Published by AstroAwani, image by AstroAwani.
With the International Court of Justice (ICJ) having issued its legally binding ruling for provisional measures as requested by the Republic of South Africa (RSA) against the State of Israel, how can the US as the strongest backer and ally of the Zionist entity as well as the leading Permanent Member of the United Nations Security Council (UNSC) continue to refrain from assuming responsibility to enforce and uphold international law and norms in this regard?
On January 26, 2024, the ICJ made its interim and preliminary ruling (consequent to the two-day hearing on January 11-12, 2024 arising from the application filed against the Zionist State of Israel by the RSA for indication of provisional measures as per Article 41 of the Statute of the ICJ as well as Article 75 of the Rules of Court, 1978) on the basis of six themes/limbs (as contained in the “Order” as the documented or written form of the ruling/judgment).
These legally binding provisional measures are as follows (under “VI. Conclusion and Measures to be Adopted, pp. 22-26):
- Zionist State of Israel “must in accordance with its obligations under the [international treaty of the Convention on the Prevention and Punishment of the Crime of Genocide – hereafter the “Genocide Convention”], in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II [i.e., the meaning and definition of genocide] …, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group”.
- The Zionist State of Israel must “… ensure with immediate effect that its military forces do not commit any of the above-described acts”.
- The Zionist State of Israel must also “… take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”.
- The Zionist State of Israel “must 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 the Gaza Strip”.
- The Zionist State of Israel “must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of [genocide]”.
- The Zionist State of Israel “must submit a report to the [ICJ] on all measures taken to give effect to the [provisional measures stated therein] within one month, as from [January 26, 2024]. The report so provided shall then be communicated to [the RSA], which shall be given the opportunity to submit to the [ICJ] its comments [therein].
As it is, the ICJ stopped short of definitively ordering for a cease-fire.
As such, this has coloured the perception of some quarters towards the ICJ ruling/judgment on the whole as a sort of “compromise” or “half-way house”. The non-unanimous votes for each of the provisional measures by the seventeen judges on the panel of the ICJ would have reinforced the perception that there’re some operative elements of favouritism, albeit constrained/confined as under and by the circumstances, i.e., in relation to the case mounted by the RSA as the Applicant in the form of the evidence marshalled and presented therein.
But, on the other hand, given that Hamas (Islamic Resistance Movement) as the de jure administrator of the Gaza Strip wasn’t a party to the Application Instituting Proceeding by the RSA, it’d have reeked of imbalance or partiality had the ICJ went ahead with the order for cease-fire.
Be that as it may, that the ICJ has agreed with the RSA (as the Applicant) for indication of the provisional measures enumerated thereto presupposes and implies and indeed is expressly grounded in the judicial recognition of a plausible case for genocide.
As ruled by the ICJ in the Order, “… the facts and circumstances mentioned [by the RSA as the Applicant] … are sufficient to conclude that at least some of the rights claimed by [the RSA] and for which it is seeking protection are [indeed] plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of [the RSA] to seek Israel’s compliance with the latter’s obligations under the [Genocide] Convention” (paragraph no. 54, p. 18).
This means the ICJ’s recognition that the RSA’s claim of genocide by the Zionist State of Israel against the Palestinians of the Gaza Strip has been prima facie (i.e., on the face of it) established – which warrants the ICJ to make a final ruling on the claim of genocide in the future.
Furthermore, the grant of provisional measures by the ICJ presupposes and implies the need for and instrumentality of a ceasefire in order for them to be effective, durable and sustainable in the first place.
The fate and status of the “hostages” held by Hamas in no way at all depends on the continuing Zionist aggression, much less the genocidal warfare inflicted upon the Palestinians, which is simply way out of proportion (the principle of proportionality), as an understatement here, to the October 7 penetration of southern Israel.
For the record, Hamas has been more than willing to negotiate for the releases of Israelis held in captivity in the Gaza Strip (see, e.g., “Hamas ready to negotiate release of more hostages, official says”, Nikkei Asia, December 14, 2023).
But the Zionist entity is determined as ever to prolong the misery, mayhem and destruction in the Gaza Strip as embodied by Netanyahu’s expressed and stated intention and avowed aim to continue until Hamas is completely destroyed (“Netanyahu vows to fight Gaza until Hamas is destroyed amid growing tensions between US and Iran”, The Print, December 26, 2023) – a far cry from before which was limited to “degradation” of military and related infrastructure and capability or otherwise also known as the “mowing the grass” strategy.
