension of funds to the Agency in reaction to allegations against a small group of staff, especially given the immediate action that UNRWA took by terminating their contracts and asking for a transparent independent investigation…

UNRWA is the primary humanitarian agency in Gaza, with over 2 million people depending on it for their sheer survival.   Many are hungry as the clock is ticking towards a looming famine. The Agency runs shelters for over 1 million people and provides food and primary healthcare even at the height of the hostilities… 

It would be immensely irresponsible to sanction an Agency and an entire community it serves because of allegations of criminal acts against some individuals, especially at a time of war, displacement and political crises in the region.

Twenty-one international NGOs, including Oxfam and Save the Children, have since written that “we are deeply concerned and outraged that some of the largest donors have united to suspend funding for the United Nations Relief and Works Agency … [which] will impact life-saving assistance for over two million civilians, over half of whom are children, who rely on UNRWA aid in Gaza.

Their joint statement goes on to note that:

152 UNRWA staff have already been killed and 145 UNRWA facilities damaged by bombardment. UNRWA is the largest humanitarian agency in Gaza and their delivery of humanitarian assistance cannot be replaced by other agencies working in Gaza. If the funding suspensions are not reversed we may see a complete collapse of the already restricted humanitarian response in Gaza.

The time of monsters

This barbaric collective punishment of 2.2 million displaced and desperate Palestinian survivors of Israel’s relentless bombardment, because of the (alleged) crimes of 12 out of 13,000 UNRWA employees in Gaza, is a perfect metaphor for the entire surreal obscenity of this war.

According to official Israeli figures, the final death toll from Hamas’s October 7 attack was “695 Israeli civilians, including 36 children, as well as 373 security forces and 71 foreigners, giving a total of 1,139 deaths,” only two of whom were infants (pace the widely reported but now wholly discredited “40 beheaded babies” allegation).

Israeli media have reported that an unknown but substantial number of these deaths were caused by friendly fire, either as a result of the chaotic conditions on the morning of October 7 or as a result of implementation of the Hannibal Protocol which authorizes taking all necessary steps, including firing, to prevent hostages falling into enemy hands. Both first-hand testimony and visual evidence (destroyed buildings, burned-out vehicles) suggest that many of the deaths in Kibbutz Be’eri and the Nova music festival were caused by aerial weaponry or tank shells that Hamas did not possess. Some of the more gruesome images were in turn employed in Israeli propaganda.

The full truth about October 7 will probably never be known. What is beyond any dispute is the monstrous disproportionality of Israel’s response. For every individual killed in Israel on October 7, 23 Palestinians have been killed in Gaza; and for every Israeli civilian killed on October 7, 37 Palestinians have been killed in Gaza. But we live in that time of monsters, when the old world is dying and the new world struggles to be born.

I do not understand how it is in Canada’s interest to be seen as colluding in what may plausibly be genocidal actions by Israel in Gaza. We refused to follow the US into the Vietnam War or the 2003 Iraq War. Why are things so different this time? What is so special about Israel that we are willing to defy the ICJ and undermine the international rules-based order to protect it—contrary to our own position on previous ICJ genocide cases like those of Myanmar and Ukraine?

I do not pretend to have the answers. But I very much fear that they may lie in a deep-seated racism that does implicitly regard Palestinian, Arab, and Muslim lives as less valuable than those of white people. The contrast between the Trudeau government’s responses to the war in Ukraine and Gaza is glaring. But like Israel and the US, Canada is a settler colony, built upon the dispossession of its Indigenous inhabitants. When the chips are down the masks come off.

Is Benjamin Netanyahu about to cross his Rubicon?

First published in Canadian Dimension March 14, 2024

Seven weeks have now passed since the International Court of Justice (ICJ) in The Hague ruled that South Africa’s accusation that Israel was committing genocide in Gaza was “plausible.” A final verdict may take years. But on January 26, the ICJ imposed a number of “provisional measures” aimed at “preserving … the right of the Palestinians in Gaza to be protected from acts of genocide” (ICJ report, ¶59).

By a majority of 15 judges to two, the world’s highest court instructed Israel among other things to take “all measures within its power” to prevent:

(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 (¶78). 

