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If Not Now

The ICJ Has One More Chance to Make a Difference in Gaza

A provisional order for Israel to withdraw from Rafah would provide a clear legal standard the United States would be obliged to follow.

On May 16, at the International Court of Justice in The Hague, lawyers for Israel waited to hear arguments from South Africa's legal team. From left: Gilad Noam, Israel's deputy attorney general for international law; Isrel Tamar Kaplan Tourgman, principal deputy legal adviser of the Ministry of Foreign Affairs; and Avgail Frisch Ben Avraham, legal adviser at the Israeli Embassy to the Netherlands.
Photo by NICK GAMMON/AFP/Getty Images
On May 16, at the International Court of Justice in The Hague, lawyers for Israel waited to hear arguments from South Africa’s legal team. From left: Gilad Noam, Israel’s deputy attorney general for international law; Isrel Tamar Kaplan Tourgman, principal deputy legal adviser of the Ministry of Foreign Affairs; and Avgail Frisch Ben Avraham, legal adviser at the Israeli Embassy to the Netherlands.

They came to Rafah on a promise of safety: There will be no bombs here. You might even find a pinch of rice and some water for washing. So by ox cart and on foot, by pickup truck sagging under the load of a whole clan’s belongings, a great mass of Palestinians moved through streets half-cleared of pulverized concrete, rubbish, and human shit, bound for what looked like a haven. They came from Shujayya and Deir Al Balah, from Gaza City and Nuseirat. Gazans interviewed by Doctors Without Borders speak of being pushed around as many as nine times, shuttled between the Strip’s “evacuation zones,” and converging, in the end, on the town at the furthest extremity available. They came to Rafah, and after May 7, when the Israeli army announced its latest offensive into the town, they went. They were promised again that somewhere else might be safe, but this time they embarked with less hope, fewer family at their side, their bellies emptier than before, carrying before them a scavenged scrap of white cloth to pass for a flag. But even that will not grant them immunity from a blunt fact: At any moment, no matter what they are doing, they might be shot where they stand. 

For seven months, Rafah was the only place in Gaza resembling a functional society. It had a threadbare administration, the last remains of an infrastructure, a few hospitals still running, and a border crossing used for the passage of aid. Its refugee population of one million (in peacetime it was home to a third of that number) was held in a state of sustained bare life. Now even that shall be stripped from them. On May 10, these facts compelled South Africa’s lawyers to return to the International Court of Justice and try once more to get an order—a provisional measure—under the Genocide Convention to halt the onslaught. The court has refused to grant South Africa’s main request—a total and complete end to all Israeli military action in Gaza—three times. To ask again for a reconsideration, the South African lawyers have to demonstrate that the situation has significantly worsened. Their arguments at hearings on May 16 were consequently much more urgent and desperate than when they first appeared in court, in January. If the tone then was grave and dire, yesterday it was apocalyptic. The Rafah invasion, the lawyers argued, will be “the last step in the destruction of Gaza,” the “endgame” for an entire people, the “last chance for the court to act.” 

As much as lawyers in wigs and robes can be when speaking to the highest court in the world, South Africa’s advocates were abrupt and aggressive, clearly aiming to evoke in the judges a pang of complicity—a direct stake in lives that might yet be saved by their intervention. “Your previous orders have not succeeded in protecting” Palestinians, Vaughan Lowe said bluntly. “Whether because [of] the lack of clarity as to precisely what the orders require or because Israel chooses to ignore them, they have not been effective.” The judges should, Lowe continued, “spell it out explicitly for Israel” that the court is “not powerless” nor “worthless,” consecrated alone “to assert not only its own authority but the authority of international law.” Tembeka Ngcukaitobi reinforced this theme: “The rule of law can only survive through the orders of this court,” he said. “If the rule of law is to have any meaning, let it be today and with this case.” 

The ICJ has shied from granting South Africa’s principal plea for a complete withdrawal of Israel Defense Forces because it has been hemmed in by Israel’s reasonable objection that any order issued against it would contravene its right to self-defense—especially given that Hamas (because it is not a state and not a party to the court) wouldn’t be bound by the same order. It seemed, for a moment, that the South African team had found a sneaky and clever track around this barrier. The written submission for their latest plea for provisional measures included this formulation: Israel “shall immediately withdraw and cease its military offensive in the Rafah Governorate.” The request applied to Rafah alone; it would not extend to a similar prohibition in other parts of Gaza, allowing the judges much more room to condemn the latest offensive without breaching Israel’s own rights. Though smaller in scale than previous requests, its effect would be wider.  

By the time of the hearings on Thursday, however, that specific and finely honed wording was gone. At their conclusion, South Africa’s lawyers demanded the IDF “immediately, totally, and unconditionally withdraw … from the entirety of the Gaza Strip.” Quite why the South African side abandoned a finessing scalpel for the bludgeon force of a hammer is unclear. It closes off the space available to the judges to maneuver and presents them instead with a kind of ultimatum. But as the judges stated in their first decision on provisional measures, their opinion “need not be identical to those requested.” The court can still issue a limited order that obliges Israel to withdraw from Rafah and reopen its border crossing, as well as the one at Kerem Shalom. It falls then to Israel to comply. The country’s failure to do so would be an enormous detriment to its argument when, inevitably, some years down the line, we return again for the full case to be heard. 