Of course, statements by other members of the current Zionist Cabinet have also been equally clear and unequivocal in the genocidal intent to clear the Gaza Strip of Palestinians to make way for re-settlement (“Israeli ministers join gathering calling for resettlement of Gaza”, Al Jazeera, January 29, 2024). The usual suspects here are the far-right elements in Netanyahu’s coalition – most notably National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich.
Given the ruling/judgment of plausible genocide by the ICJ, how can the US (and the UK too which also counts as among one of the strongest allies and hasn’t ceased and desisted from its arms exports to the Zionist entity) continue to be complicit in Israel’s own version of the Holocaust against the Palestinians in the Gaza Strip?
The US has shown no remorse and indication that it’ll seek to play the lead role in enforcing and implementing the ICJ ruling/judgment in whatever shape or form – even as it’s militarily and geo-politically considered the most powerful Permanent Member of the UNSC – as provided for under Article 94 of the UN Charter.
Has the US lost all moral compass, already?
Or perhaps, quite plausibly (pun intended), the world’s number one superpower never had one in the first place.
Can there be any more abject abnegation and dereliction of moral, political and legal responsibility by a superpower than as displayed here?
Where’s the much-vaunted “responsibility to protect” (R2P) doctrine that’s touted by the Anglo-American alliance in the form of the North Atlantic Treaty Organization (NATO) to the international audience as justification for the invasion of Libya in 2011?
Why aren’t the Palestinians in the Gaza Strip entitled to a similar or at least some kind of protection by the “international community” as embodied by the leadership of the US under the R2P doctrine?
And then too on the much higher threshold of immediacy/urgency (of “… real and imminent risk that irreparable prejudice will be caused to the rights claimed before the [ICJ makes its decision] … whereby [t]he condition of urgency … can ‘occur at any moment’ [i.e., or even in the living present – as a clear and present danger], paragraph no. 61, p. 19) and the much lesser effort of compelling the Zionist entity as a close ally (and not enemy or hostile party in the case of Libya under the late Muammar Ghaddafi) to cease and desist?
The doctrine of R2P as interpreted and applied in the Libyan intervention is itself grounded and based on paragraphs 138 and 139 of the 2005 World Summit Outcome Document of the UN General Assembly (UNGA) Resolution (adopted on September 16).
Paragraph 139 reads: “The international community, through the [UN], also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the [UN] Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, [the UNGA] are prepared to take collective action, in a timely and decisive manner, through the [UNSC], in accordance with the [UN] Charter, including Chapter VII [with Articles 41 and 42 as especially relevant here], on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
Paragraph 139 went on to state that the UNGA “… stress the need … to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the [UN] Charter and international law. [The UNGA] also intend to commit … as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out”.
In turn, it could well be said that the R2P doctrine is inspired by the liberal school of thought in international relations (IR) which would closely comport and align with the political ideology/worldview of the current Biden administration in particular and the Democrat party tradition in general (not to mention of successive governments of post-colonial UK).
So, why has the R2P doctrine fallen into disuse in the context of the on-going genocidal nature of the conflict in Gaza?
Should the US continue to fail in its moral, political and legal duty to compel Israel to cease and desist from genocide in the Gaza Strip, then the world’s leading superpower and “unrivalled” hegemon have no standing whatsoever to oppose other countries, especially with particular reference to those in the region, from taking the necessary and imperative measures to protect Palestinians (both in their capacity as fellow religionists and on humanitarian grounds, no less, as well as driven by geostrategic and geo-security interests) and their sacred lands/territories from being permanently encroached and violated and, finally, irrevocably lost.
At the same time, the US has also lost all moral standing as a Permanent Member of the UNSC and should, in fact, be expelled therefrom.
Notwithstanding, even with the status quo, both the US and Israel are fast sliding on descent into becoming pariah states, at least in principle, something which simply can’t be denied.
Secretary of State Anthony Blinken’s recent tour of the region to seek for an “enduring end” to the conflict (or rather genocide) in Gaza is utterly meaningless if the US doesn’t intend to apply direct – both overt and covert – pressure on Israel to cease and desist from genocide by immediately and unconditionally implementing a permanent ceasefire.
Even if the US can’t bring itself to use the word, “genocide”, which is to be expected, at the very least, the Biden administration must warn Netanyahu officially and personally and cut off all aid (military and non-military) to Israel at once as well as immediately suspend any military exercises and operations (joint or otherwise).
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.