Noting the “catastrophic humanitarian situation in the Gaza Strip” (¶72) in which “an unprecedented 93 percent of the population in Gaza is facing crisis levels of hunger” (¶48), the judges further ordered Israel to:

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 (¶80). 

In this case, the majority was 16 to one, with even the judge Israel appointed as its representative for this case concurring.

As international human rights lawyer Akila Radhakrishnan observed, while the court did not mandate a ceasefire (it could hardly do so when it has no jurisdiction over Hamas as a non-state actor), it is difficult to see how these objectives could be achieved without Israel “halting or at least drastically curtailing its military operations.”

Responding to the ICJ judgment, Benjamin Netanyahu fumed that “the very claim that Israel is committing genocide against Palestinians is not just false, it is outrageous, and the court’s willingness to discuss it at all is a mark of disgrace that will not be erased for generations.” Other senior Israeli politicians dismissed not only South Africa’s charge of genocide but even the court itself as “antisemitic”—a term that is now bandied about so prodigally that it is in danger of losing all purchase on reality.

The carnage continues

Though ICJ rulings are supposed to be binding on all UN member states, Israel has to all intents and purposes ignored these orders and carried on its military campaign in Gaza regardless.

By March 11, the beginning of the Muslim holy month of Ramadan, the Palestinian death toll in Gaza had risen from the 25,700 cited in the ICJ report (¶46) to 31,112, with a further 72,760 wounded. These are confirmed deaths of named victims, compiled by Gaza’s health ministry. The IDF’s degradation of Gaza’s health services—as of March 9, Israeli forces had destroyed 155 health institutions and rendered 32 out of the strip’s 36 hospitals completely or partially out of service, killed over 400 health care workers, and abducted over 110 others—has made reliable death counts increasingly difficult, and the true figure is likely to be substantially higher.

If we include people missing and presumed buried under the rubble, the total rises to over 39,000. US Defense Secretary Lloyd Austin recently admitted that over 25,000 women and children alonehave been killed in Gaza since October 7. According to the UN, the Israeli offensive has killed more children (12,300) “in just four months of fighting than in four years of armed conflicts around the world combined.”

Genocide is not only measured in numbers of deaths but in the deliberate creation of “conditions of life calculated to bring about [the group’s] physical destruction in whole or in part.” As of March 5, Israeli actions had completely destroyed 106,000 Gazan homes and partially destroyed 250,900 others, as well as destroying or damaging 2,120 industrial facilities, 432 schools, 621 mosques, 279 health care facilities, and 175 press headquarters. In its determination to control the flow of information out of Gaza, the IDF had killed at least 95 journalists and media workers.

The Palestinian Ministry of Culture reports that out of 320 listed archaeological sites and buildings of cultural and historical significance, including old mosques, churches, cemeteries, museums, libraries, and archives, 207 have been reduced to rubble or severely damaged by Israeli strikes. Among them are the Orthodox Church of Saint Porphyrios, which is believed to be the world’s third oldest church; the 12th-century Great Omari Mosque, the Al-Qissariya medieval market, and over 140 other notable historic monuments in Gaza’s Old Town; and the Pasha’s Palace, which served as the governor’s residence during the Mamluk and Ottoman periods of Palestine’s history.

All of Gaza’s 12 universities have been destroyed. Al-Israa University in southern Gaza was blown up 70 days after the IDF had transformed it into a military barracks and later into a detention centre. Not content with wanton demolition of militarily insignificant but culturally pivotal buildings, “the Israeli army has targeted academic, scientific, and intellectual figures in the Strip in deliberate and specific air raids on their homes without prior notice,” killing 94 university professors as of January 20.

Others killed in IDF strikes include artists Muhammed Sami Qraiqea, Heba Zaqout, and Ali Nasman, poets Refaat Alareer, Hiba Abu Nada, and Muhamed Ahmed, writer Youssef Dawwas, novelist Nour Hajjej, and photographer Rushdi al-Sarraj. These are not mere collateral casualties of war. The material obliteration of the Gaza Strip is coupled with the systematic obliteration of Palestinian history and culture. Bodily and cultural genocide walk hand in hand.

