INTERVIEW: Israel has not complied with the ICJ

Manal Lotfy in London , Tuesday 5 Mar 2024

Israel has not complied with ICJ instructions in the war on Gaza in a further affront to the international moral and legal order, UK academic Thomas MacManus tells Al-Ahram Weekly.

Israel has not complied with the ICJ

 

Two tragedies are occurring in the Occupied Palestinian Territories. The first is the bloody Israeli war that does not distinguish between civilian and military targets, uses starvation as a weapon of war, and destroys civilian infrastructure so that the Palestinians have no place to return to.

The second is the international silence and impotence at what is happening, whether at the level of states or of judicial institutions and international humanitarian conventions agreed upon after World War II to prevent crimes such as genocide.

In January this year, the International Court of Justice in The Hague (ICJ) requested six provisional measures from Israel to protect Palestinian civilians in Gaza from what the court concluded was “a plausible case of genocide.”

Among these measures were demands that Israel respect its obligations under the Genocide Convention, prevent and punish the direct and public incitement to genocide, and take immediate and effective measures to ensure the provision of humanitarian assistance to civilians in Gaza.

Yet, the sharp and accelerating deterioration of the humanitarian conditions in Gaza is evidence that the Israeli government has ignored the ICJ and has not changed its policies.

There are pockets in northern Gaza where civilians are dying because of the lack of necessities such as food, clean water, and life-saving medicines. Indiscriminate missile strikes on residential buildings kill hundreds of people every day, most of them children and women.

Going to collect humanitarian aid from the few trucks that enter Gaza has also become an issue fraught with deadly risks, with confirmed reports indicating the targeting of civilians who gather to obtain aid.

In its decision, the ICJ asked Israel to submit a monthly report explaining what it was doing to prevent genocide. At the end of February, Israel submitted its first confidential report.

Thomas MacManus, senior lecturer at the School of Law at Queen Mary University in London and acting director of the International State Crime Initiative (ISCI), said that Israel has not complied with the ICJ orders and that the ICJ is likely to respond by either requesting more temporary measures or accusing Israel of non-compliance and asking the UN Security Council to intervene.

In an interview with Al-Ahram Weekly, he said that the international legal and moral order is at stake.

He had appeared before the ICJ in the case brought by Gambia against Myanmar in which the ICJ decided, by 15 votes to one, that it had jurisdiction under the Genocide Convention to hear a case that accuses Myanmar of committing genocide against the mostly Muslim Rohingya.

He sees similarities between the international response to crimes in Gaza and crimes against the Rohingya.

MacManus, editor of the State Crime Journal and associate editor of the International Journal of Human Rights, thinks the gap in global sympathy between the two cases is one of the most striking features of the war on Gaza.

There was huge solidarity and sympathy for Israel after 7 October, as well as with Ukraine after the Russian invasion, yet the killing of about 40,000 Palestinians and the flattening of Gaza has not generated similar solidarity from the Western countries.

No legal or ethical argument can explain the sympathy gap, but US philosopher Judith Butler’s ideas might help, he said.

In Butler’s work, particularly “Frames of War: When Is Life Grievable?” she tackles the ethical and political question of which lives are considered worthy of mourning and, thus, protecting. She argues that the recognition of life as grievable is not preordained, but rather constructed through cultural, social, and political framing. Some lives are pre-emptively devalued through the same framing processes, essentially erasing their worth and creating a situation where their loss is not fully acknowledged or lamented. 

The absence of international institutions to protect these “ungrievable” lives is not a coincidence, Butler says, as the system is constructed that way. It reflects how power structures and media portrayals determine the value of different lives, their worth of protection, and their grievability.

What has been the Israeli response to the ICJ’s six provisional measures aiming to prevent genocide in Gaza?

We have seen a deterioration in conditions on the ground since the provisional measures were made. There are measures that Israel was asked to take to stop genocidal acts, and other measures were related to genocidal intent. Israel was ordered to stop, investigate, and punish any statements made by government officials which could be seen as having genocidal intent, like calling to wipe out all of Gaza, talking about human animals, and claiming that all people in Gaza are supporters of Hamas and therefore should be destroyed.

