Over the past month, we’ve watched an astonishing, high-stakes global drama play out in The Hague. A group of countries from the poorer, less powerful bloc some call the global south, led by South Africa, dragged the government of Israel and, by extension, its rich, powerful allies into the top court of the Western rules-based order and accused Israel of prosecuting a brutal war in Gaza that is “genocidal in character.”
The responses to this presentation from the leading nations of that order were quick and blunt.
“Completely unjustified and wrong,” said a statement from Rishi Sunak, Britain’s prime minister.
“Meritless, counterproductive and completely without any basis in fact whatsoever,” said John Kirby, a spokesman for the United States National Security Council.
“The accusation has no basis in fact,” a German government spokesman said, adding that Germany opposed the “political instrumentalization” of the genocide statute.
But on Friday, that court had its say, issuing a sober and careful provisional ruling that doubled as a rebuke to those dismissals. In granting provisional measures, the court affirmed that some of South Africa’s allegations were plausible and called on Israel to take immediate steps to protect civilians, increase the amount of humanitarian aid and punish officials who engaged in violent and incendiary speech. The court stopped short of calling for a cease-fire, but it granted South Africa’s request for provisional measures to prevent further civilian death. For the most part, the court ruled in favor of the global south.
Accusing the state created in the aftermath of the slaughter that required the coinage of the term genocide is a serious step. Scholars of genocide have raised alarms about statements from Israeli leaders and its conduct in the war while stopping short of calling the killing genocide. Some have welcomed South Africa’s application as a necessary step to preventing genocide.
The court was not asked to rule on whether Israel had in fact committed genocide, a matter that is likely to take years to adjudicate. Whatever the eventual outcome of the case, it sets up an epic battle over the meaning and values of the so-called rules-based order. If these rules don’t apply when powerful countries don’t want them to, are they rules at all?
“As long as those who make rules enforce them against others while believing that they and their allies are above those rules, the international governance system is in trouble,” Thuli Madonsela, one of South Africa’s leading legal minds and an architect of its post-apartheid Constitution, told me. “We say these rules are the rules when Russia invades Ukraine or when the Rohingya are being massacred by Myanmar, but if it’s now Israel butchering Palestinians, depriving them of food, displacing them en masse, then the rules don’t apply and whoever tries to apply the rules is antisemitic? It is really putting those rules in jeopardy.”
Reading the document South Africa prepared, I wondered if the leaders of the Western world who dismissed the allegations out of hand had read the same evidence that I had. It is a harrowing chronicle of a charnel house of horrors that shows in detail how Palestinians in Gaza have endured relentless bombing and displacement. I was struck by how thoroughly documented the allegations were and how selective the jurists were in their sources of evidence. The document includes 574 footnotes that cite blue-chip sources, like United Nations agencies, major nonpartisan humanitarian aid organizations like Save the Children and mainstream news organizations like The New York Times, the BBC and Reuters.
The military campaign has “wreaked more destruction than the razing of Syria’s Aleppo between 2012 and 2016, Ukraine’s Mariupol or, proportionally, the Allied bombing of Germany in World War II,” the report quoted researchers as saying. The researchers, hardly some raving left-wing activists, are experts cited in one of the most respected news organizations in the world, The Associated Press.
Nor did South Africa seek to elide or obfuscate the atrocity of Hamas’s attack on Israel or the ongoing threat to Israel: In fact, the South African document explicitly condemns the Oct. 7 attack and notes the ongoing rocket attacks from Gaza and Lebanon.
It goes on to quote statements from top Israeli officials, like President Isaac Herzog, stating that “it’s an entire nation out there that is responsible,” making no distinction between civilians and Hamas fighters. Israel’s minister of defense, in the days after the attack, called for a “complete siege,” adding “there will be no electricity, no food, no water, no fuel, everything is closed.” He said that in fighting Hamas the country faced “human animals and we are acting accordingly.” A politician tweeted that the objective was “erasing the Gaza Strip from the face of the earth.” The minister of agriculture said Israel was “now rolling out the Gaza nakba.”
These are serious charges that will take years to investigate and untangle. The bar to proving that the Israeli government has engaged in genocide is very high, and appropriately so. It is the most heinous crime a nation can commit, and there is special resonance, given that the term “genocide” was coined by the legal scholar Raphael Lemkin, a Polish Jew, during the Holocaust to give a legal definition to the slaughter and ensure it never happened again.
Israel mounted a vigorous and detailed defense, arguing that the statements South Africa cited were not official government policy in prosecuting the war. (The Hebrew-speaking American journalist Yair Rosenberg argued in The Atlantic that some of the statements from Israeli officials quoted in the South Africa referral have been taken out of context, truncated or mistranslated.) Hamas has explicitly and repeatedly stated it seeks to eradicate the state of Israel. Israel argues that Hamas is the force that would commit genocide if given the chance and that the country’s military campaign in Gaza against Hamas is one of self-defense. The court did not order Israel to stop fighting in Gaza, presumably indicating that its battle there is legal and legitimate in principle.
All of which is to say, this is exactly the kind of dispute the International Court of Justice was created to address.
