War on Gaza: The West will stand in the dock alongside Israel at the genocide court

A girl mourns the death of her relatives, killed by Israeli bombardment, at the European Hospital in Khan Younis, southern Gaza Strip, 31 December 2023 (AFP)

"An interim order halting Israel’s attack will serve as a line in the sand.
Once made, any state that fails to act on the injunction risks becoming complicit in genocide.

That will put the West in a serious legal bind.
After all, it has not just been turning a blind eye to the genocide in Gaza;
it has been actively cheering it on and colluding in it."

Israel is urging western states to rally to its side as the International Court of Justice prepares to hear this week South Africa’s case that Israel is committing genocide in Gaza.

The court is being asked by Pretoria to issue an immediate injunction ordering Israel to halt its military assault on the tiny enclave, to avoid further casualties.

Some 23,000 Palestinians are known to have been killed by Israel so far, a majority of them women and children, and many thousands more are believed to be lying under the rubble. Tens of thousands are seriously wounded. A majority of the population have lost their homes to the three-month bombing campaign.

Israel has intensively and repeatedly targeted the supposedly “safe zones” to which it has ordered Palestinian civilians to flee.

It has destroyed almost all of Gaza’s infrastructure and is blocking most aid from reaching the enclave. Famine and disease are likely to rapidly increase the death toll.

South Africa’s 84-page brief argues that Israel’s bombing campaign and siege breaches the 1948 Genocide Convention, which defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Israel expects support from western capitals because they have nearly as much to fear from a verdict against Israel as Israel itself. They have staunchly backed the killing spree, with the US and UK, in particular, sending weapons that are being used against the people of Gaza, making both potentially complicit.

Israel hopes that, given the difficulties of making a legal case in defence of its actions, diplomatic and political pressure on the court’s justices will win the day instead

According to a cable from the Israeli foreign ministry, leaked to the Axios website, Israel hopes that, given the difficulties of making a legal case in defence of its actions, diplomatic and political pressure on the court’s justices will win the day instead.

The Biden administration led the way late last week in dismissing South Africa’s detailed legal brief as “meritless, counterproductive and completely without any basis in fact whatsoever”.

That would sound patently ridiculous to western audiences had they been provided with serious coverage of Gaza. But Israel has been heavily restricting access to the enclave, while killing Palestinian journalists there at an unprecedented rate to stop their reporting.

In addition, western media are willingly - and secretly - submitting to an onerous Israeli censorship regime.

Incitement to genocide

Israel’s “strategic goal” at the court, according to the leaked cable, is to dissuade the judges from making a determination that it is committing genocide. But more pressing is Israel’s need to prevent the Hague court from ordering an interim halt to the attack.

Israeli officials will argue, Axios reports, that its sustained assault on Gaza fails to reach the threshold of genocide, which requires “creating conditions that don't allow the survival of the population, together with the intent to annihilate it”.

Israel will try to convince the judges that it has been seeking to increase humanitarian aid to Gaza and minimise the toll on civilians.

Its argument flies in the face of the evidence South Africa has amassed.

Its brief contains nine pages of declarations by Israeli leaders showing clear genocidal intent, including statements from Prime Minister Benjamin Netanyahu, senior figures in the cabinet, President Isaac Herzog and many serving and former Israeli military commanders.

Giora Eiland, an adviser to war council minister, Benny Gantz, has called Israel’s goal the creation of “conditions where life in Gaza becomes unsustainable”. An Israeli military spokesman stated from the outset that the aim was to inflict “maximum damage” on Gaza.

Herzog suggests the entire civilian population is a legitimate military target, while Netanyahu refers to the Palestinians as “Amalek”, a biblical enemy. In the Old Testament, God commands the Israelites to annihilate the Amalekites, putting “to death men and women, children and infants”.

Click to watch the video

One of the provisions of the Genocide Convention is an absolute prohibition on incitement to genocide. Israel’s most senior politicians and military commanders have indisputably breached that section of the convention.

A letter to Israel’s attorney general last week from a group of Israeli academics, lawyers, human rights activists and journalists underscored that point. They warned that incitement to genocide had become “an everyday matter in Israel”.