These kinds of statements, according to the ICJ, should be punished and investigated. The other thing the court ruled is that Israel, as the occupying power, is responsible for basic services, which include all medical aid and humanitarian aid such as food, water, and electricity. So, I think the focus of Israel’s response would be on two things, one on the prevention and punishment of genocidal statements. The second one is they’re going to try to show that they have increased aid into Gaza.

Now, the reality doesn’t match those two arguments that Israel makes. We haven’t seen any kind of investigation or punishment of those who have made statements with genocidal intent. Israeli law doesn’t allow for the punishment of the members of the Knesset for statements made. They have a very strong free-speech rule. So, they’re going to find that difficult under Israeli law, but under international law the Israeli government should be able to do something, and it is going to be very interesting to know exactly what they would say to the ICJ.

I suspect they’ll say that we’ve sent a message to everybody not to say anything along these lines and to make sure that civilians are protected. But it seems obvious from what’s happening on the ground that they are just paying lip service to their obligations. These measures aren’t being followed closely.

The second thing they’re going to do is try to show that they’ve allowed more aid in, but the statistics from groups like Human Rights Watch and the UN agencies point to a deterioration of the situation. Before 7 October, around 508 trucks were getting into Gaza per day. Before the ICJ ruling, on 26 February, it was more like 140 trucks a day. But since the ICJ made its preliminary order, the number has dropped to about 40 trucks a day. So, it seems that the amount of aid is now even worse than before the order was made. It is nowhere near the levels needed.

We have reports of people starving inside Gaza. It’s clear that Israel not only is not living up to their obligations but there could also be a very strong argument made that they’re making things worse since they’ve been ordered to provide basic services and humanitarian aid.

If Israel’s response to the ICJ is not satisfactory, what measures can the ICJ or the Security Council take to prevent possible genocide in Gaza?

The court’s order is binding, and if they determine that their order is not being followed, they will issue a statement to that effect, and they may even issue more specific preliminary measures or a tighter reporting regime. But at the end of the day, that will be met with the same kind of obstinacy and will potentially be ignored by the powers in play.

The UN Security Council can stop this whenever they want. They are a very powerful body, and they’re sitting at the top of the UN system. Their role is to intervene to maintain peace and security in the world, and they have a wide range of mechanisms at their disposal from diplomatic efforts to sanctions to military force, so they can stop this whenever they want. But as long as the UK and the US staunchly support Israel’s campaign, then we don’t really have a prospect of anything happening.

It’s kind of reminiscent of the Cold War, where Russia or the US would veto anything that came before them. So, without UN Security Council interference, all we’re left with is this binding judgement in the court. And then it’s for other states and for civil society in general to use that and the Genocide Treaty to do whatever they can to stop enabling genocide in the making and implementing the prevention measures.

But, the UN Security Council has a monopoly on force in international law, and Israel will be buying time with the support of the US and the UK to complete this operation as they see it. So, they’re probably looking for another two or three months before they have to stop carrying out what the ICJ says is a plausible case of genocide.

One of the reasons for the current starvation in Gaza is that around 18 countries have frozen their financial contributions to the UN Palestinian refugee agency UNRWA. Could these countries be complicit in the crime of genocide?

Any state that enables or fails to prevent genocide, especially after the ICJ has put the world on notice of a serious risk of genocide in Gaza, could be found to be complicit in genocide under the Genocide Treaty. So, any state that knowingly or recklessly enables a state that’s committing genocide would be complicit in the crime.

The case of UNRWA is a very good example of potential complicity where states have withdrawn funding on questionable grounds. But even if the intelligence wasn’t questionable, we’re talking about 10 out of 13,000 people. So, the idea that you defund an entire organisation because there is suspicion that 10 or 15 people within that organisation may be Hamas supporters could be seen as enabling Israel, which is carrying out what the ICJ says is a plausible case of genocide.

If the ICJ concluded that genocide has taken place in Gaza, then all the states that withdrew their funding on these flimsy grounds could then be charged I would say with complicity in genocide, and that’s because they enabled Israel either with knowledge of the genocidal intent or recklessly without knowledge of genocidal intent.  

So, I think these countries should be very worried about enabling Israel. And all states are on notice now, and they should be doing due diligence on their activities to see whether they’re enabling genocide. Furthermore, they need to review what tools they have to prevent genocide.

Many use the expressions genocide and ethnic cleansing to describe what is happening in Gaza. What is the difference between them?

