War on Gaza: Western racism laid the foundations for this genocide
It should surprise no one that the prize-match fight for the rule of international law has pitted Israel and South Africa against each other at the International Court of Justice at The Hague.
The world is split between those who have crafted a self-serving global and regional order that guarantees them impunity whatever their crimes, and those who pay the price for that arrangement.
Now the long-time victims are fighting back at the so-called World Court.
Last week, each side presented its arguments for and against whether Israel has implemented a genocidal policy in Gaza over the past three months.
South Africa’s case should be open and shut. So far Israel has killed or seriously wounded close to 100,000 Palestinians in Gaza, almost one in every 20 inhabitants. It has damaged or destroyed more than 60 percent of the population’s homes. It has bombed the tiny “safe zones” to which it has ordered some two million Palestinians to flee. It has exposed them to starvation and lethal disease by cutting off aid and water.
Meanwhile, senior Israeli political and military officials have openly and repeatedly expressed genocidal intent, as South Africa’s submission so carefully documents.
Back in September, before Hamas’ break-out from the Gaza prison on 7 October, Israeli Prime Minister Benjamin Netanyahu had shown the United Nations a map of his aspiration for what he termed “the New Middle East”. The Palestinian territories of Gaza and the West Bank were gone, replaced by Israel.
Despite the mass of evidence against Israel, it could take years for the International Court of Justice (ICJ) to reach a definitive verdict - by which time, if things carry on as they are, there may be no meaningful Palestinian population left to protect.
South Africa has therefore also urgently requested an interim order effectively requiring Israel to stop its attack.
Opposing corners
The peoples of Israel and South Africa still carry the wounds of the crimes of systematic European racism: in Israel’s case, the Holocaust in which the Nazis and their collaborators exterminated six million Jews; and in South Africa’s, the white apartheid regime that was imposed on the black population for decades by a colonising white minority.
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They are in opposite corners because each drew a different lesson from their respective traumatic historical legacies.
Israel raised its citizens to believe that Jews must join the racist, oppressor nations, adopting a “might makes right” approach to neighbouring states. A self-declared Jewish state sees the region as a zero-sum battleground in which domination and brutality win the day.
It was inevitable that Israel would eventually spawn, in Hamas and groups like Hezbollah in Lebanon, armed opponents who view their conflict with Israel in a similar light.
South Africa, by contrast, has aspired to carry the mantel of “moral beacon” nation, that western states so readily ascribe to their top-dog, nuclear-armed Middle Eastern client state, Israel.
South Africa’s first post-apartheid president, Nelson Mandela, famously observed in 1997: “We know too well that our freedom is incomplete without the freedom of the Palestinians.”
Israel and apartheid South Africa were close diplomatic and military allies until apartheid’s fall 30 years ago. Mandela understood that the ideological foundations of Zionism and apartheid were built on a similar racial supremacist logic.
He was once cast as a terrorist villain for opposing South Africa’s apartheid rulers, much as Palestinian leaders are by Israel today.
Jackboot of colonialism
It should also not surprise us that lined up in Israel’s corner is most of the West - led by Washington and Germany, the country that instigated the Holocaust. Berlin asked last Friday to be considered a third party in Israel’s defence at The Hague.
Meanwhile, South Africa’s case is backed by much of what is called the “developing world”, which has long felt the jackboot of western colonialism - and racism - on its face.
Notably, Namibia was incensed by Germany’s support for Israel at the court, given that at the outset of the 20th century, the colonial German regime in south-west Africa herded many tens of thousands of Namibians into death camps, developing the blueprint for the genocide of Jews and Roma it would later refine in the Holocaust.
The Namibian president, Hage Geingob, stated: “Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza.”
The panel of judges - 17 of them in total - do not exist in some rarified bubble of legal abstraction. Intense political pressures in this polarised fight will bear down on them.
As former UK ambassador Craig Murray, who attended the two days of hearings, observed: most of the judges looked as if they “really did not want to be in the court”.
‘Nobody will stop us’
The reality is that, whichever way the majority in the court swings in its decision, the crushing power of the West to get its way will shape what happens next.
If most of the judges find it plausible that there is a risk Israel is committing genocide and insist on some sort of interim ceasefire until it can make a definitive ruling, Washington will block enforcement through its veto at the UN Security Council.
Expect the US, as well as Europe, to work harder than ever to undermine international law and its supporting institutions. Imputations of antisemitism on the part of the judges who back South Africa’s case - and the states to which they belong - will be liberally spread around.
Already Israel has accused South Africa of a “blood libel”, suggesting its motives at the ICJ are driven by antisemitism. In his address to the court, Tal Becker of the Israeli foreign ministry argued that South Africa was acting as a legal surrogate for Hamas.
The US has implied much the same by calling South Africa’s meticulous amassing of evidence “meritless”.
On Saturday, in a speech littered with deceptions, Netanyahu vowed to ignore the court’s ruling if it was not to Israel’s liking. “Nobody will stop us - not The Hague, not the axis of evil, and not anybody else,” he said.
On the other hand, if the ICJ rules at this stage anything less than that there is a plausible case for genocide, Israel and the Biden administration will seize on the verdict to mischaracterise Israel’s assault on Gaza as receiving a clean bill of health from the World Court.
That will be a lie. The judges are being asked only to rule on the matter of genocide, the gravest of the crimes against humanity, where the evidential bar is set very high indeed.
In an international legal system in which nation-states are accorded far more rights than ordinary people, the priority is giving states the freedom to wage wars in which civilians are likely to pay the heaviest price. The gargantuan profits of the West’s military-industrial complex depend on this intentional lacuna in the so-called “rules of war”.
If the court finds - whether for political or legal reasons - that South Africa has failed to make a plausible case, it will not absolve Israel of war crimes and crimes against humanity. Indisputably, it is carrying out both.