The letter added: “Normalised discourse which calls for annihilation, erasure, devastation and the like is liable to impact the manner by which soldiers [in Gaza] conduct themselves.”

Taking the gloves off

But dehumanisation - the precursor to genocide - is not the only problem.

Israel’s prosecution of what it terms a “war to eradicate Hamas” has fully met its own definition of genocide. “Conditions that don't allow the survival of the population” were already being created long before the onslaught Israel unleashed immediately after Hamas broke out from Gaza on 7 October. Some 1,140 Israelis and other nationals were killed in the ensuing carnage.

Mostly forgotten in the back and forth about what is unfolding in the enclave is the context: United Nations officials warned nearly a decade ago that Israel’s siege of Gaza - now 17 years in duration - was designed to make the enclave “uninhabitable”.

In other words, Israel was precisely “creating conditions that don't allow the survival of the population”. 

Even before its current, extended assault, Israel had placed severe restrictions on access to water for the enclave’s 2.3 million inhabitants. As a direct result, overstretched aquifers under Gaza were allowing in seawater, making the enclave’s drinking water unfit for human consumption.

Food was similarly in short supply. Back in 2012, Israeli human rights groups managed to make public a secret document showing that the army had been tightly controlling food going into Gaza from 2008 onwards. As a result, two-thirds of the population was food insecure, and every 10th child was stunted by malnutrition. The aim was to induce long-term food poverty, effectively putting the population on a starvation diet.

Israel’s repeated attacks on Gaza over the past 15 years - what Israel calls “mowing the grass” - destroyed many of its homes and much of the infrastructure, creating ever greater overcrowding and unsanitary conditions.

Israel's repeated bombing of Gaza’s only power station, and its chokehold on supplying additional energy, limited electricity to a few hours a day.

The Israeli siege blocked medicines and medical equipment from entering the enclave, often making serious health conditions difficult or impossible to treat. And given the Israeli-imposed restrictions of goods in and out of Gaza, the economy was already in ruins, with nearly half the population unemployed.

Long ago, back in 2016, the head of Israeli military intelligence, Herzi Halevi, warned that the catastrophe Israel was engineering in Gaza could blow up in its face - as indeed it did on 7 October.

Israel’s three-month rampage has simply accelerated and intensified all the genocidal policies that had long been established. Hamas’s break-out simply gave Israel licence to take the gloves off.

Gaza ‘uninhabitable’

This is why the UN’s head of humanitarian affairs, Martin Griffiths, declared last week that Gaza had reached the point where it was indeed “uninhabitable”.

He added: “People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.”

With the vast majority of the population homeless and most hospitals no longer functioning, infectious disease was spreading.

A medic inspects the damage in a ward following Israeli bombardment at Nasser hospital in Khan Younis, southern Gaza Strip, 17 December 2023 (Stringer/AFP)

Israel’s “complete siege” policy meant aid could not get in. According to Griffiths, Israel had destroyed roads, blocked communication systems, and was shooting at UN trucks and killing aid workers.

Returning from a visit to the border crossing with Egypt, two US senators observed at the weekend that Israel had imposed unreasonable conditions creating endless delays that prevented aid from reaching the people of Gaza.

In other words, Israel has now successfully “created conditions that don't allow the survival of the population”.

The aim of the 1948 Genocide Convention, drafted in the immediate wake of the Second World War and the Nazi Holocaust, was not simply to punish those who carry out genocides.

Perversely, Israel is reversing the very international safeguards put in place to stop a repeat of the Nazi Holocaust

It was designed to help identify a genocide in its early stages, and create a mechanism - through the rulings of the International Court of Justice - by which it could be halted.

In other words, the purpose of South Africa’s case is not to arbitrate what happens once Israel has annihilated the Palestinians of Gaza, as far too many observers appear to imagine. It is to stop Israel from annihilating the people of Gaza before it is too late.

Based on strange logic, Israel’s supporters imply that the genocide charge is unwarranted because the real aim is not to exterminate the Palestinians of Gaza but to induce them to flee.