Starvation as a weapon of war

An open letter issued by twelve prominent Israeli human rights organizations, which was reported in a Guardian exclusive on March 11, claims that “humanitarian aid to Gaza dropped by 50 percent in the month following the [ICJ] ruling.”

Since January 26, Israel has allowed protestors to block crossings to prevent food getting into the strip; withheld visas from vital UN and international aid agency personnel; denied, impeded, or postponed World Health Organization missions to supply medical essentials to Gaza’s devastated hospitals; and carried out the now infamous “flour massacre” in which IDF troops fired on a crowd awaiting a promised food delivery, killing over 100 Palestinians.

Faced with such sabotage of the ICJ order to “enable the provision of urgently needed basic services and humanitarian assistance,” Israel’s allies have hastily cobbled together other costly and inefficient alternative schemes to get aid to Gaza’s besieged and starving population. These range from parachuted air drops (which have already killed several Palestinian children) to a floating dock (which will take at least two months to build) to bring in supplies by sea from Cyprus.

A rethink in the West?

While Israel continues to thumb its nose at the ICJ, the one-time united front of its Western backers has shown increasing signs of fracturing.

Most Western governments, including the government of Canada, initially downplayed the ICJ ruling—which I suspect surprised them by both its near-unanimity and its scope. In what looked suspiciously like a coordinated effort to distract from the ICJ bombshell, 16 Western countries ostentatiously demonstrated their support for Israel when the ruling was first announced by defunding UNRWA, the most important aid agency in Gaza, on the basis of unevidenced Israeli accusations that a dozen of its 13,000 personnel had been involved in Hamas’s October 7 attacks.

But as the death toll in Gaza continued to rise and domestic opposition grew throughout the West, second thoughts began to set in.

Belgium, Ireland, Luxembourg, Norway, Portugal, and Spain refused to join the UNRWA boycott. The Irish and Spanish prime ministers demanded that “the European Commission urgently review whether Israel is complying with its obligations to respect human rights in Gaza.” British, French, German, Australian, and Canadian foreign ministers voiced their newfound “concern” at civilian casualties.

Australia, Canada, and New Zealand issued a joint statement telling Israel that it “must listen to its friends and it must listen to the international community.” Belatedly pontificating that “Palestinian civilians cannot be made to pay the price of defeating Hamas”—as if they hadn’t been supporting Israel’s doing exactly that since October 7—Israel’s fellow settler-state Prime Ministers Anthony Albanese, Justin Trudeau, and Christopher Luxon reminded their errant ally that:

The International Court of Justice has been clear: Israel must ensure the delivery of basic services and essential humanitarian assistance and must protect civilians. The Court’s decisions on provisional measures are binding.

This latter point was one Mélanie Joly had conspicuously failed to make in her initial statement on the ICJ ruling, though on that occasion she did find space to reiterate that “Canada will continue to support Israel’s right to exist and defend itself.”

Canada, Sweden, and the EU Commission later quietly announced that they would be restoring their contributions to UNRWA.

And what of the US?

Speaking in Tel Aviv on February 7, Secretary of State Antony Blinken fired an opening shot over Israel’s bow, warning that “the daily toll that [Israel’s] military operations continue to take on innocent civilians remains too high.” The next day president Biden himself told journalists “I’m of the view, as you know, that the conduct of the [Israeli] response in the Gaza Strip has been over the top.”

The unexpectedly large “uncommitted” vote in primaries in Michigan (13 percent), Minnesota (19 percent), and elsewhere, which resulted from a hastily organized campaign to register dissent at the Biden administration’s support for Israel’s military actions, seems to have concentrated Democrat minds wonderfully.

Congressman and Biden campaign surrogate Ro Khanna, who was long opposed to a ceasefire in Gaza, is now urging “if [Netanyahu] defies the United States, not allowing aid, or going into Rafah, [then] no more weapons transfers … unconditionally.”

Even Senate majority leader Chuck Schumer, whose Zionist credentials are unimpeachable, is now calling for new elections in Israel. Netanyahu, he says, has “has lost his way by allowing his political survival to take precedence over the best interests of Israel.” The current Israeli government “has been too willing to tolerate the civilian toll in Gaza, which is pushing support for Israel worldwide to historic lows. Israel cannot survive if it becomes a pariah.”