The International Court of Justice is not some kangaroo court. It was established after the atrocities of World War II. It is made up of eminent jurists from countries across the globe, who are voted to nine-year terms by the United Nations General Assembly and the Security Council. By almost unbroken tradition, permanent members of the Security Council are always represented on the court, and the court is customarily balanced among continents. Its rulings are final, but it has no real mechanism to enforce them unless the U.N. Security Council chooses to press the issue, which is unlikely in this case, given the United States’ veto power. The International Court of Justice issued a nonbinding opinion in 2004 that the security barriers Israel was erecting in the West Bank violated international law, but that ruling has had no effect. The walls still stand.
But despite the International Court of Justice’s lack of enforcement mechanisms, this case matters a great deal because it speaks directly to the blunt challenges facing the American-led global rules-based order that has endured, with some bumps along the way, since the end of World War II. The countries that defined the terms of that grand bargain — the rich, Western nations of the global north — are declining on multiple fronts as China’s global ambitions grow, Russia under Putin menaces Europe and liberal democracy is in retreat in many parts of the globe as governments in strategically vital emerging powers like Turkey and India tilt toward autocracy. All the warning lights are blinking as we risk tumbling headlong into a new era of might-makes-right realpolitik in which anything goes, international laws and norms be damned.
Indeed, what is a rules-based system if the rules apply only selectively and if seeking to apply them to certain countries is viewed as self-evidently prejudiced? To put it more simply, is there no venue in the international system to which the stateless people of Palestine and their allies and friends can go to seek redress amid the slaughter in Gaza? And if not, what are they to do?
For the cause of Palestinian statehood, every alternative to violence has been virtually snuffed out, in part because Israel’s allies have helped to discredit them. The most recent example is the boycott, divestment and sanctions movement that has, in many places, been successfully tarred as antisemitic or even banned altogether. Efforts to use the United Nations Security Council have drawn U.S. vetoes for decades. Is seeking redress at the appropriate venue for alleged violations of international law also antisemitic, as Israel’s defense minister said on Friday? Does no law apply to Israel? Are there no limits to what it may do to defend itself?
The Biden administration has made the shoring up of the international rules-based order a centerpiece of its foreign policy but, unsurprisingly, has struggled to live up to that aspiration. Fair enough: A little bit of hypocrisy is the inevitable lubricant for the grinding of the gears of history. Only small children expect the hobgoblin of total consistency, and even they eventually grow out of it when confronted with the hard choices life imposes on us all. (Indeed, many have accused South Africa of hypocrisy for bringing this case given its close ties to Russia and its repeated refusal to condemn that nation’s aggression in Ukraine.)
Occasionally straying from your principles because circumstances require it is very different from being seen to have no principles at all, and that is precisely how much of the global south has come to regard the United States.
It seems especially shortsighted in these times that the Biden administration elected to wave away the carefully documented case prepared by South Africa. One of the biggest threats to the rules-based international order is the growing consensus in the poor world that the rich world will apply those rules selectively, at its discretion, when it suits the powerful nations that make up the global north, such as when Russia invaded Ukraine.
“The kind of equivocation that we have been seeing about Gaza, the minimization of the scale of the humanitarian crisis, but also the cowardice in failing to call out the Israeli government for how it’s conducting itself, has sapped the United States of moral authority in the eyes of many people across the globe,” Dan Mafora, a legal scholar in South Africa, told me.
Hamas, of course, in this instance struck first, on Oct. 7, with an attack of such relentless brutality and cruelty that it seemed designed to elicit precisely the maximalist response the Israeli government has meted out. But two can play the game of who started it and who is to blame, rolling back the clock to biblical times to try to fix ultimate responsibility for the catastrophe of Israel and Palestine. No history lesson will salve the present agony.
As far as the rules-based order is concerned, when it comes to crimes like genocide and ethnic cleansing, it simply does not matter who started it. They can no more be justified than Hamas’s wanton slaughter on Oct. 7. The best way to shore up the rules-based order is to be seen, in word and deed, as committing to the institutions and moral commitments of that order.
Germany, the United Kingdom and the United States do not need to affirm the charges from South Africa; they could indeed reject them while still giving credence to the process underway in The Hague as a legitimate and worthwhile exercise of oversight by a credible body charged with adjudicating exactly this kind of claim. After strong dismissals by top officials to the initial charges, the Biden administration had a more muted response to the court’s ruling on Friday, saying via a spokesperson that the U.S. recognizes the court’s “vital role” and noting that the U.S. has strongly urged Israel to take many of the steps the court ordered to protect civilians.
To my mind, the case is most important as a powerful reminder that any Palestinian state would be bound by the same rules and subject to the same kind of proceedings. Benjamin Netanyahu and his right-wing allies have reiterated their adamant opposition to a Palestinian state. The United States has urged the creation of such a state as the foundation for peace in the region. In this, the Biden administration is absolutely correct. The only path out of this tragedy is bringing the people of Palestine into the family of self-governing nations that live, imperfectly, under the rules that have kept an uneasy but durable peace for generations.