From late October last year, and every week since, Gazans have been given at best 24 hours to remove themselves from an area the Israeli army wishes to ruin. Yet when Israel’s agents appeared before the ICJ on Friday, they complained loudly and at length that a few days was not time enough to summon its lawyers to The Hague. In contrast to the January hearings, their bench was empty; against South Africa’s battery of six lawyers, Israel mustered only three. Just two spoke. Toward the end of their allotted time, someone in the gallery loudly shouted, “Liars!” Whoever they were, and as undignified as their outburst was, they were not entirely wrong. 

One chilling example stands out. After a two-week special forces operation against Al Shifa Hospital in April, the Israelis left behind a mass grave with 30 bodies inside, some with cannulas still in their arms. Hundreds of other bodies were found around the hospital complex, including, if Hamas civil officials are to be believed, those of several doctors. Yet Kaplan Tourgeman, a legal adviser in Israel’s Foreign Affairs Ministry, stated: “Despite the intense military activity on the premises [of Al Shifa], no patients or medical staff were harmed during the operation by the IDF.” Tourgeman’s blatant lie also dodged overwhelming evidence of a similar mass grave of hundreds of bodies found near Nasser Hospital in Khan Younis, after a similar operation included among its remains corpses dressed in medical scrubs. 

Which is more crass? To fib about the pits your own soldiers likely dug or to accuse the other side of acting as an accessory to a terror group? Gilam Noam, Israel’s deputy attorney general for international law, suggested South Africa’s only motivation in coming to the court was to “obtain military advantage for its ally, Hamas, which it does not wish to see defeated.” Noam claimed that the South African side’s attempt to “exploit” the court was “vile and cynical” and that really it “wishes to see Hamas remain in control.” Among the many high aims brought low by its conduct since October is the Israeli desire, as Noam put it, “to see a different future for Gaza.” It will deliver that future at the point of a bayonet, and one cannot help but recall the prayer of a Buddhist activist in Vietnam at the beginning of America’s bloody savaging of that country: “Lead us not into Salvation, but deliver us from Deliverance.”

It is tempting to regard the ICJ as merely a symbol. Impotent to intervene when it is needed most, it can appear to be an airtight realm in which reality and the law do not blend; anyone who stands accused by it can simply ignore its rulings. But its opinions do have an effect, if not the preferred one: A firm order from its judges would impose significant pressure on Israel’s closest pals—the United States and Germany—to dam up the torrent of arms and ammunition they have unleashed to fuel Gaza’s nightmare. Last week, the Biden administration delivered (to itself) an overdue report—in response to National Security Memorandum 20—which gave license (to itself) to continue these shipments, despite Biden’s limp withholding of a few boats. The report found it “reasonable to assess” that American arms had been used in violations of international law in Gaza, yet because the study was not asked to judge the legality of each drop of a bomb or firing of a shell, or indeed to judge whether these things had happened at all, there was no real reason for the flow of arms to stop. The administration asked a foggy, bureaucratic question and got an equally foggy, bureaucratic answer back.

A clear provisional measure from the ICJ would provide a legal standard the U.S. (and other countries) would be obliged to follow. It would also give useful leverage to internal dissidents within governments to push harder for higher standards on arms transfers. It might stop the grotesque daily ritual of officials appearing before the world and reassuring themselves (and us) that Israel complies always and forever with international law and any crimes that have occurred will be fairly investigated by the IDF. As a recent NPR report revealed, “Among the 1,260 complaints regarding Israeli soldiers harming Palestinians and their property” submitted to Israel’s Military Advocate General’s office between 2017 and 2021, “only 11 resulted in indictments—fewer than 1% of all complaints.” Actual prosecutions are so rare that the human rights group B’Tselem stopped contributing to them in 2016. Put simply, just as the state cannot be trusted to report on itself, it cannot be trusted to issue a verdict on itself either. 

Anything could and should be thrown into the gears of the machine. Israel acts the way it does because of America’s enduring role as chief armorer, banker, and patron. The Israeli air force does not load up its bombers without assurance that more munitions made by American hands are on their way; its politicians would not appear on a stage before a horde of settlers and promise them seaside homes on the Gazan waterfront if words like these weren’t routinely defended by American politicians. On whose behalf were American cops sent to smash the heads of American students? It was to the benefit of extreme-right Finance Minister Bezalel Smotrich who, despite the ICJ’s warning against incitement to genocide, is still calling for the “total annihilation” of Gaza. 

What does “total annihilation” look like? From the morass of suffering, examples and images tend to select themselves and lodge in the brain like an infection. Here is one. Sabreen Al Sakani lived in Rafah. She was 30 weeks pregnant. In April, she was killed in an Israeli airstrike, alongside her husband and daughter. Her body was taken to a hospital. Doctors performed an emergency caesarean outside, in the open air. The child was born, and her uncle called her Sabreen, after her mother. Sabreen survived for 120 hours. A just world would reconsecrate itself in Sabreen’s image, would title its legal codes in her name. Perhaps this is sentimental. Yet it is a better sentiment than the kind expressed by those who would call Sabreen’s fate a “tragedy” rather than a crime. Codes are complex, yes; the law is a labyrinth; but justice is a smaller thing, and simpler too: It says no one should be born an orphan, dead in five days.