The main difference is that there’s no such crime as ethnic cleansing, which is a term that was invented by the former Yugoslav leader Slobodan Milošević to talk about genocide without using the word. 

Contrary to ethnic cleansing, the crime of genocide is well-established. We know what it is. We know how to define it. We know what obligations people have to prevent it.  But as a lawyer, I don’t know what ethnic cleansing is. I don’t know what it is because we have no criminal definition of it. So, the only time you hear people talking about ethnic cleansing in law or politics is when they’re trying to avoid using the word genocide.

We’ve seen over the years, and this is something we saw with the Rohingya Muslims in Myanmar, that people will talk about ethnic cleansing because it has no legal obligations associated with it. But in real life, ethnic cleansing is the removal of an ethnicity or people from the area in which they live.

The reality is that people have realised that states avoid using the term genocide so much that we need another term to try and get the message across. So ethnic cleansing is a genocidal act, but there’s no such crime in law.

A plausible case of genocide is happening before our eyes with little happening to prevent it. Does that cause you as an international law professor to question the international legal system?

I think this case is certainly turning the focus on the international legal system, the system of international criminal justice, and the system of maintaining peace and security.

International law has always been a kind of weak force. However, states have been trying to bolster it over the years by setting up the ICJ and the International Criminal Court (ICC) and by ceding sovereignty to the international justice system by allowing signing up to courts, allowing courts to look at issues, and filing issues with the ICJ.

But what we’re seeing is, as the old adage has it, might is right. It depends on who is in the sights of international justice. If it’s a UN Security Council member, then there’s very little we can do. They’re the ones who hold the keys to the use of force, and they seem to be able to get away with whatever they want. We are operating in a system where the law has always been weak.

But in this case not only Israel is on trial, but the whole system has been tested and pushed. Do we want to have a community of states who interact with each other based on law, or are we going to revert to some system where international relations is based on power? So, there’s a lot at stake and it is not looking good for the international rule of law at the moment. The ICJ has issued these orders, and they seem to have been ignored by Israel and if anything, the situation is getting worse.

Is the global justice and moral system in jeopardy because the Gaza war has tragically demonstrated the gap in global sympathy? Is Judith Butler’s work on “grievable lives” a useful way to understand the sympathy gap?

I think that’s a really interesting point. And when I worked on the Rohingya genocide for many years, and when we tried to raise the alarm with the British state, there was very little interest. When we tried to raise the alarm with the British and international media, again it was difficult to get them to take notice and to report on what was going on the ground. And the only real explanation for that must have been that these people are far away, that they’re brown, and that they’re Muslim, and that it’s not within our sphere of obligation, as you say that they are “un-grievable” lives.

Then we saw Russia invade Ukraine, and we saw that the international media and the Western states were very exercised. They would do anything they could to speak out against Russia to help the Ukrainians. Thirty two cases joined on the side of Ukraine in the ICJ for their genocide case. And we didn’t see any of those Western states, or at least very few of them, one or two, only even thinking about joining the South Africa versus Israel case. So, it seems to depend on who the victim is, and what their relationship is to the Western states.

Are they like us? Or are they unlike us? Are they the same religion as us? Are they the same way of culture as us? So despite having universal human rights and a universal kind of approach to crimes against humanity and genocide, states take a very different stance, and perhaps unsurprisingly the mainstream media seems to fall in line with the state’s view of it. And that puts the media under the spotlight as well.

The BBC did not broadcast the first day of the South Africa-Israel case where South Africa presented their case, but it did broadcast the second day, where Israel presented their case. Why would you make such an editorial decision? And how was such an editorial decision made? As I said, the Rohingya issue was almost completely ignored by the mainstream media for reasons that I’ve never really got to the bottom of, but I can only call it latent racism.

The BBC broadcast a one-minute story about famine in Gaza without mentioning Israel or the siege or the blocking of humanitarian aid by Israeli settlers a few days ago. Can one cover the famine in Gaza without mentioning Israel even once?

There’s a very strong Israeli lobby inside the UK, and it’s incredibly impressive how they do it. But history will show what happened and the states that were enabling genocide through their government policies and also through the way they control the media.

* A version of this article appears in print in the 7 March, 2024 edition of Al-Ahram Weekly

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