The outcome of the ICJ case

Michael Murray

“Ceasefire!”

An appendix to an article elsewhere in this issue of Labour Affairs, about the human rights lawyer, Blinne Ní Ghrálaigh, KC, and her role in the South African legal team, lists the nine “Provisional Measures” sought in South Africa’s Application to the ICJ.

The first is: “The State of Israel shall immediately suspend its military operations in and against Gaza.” 

The second: “The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above

In her opening remarks the President of the Court explained that the Court was not bound to address individually the nine provisional measures sought by the South African team but that it would, effectively, address them in an order of its own choosing. 

The Six “Provisional Measures”  from the ICJ in response to the South Africa Application

First: “The court required Israel to take all measures within its power to prevent the commission of all acts constituting the physical elements of genocide; that is, killing members of the group, causing serious bodily or mental harm to members of the group, deliberating inflicting conditions of life on the group calculated to bring about its physical destruction, and imposing measures intended to prevent births within the group,”

Second: “The court ordered Israel to ensure with immediate effect that its military does not commit any of the genocidal acts listed in the first measure, underscoring the responsibility of the state for all acts of the Israel Defense Forces.”   

Third: “Israel should prevent and punish direct and public incitement to commit genocide.”

Fourth: “That Israel 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 Gaza.” 

Mark Lattimer, in “Lawfare,” published by the Lawfare Institute, 26 January 2024, draws particular attention to Provision Four and makes a telling point relevant to the recent US/UK-led attempt to cut off the cash flow to UNRWA, the body that has been the mainstay of the almost 6 million refugees spread across 58 refugee camps in the Lebanon, Syria, West Bank, Jordan and Gaza. And a blatant, pre-arranged response to an unfavourable ICJ verdict. Unfavourable to them, and Israel, that is. 

 He says:“This provision places an absolute duty on Israel to enable humanitarian assistance irrespective of the absence of a deliberate calculation to bring about group destruction, it also goes beyond the strict framework of the Genocide Convention. It sweeps aside, too, the efforts of Israel’s Coordinator of Government Activities in the Territories to lay the blame for failures in ensuring humanitarian access on United Nations agencies.”

The Fifth provisional measure lays down Israel’s duty to prevent the destruction and ensure the preservation of evidence relating to allegations of genocidal acts.

The Sixth provisional measure requires Israel to report back to the court onUNRWA all measures taken to give effect to the order. “Here, however,” Lattimer points out: “the court laid down a deadline of one month reflecting both the urgency of the situation and the court’s determination that its order should have an immediate effect.”  

Vindication 

I don’t believe it has sunk in yet: the gravity of what’s just happened, but it will. With the marchers and protesters and their organisers: Vindication!  We’re not involved in anti-semitism and hate-speech. We’re calling out racism, intolerance – and now albeit “plausible” genocidal behaviour. We’re on the right side of history.  And it’s going to get harder for the pro-Israelis to continue to weaponise anti-semitism and hate-speech after the ICJ. 

Meanwhile the pro-Israeli predominantly “Western” countries will get more isolated globally, as the 10 December last UN General Assembly vote indicated: 153 votes out of 193, back then, in favour of a Ceasefire in Gaza?  

Those votes, opinion polls and mass demonstrations are getting through to the US and UK-led coalition. (We won’t talk about the war, as Basil Faulty would advise. But it’s a factor too.)

The severely underfunded UNRWA is vulnerable and has been targeted as the soft underbelly of that which is standing in the way US and UK- led defence of their “little loyal Jewish Ulster in a sea of potentially hostile Arabism.” (“Gaza, Dawn of a New World,” Labour Affairs, December/January, 2023/4).  And it’s, frankly, hard to see how it’s going to be tackled. It’s clearly the first test for provisional measure number four. The agency’s financial situation remains uncertain with a shortfall in 2021 of $100,million  as of mid September, 2021. (The latest account to hand.)  

Years of underfunding on one hand, and heavy demand on its resources as a result of the ongoing political and social conflict has led to this. And, of course, as in all the developing world – we wrote about it in October last year in Labour Affairs – there’s the weaponisation of aid on one hand, and its fate under Tory and Labour fiscal rectitude on the other. (See October, 2023 Labour affairs: Labour and Tories’ U-turning on development aid commitments.)

Finally, UNRWA commissioner general Philippe Lazzarini has said this funding suspension is “shocking” as “the lives of people in Gaza depends on this support”.

“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,” he said.

The doubting Thomas’s:

Craig Murray is a former Ambassador to Uzbekistan.  He was forced out of his job by Tony Blair and Jack Frost for what they perceived as his over-zealous criticism of the Uzbek regime on human rights grounds.  

He was at the Hague, and managed to get himself a ringside seat. From his vantage point in the gallery he surveyed the scene as the Chair and Judges took their places. 

“It occurred to me,” he said. “That the people who really did not want to be in the Court at all were the judges, because it is in fact the judges and the Court itself on trial. 

“The fact of genocide is incontrovertible and had been plainly set out. But several of the judges are desperate to find a way to please the USA and Israel and avoid countering the current Zionist narrative, the adoption of which is necessary to keep your feet comfortably under the table of the elite.

“What counts more for them, personal comfort, the urgings of NATO, future wealthy sinecures? Are they prepared to ditch any real notion of international law for those things?

“That is the real question before the court: The International Court of Justice is on trial.” 

He wasn’t alone in that opinion.  Another was the political analyst, Intellectual and moral giant, Norman Finkelstein. 

To their credit both of them put their hands up to admit they’d got it wrong. Israel fought the law and the law won.

Murray had been particularly critical of Joan Donoghue, President of the Court, of whom Mark Lattimer, quoted earlier, said: 

“On what is arguably Law’s greatest stage, we heard an American presiding judge read out the ruling of the World Court that Israel must ensure that its military forces do not commit acts of genocide.” 

(This article was not on time for the printed edition of Labour Affairs)

The photo above shows the International Court of Justice at The Hague.