Talk of a “rift” between Netanyahu and Biden has led to speculation that Biden is contemplating cutting off further supplies of offensive weapons (though not the defensive Iron Dome) if Israel does not soon alter course (see CNN, Haaretz and Politico).

Though Biden has still not committed to using America’s considerable leverage to pressure Israel into changing its policies, he did not pull any punches in his March 7 State of the Union address.

Thirty-two million viewers watched him put it on record that:

This war has taken a greater toll on innocent civilians than all previous wars in Gaza combined.

More than 30,000 Palestinians have been killed.

Most of whom are not Hamas.

Thousands and thousands are innocent women and children.

Girls and boys also orphaned.

Nearly 2 million more Palestinians under bombardment or displaced.

Homes destroyed, neighborhoods in rubble, cities in ruin.

Families without food, water, medicine.

It’s heartbreaking …

“Israel must allow more aid into Gaza and ensure that humanitarian workers aren’t caught in the crossfire,” the president went on. “Humanitarian assistance cannot be a secondary consideration or a bargaining chip. Protecting and saving innocent lives has to be a priority.”

We have come a long way from October 26, when Biden told reporters assembled in the White House rose garden: “I have no notion that the Palestinians are telling the truth about how many people are killed. I’m sure innocents have been killed, and it’s a price of waging war. But I have no confidence in the number that the Palestinians are using.” Where we are headed, on the other hand, still remains unclear.

At a crossroads

Facing down his critics, Benjamin Netanyahu continues to insist that Israel will fight on until “absolute victory” is achieved over Hamas. He is adamant that the IDF will invade Rafah, where one-and-a-half million “displaced” Palestinians have sought a last refuge, unmoved by German Foreign Minister Annalena Baerbock’s plea that “If the Israeli army were to launch an offensive on Rafah under these conditions, it would be a humanitarian catastrophe” or any other Western entreaties.

Rafah may prove to be Netanyahu’s Rubicon. Mounting an assault without first evacuating civilians would challenge the “red line” Biden laid down in an MSNBC interview after his State of the Union address, in which the American president told Israel that:

They cannot have 30,000 more Palestinians dead as a consequence of going after … there’s other ways to deal with the trauma caused by Hamas.

But if Netanyahu is facing his Rubicon, the West has finally arrived at its own moral crossroads.

After months of uncritical (and I would argue, unthinkingly racist) support for Israel’s assault on Gaza and weeks of equivocation as the magnitude of its inhumanity has become undeniable, there is still time to draw back from the abyss and defend the post-war rules-based international order whose highest legal authority is the ICJ.

“We find ourselves in an unprecedented situation,” writes Pankaj Mishra:

Never before have so many witnessed an industrial-scale slaughter in real time. Yet the prevailing callousness, timidity and censorship disallows, even mocks, our shock and grief. Many of us who have seen some of the images and videos coming out of Gaza—those visions from hell of corpses twisted together and buried in mass graves, the smaller corpses held by grieving parents, or laid on the ground in neat rows—have been quietly going mad over the last few months. Every day is poisoned by the awareness that while we go about our lives hundreds of ordinary people like ourselves are being murdered, or being forced to witness the murder of their children.

The West can end its complicity in what Naomi Klein, with a nod to Jonathan Glazer’s film The Zone of Interest, has called this “ambient genocide.” The film follows Auschwitz commandant Rudolf Höss’s everyday life with his wife and children in a stately home and lovingly-tended garden whose wall hides the sight, but not the sounds, of the extermination camp next door.

Glazer caused an uproar—and also garnered much applause—at this year’s Oscars when accepting the Academy Award for Best International Feature Film. He stated:

All our choices we made to reflect and confront us in the present. Not to say ‘look what they did then’—rather, ‘look what we do now.’ Our film shows where dehumanization leads at its worst. It shaped all of our past and present …

Right now, we stand here as men who refute their Jewishness and the Holocaust being hijacked by an occupation which has led to conflict for so many innocent people. Whether the victims of October 7 in Israel or the ongoing attack on Gaza—all the victims of this dehumanization, how do we resist?

Over to you, Mr Biden. Over to you, Messrs Joly, Hussen, and Trudeau. The choice is yours.