Israeli leaders have encouraged this assumption. In an interview on Sunday, the national security minister, Itamar Ben-Gvir, noted of Gaza’s population that - after being bombed, made homeless, starved and left vulnerable to disease - "hundreds of thousands will leave now". Duplicitiously, he termed this a “voluntary” mass emigration.

But such an outcome - itself a crime against humanity - entirely depends on Egypt opening its borders to allow Palestinians to flee the killing fields. If Cairo refuses to submit to Israel’s violent blackmail, it will be Israel’s bombs, the famine it inflicted, and the lethal diseases it unleashed that decimate Gaza’s population.

The International Court of Justice must not adopt a wait-and-see approach, pondering whether Israel’s bombing campaign and siege lead to extermination or “only” ethnic cleansing. That would strip international humanitarian law of all relevance.

Line in the sand

If Israel and its western allies fail to bludgeon the court into submission, and South Africa’s case is accepted, it will not only be Israel in legal difficulties.

A genocide ruling from the court will impose obligations on other states: both to refuse to assist in Israel’s genocide, such as by providing arms and diplomatic cover, and to sanction Israel should it fail to comply.

An interim order halting Israel’s attack will serve as a line in the sand. Once made, any state that fails to act on the injunction risks becoming complicit in genocide.

That will put the West in a serious legal bind. After all, it has not just been turning a blind eye to the genocide in Gaza; it has been actively cheering it on and colluding in it.

Leaders in the UK such as Prime Minister Rishi Sunak and opposition leader Keir Starmer have steadfastly opposed a ceasefire and thrown their weight behind a central pillar of Israel’s genocidal policy: the “complete siege” of Gaza that has left the population starving and facing lethal epidemics.

The British and US governments have rejected all calls to stop the flow of arms. The Biden administration has even bypassed Congress to speed up the supply of weapons to Israel, including indiscriminate “dumb” bombs that are laying waste to civilian areas.

Israel’s ambassador to the UK, Tzipi Hotovely, has regularly been featured by British media making genocidal statements. Just last week, when an interviewer noted that she appeared to be calling for the destruction of the whole of Gaza - every school, mosque and home - she answered: “Do you have another solution?”

British and US media have given airtime to Israeli officials who openly incite genocide.

All that would have to stop immediately after a ruling. The police in western nations would be expected to investigate and the courts prosecute those inciting genocide or providing a platform for incitement.

States would be expected to deny Israel weapons and impose economic sanctions on Israel - as well as on any states that collude in the genocide.

Israeli officials would risk arrest for travelling to western countries.

Double standards

In practice, of course, none of that is likely to happen. Israel is far too important to the West - as a projection of its power into the oil-rich Middle East - to be sacrificed.

Any effort to enforce a genocide ruling through the UN Security Council will be blocked by the Biden administration.

Meanwhile, the UK, along with Canada, Germany, Denmark, France and the Netherlands, have already demonstrated how unabashed they are about their own double standards.

Weeks ago they submitted formal arguments to the International Court of Justice that Myanmar was committing genocide against the Rohingya ethnic group. Their central argument was that the Rohingya were being subjected “to a subsistence diet, systematic expulsion from homes, and the induction of essential medical services below minimum requirement”.

But none of these western states is backing South Africa’s genocide submission to the same court - even though conditions in Gaza engineered by Israel are even worse.

The truth is that a genocide ruling by the court will open up a can of worms for the West, and its readiness to accept that the provisions of international law apply to it too.

Israel has been at the forefront of efforts to unravel international law in Gaza for more than a decade. Now it is ostentatiously flaunting its perpetration of the crime of genocide, as if daring the world to stop it.

Perversely, it is reversing the very international safeguards put in place to stop a repeat of the Nazi Holocaust.

Will the West defy Israel or the court? The post-war consensus that serves as the foundation for international law - already shaken by the failure to address the West’s war crimes in Iraq and Afghanistan - is on the verge of complete collapse.

And no one will be happier with that outcome than the state of Israel.

Jonathan Cook is the author of three books on the Israeli-Palestinian conflict, and a winner of the Martha Gellhorn Special Prize for Journalism. His website and blog can be found at www.jonathan-cook.net