Foot dragging
Nonetheless, any reticence on the part of the ICJ will be duly noted by the International Criminal Court (ICC), its heavily compromised sister court. Its job is not to adjudicate between states like the World Court but to gather evidence for the prosecution of individuals who order or carry out war crimes.
It is currently gathering evidence to decide whether to investigate Israeli and Hamas officials over the events of the past three months.
But for years, the same court has been dragging its feet on prosecuting Israeli officials over war crimes that long predate the current assault on Gaza, such as Israel’s decades of building illegal Jewish settlements on Palestinian land, and Israel’s 17-year siege of Gaza - the rarely mentioned context for Hamas’ break-out on 7 October.
The ICC similarly baulked at prosecuting US and British officials over the war crimes their states carried out in invading and occupying Afghanistan and Iraq.
That followed an intimidation campaign from Washington, which imposed sanctions on the court’s two most senior officials, including freezing their US assets, blocking their international financial transactions and denying them and their families entry to the US.
Terror campaign
Israel’s central argument against genocide last week was that it is defending itself after it was attacked on 7 October, and that the real genocide is being carried out by Hamas against Israel.
Such a claim should be roundly dismissed by the World Court. Israel has no right to defend its decades-long occupation and siege of Gaza, the background to the events of 7 October. And it cannot claim it is targeting a few thousand Hamas fighters when it is bombing, displacing and starving Gaza’s entire civilian population.
Even if Israel’s military campaign is not intended to wipe out the Palestinians of Gaza, as all statements by the Israeli cabinet and military officials indicate, it is nonetheless still directed primarily at civilians.
On the most charitable reading, given the facts, Palestinian civilians are being bombed and killed en masse to cause terror. They are being ethnically cleansed to depopulate Gaza. And they are being subjected to a horrifying form of collective punishment in Israel’s “complete siege” that denies them food, water and power - leading to starvation and exposure to lethal disease - to weaken their will to resist their occupation and seek liberation from absolute Israeli control.
If all of this is the only way Israel can “eradicate Hamas” - its stated goal - then it reveals something Israel and its western patrons would rather we all ignore: that Hamas is so deeply embedded in Gaza precisely because its implacable resistance looks like the only reasonable response to a Palestinian population ever more suffocated by the tightening chokehold of oppression Israel has inflicted on Gaza for decades.
Israel’s weeks of carpet bombing have left Gaza uninhabitable for the vast majority of the population, who have no homes to return to and little in the way of functioning infrastructure. Without massive and constant aid, which Israel is blocking, they will gradually die of dehydration, famine, cold and disease.
In these circumstances, Israel’s actual defence against genocide is an entirely conditional one: it is not committing genocide only if it has correctly estimated that sufficient pressure will mount on Egypt that it feels compelled - or bullied - into opening its border with Gaza and allowing the population to escape.
If Cairo refuses, and Israel does not change course, the people of Gaza are doomed. In a rightly ordered world, a claim of reckless indifference as to whether the Palestinians of Gaza die from conditions Israel has created should be no defence against genocide.
War business as usual
The difficulty for the World Court is that it is on trial as much as Israel - and will lose whichever way it rules. Legal facts and the court’s credibility are in direct conflict with western political priorities and war industry profits.
The risk is the judges may feel the safest course is to “split the difference”.
They may exonerate Israel of genocide based on a technicality, while insisting it do more of what it isn’t doing at all: protecting the “humanitarian needs” of Gaza’s people.
Legal facts and the court’s credibility are in direct conflict with western political priorities and war industry profits
Israel dangled just such a technicality before the judges last week like a juicy carrot. Its lawyers argued that, because Israel had not responded to the genocide case made by South Africa at the time of its filing, there was no dispute between the two states. The World Court, Israel suggested, therefore lacked jurisdiction because its role is to settle such disputes.
If accepted, it would mean, as former ambassador Murray noted, that, absurdly, states could be exonerated of genocide simply by refusing to engage with their accusers.
Aeyal Gross, a professor of international law at Tel Aviv University, told the Haaretz newspaper he expected the court to reject any limitations on Israel’s military operations. It would focus instead on humanitarian measures to ease the plight of Gaza’s population.
He also noted that Israel would insist it was already complying - and carry on as before.
The one sticking point, Gross suggested, would be a demand from the World Court that Israel allow international investigators access to the enclave to assess whether war crimes had been committed.
It is precisely this kind of “war business as usual” that will discredit the court - and the international humanitarian law it is supposed to uphold.
Vacuum of leadership
As ever, it is not the West that the world can look to for meaningful leadership on the gravest crises it faces or for efforts to de-escalate conflict.
The only actors showing any inclination to put into practice the moral obligation that should fall to states to intervene to stop genocide are the “terrorists”.
Hezbollah in Lebanon is putting pressure on Israel by incrementally building a second front in the north, while the Houthis in Yemen are improvising their own form of economic sanctions on international shipping passing through the Red Sea.
The US and Britain responded at the weekend with air strikes on Yemen, turning up the heat even higher and threatening to tip the region into a wider war.
With its own investments in the Suez Canal threatened, China, unlike the West, seems desperate to cool things down. Beijing proposed this week an Israel-Palestine peace conference involving a much wider circle of states.
The goal is to loosen Washington’s malevolent stranglehold on pretend “peace-making” and bind all the parties to a commitment to create a Palestinian state.
The West’s narrative is that anyone outside its club - from South Africa and China to Hezbollah and the Houthis - is the enemy, threatening Washington’s "rules-based order".
But it is that very order that looks increasingly self-serving and discredited - and the foundation for a genocide being inflicted on the Palestinians of Gaza in broad daylight.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
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