The misapprehension that ‘might is right’ in international relations was the case in the time of 19th century colonial conquest when territories could be legally seized. The practice of the Israeli state is in closer conformity to that earlier understanding of international law than later developments that have ensued. Part One in a series.

South Africa’s case against Israel in the International Court of Justice (ICJ) is one of the few international law questions that has seen a resounding victory for basic principles of freedom that many millions were demanding outside the court while the population of Gaza was being decimated (South Africa’s application was very carefully prepared and is accessible to non-lawyers interested in the Israel/Palestinian conflict). 

It was one of the triggers for worldwide protests all over the world, continuing and multiplying, calling for a ceasefire, an end to the genocide and a free Palestine.

The joy that the ICJ victory evoked among supporters of Palestinian freedom from unlawful attacks has however coexisted with a degree of demoralisation. This is because Israel has continued to ignore the decision and pummel the people of Gaza and what remains of the institutions of the territory, and the 1.5-million people crammed into the southernmost tip, Rafah, on the border with Egypt. 

The total population of Gaza was initially 2.3-million, but it may have shrunk significantly with over 31 500 known dead, but unknown numbers buried and unrecovered under the rubble.

The failure to have a binding decision of the ICJ implemented has led some to question the power and value of international law. The ICJ’s decision in the preliminary hearing accepted all South Africa’s evidence for an intention - on the part of Israel - to commit genocide and acts that constituted that crime, “plausibly”.

There could not be a final decision on genocide because that is for a later trial and this was a preliminary hearing to adopt urgent measures. (See Franny Rabkin’s article that may still be behind a paywall, and that of Faranaaz Veriava. The court order can be found here).

While not agreeing to rule for a ceasefire, the court imposed a number of duties on Israel to avert genocide which was found by the court as being plausibly identified as already happening. The duties imposed on Israel to prevent genocide were in fact similar to what would have been required for a ceasefire.

That precise word “ceasefire” could not in any case have been ordered because Hamas - the other party in the military conflict - is not a state and thus not a party to the proceedings. The people of Gaza against whom Israel was indeed waging war were in the main unarmed civilians.

Israel, as we see in our media every day, with the United States and backing of other Western allies, has continued without respite to perpetrate the same deeds as led to the charge of genocide. This has created shortages of key requirements for human existence, including food, water, medication and healthcare facilities that are generally not allowed to reach the remaining inhabitants of Gaza or have been destroyed.

Is international law the problem?

A number of people with whom I have spoken, including some lawyers, believe the key problem with the Palestinian/Israeli conflict is international law and the laws of war itself. Some activists with whom I have spoken refer to international law as a colonial construct.

We need to have accurate expectations of what the law can achieve and how it can be done, even with so progressive a judgment as that of 26 January 2024. How can it be implemented, as legally required, or alternatively why can it be so easily ignored if such findings are cast as legally binding by the state signatories to the ICJ and the Genocide Convention that include Israel, South Africa and the United States? 

Balance of world power and how it bears on the war against the Palestinians

In the situation where there are significant manifestations of power, even if that power is exerted against the relatively weak and it appears to succeed in its objectives, it is easy to conclude that the international order is fairly stable. This may be the case, even if law is being undermined. It may appear as an imposed stability, but does that not still signify a stable international order?

This type of thinking is based on a misapprehension that “might is right” is the inevitable course of international relations and the understanding of the laws that it regulates. That was the case in the 19th century when many states were colonised and before the establishment of the United Nations and adoption of its Charter in 1945. In the earlier time of colonial conquest, territories could be seized as colonial conquests and settlements, and that was legally permissible.

In truth, the practice of the Israeli state is in closer conformity to that earlier understanding of international law than the later developments that have ensued.

International law and relations depend for efficacy on consensus, not coercion

The UN Charter and how it was adopted and how its interpretation evolved was the product of a changing consensus, as the notion of who comprised the “international community” changed and was enlarged with decolonisation. That did not mean that there were no more invasions or foreign involvement in coups d’état and other interference involving the use of force after 1945.

But there was a framework and an overriding consensus that put some restraint on acts of powerful states. That is not how some states relate today. The balance of forces in international relations today is one where the world watches lawless military attacks pass with apparent impunity for the aggressor. Victims of bombardment and other acts of destruction of people and institutions, and those who come to their aid diplomatically and in public demonstrations, say that they - “the world” -cannot be powerless to stop the violence, that is, in defiance of a binding ICJ decision.

Thirty five years ago, whatever the problems of the Cold War and that of the former USSR, there was a degree of consensus in international relations where two “superpowers” had nuclear weaponry, and this was one factor that restrained the use of force, (referred to as “mutual deterrence”). There were acts of force but there could have been far more of such international aggression had there not been some element of consensus prevailing.

‘New World Order’ and return to ‘might is right’

The current cynicism towards international law in relation to Gaza is based partly on decades of US-protected lawlessness perpetrated by the Israeli state that has correctly been characterised as an apartheid state. (That is not simply a polemical characterisation. Apartheid is now recognised in international law as a crime against humanity. Legally it did not disappear with apartheid South Africa, but comprises a crime with which states and citizens of states can be charged or face other consequences in international law.

This lawlessness preceded the current war on Gaza and has seen violence from the moment of the establishment of the Israeli state in 1948 (the Nakba or catastrophe) which saw massacres and 750 000 inhabitants of original Palestine driven out of their homes, and the succeeding 75 years saw continued unlawful occupation of further Palestinian territory.

Similar lawlessness prevailed in the US-led attack on Iraq, which also involved the UK, Australia and Poland. More recently, we have seen the continuing Russian illegal attack on Ukraine.

We have a situation where Israel is committing genocide against the Palestinian people, particularly in Gaza. It is doing this with the support of the most powerful state in the world, the United States, and in the main, with the support of its allies, especially the United Kingdom, Australia, Canada, Germany and one or two others, though there are emerging differences between some of its allies and the US as well as intense opposition to US support for Israel within the US and also allied states.

Litigation has been launched in or against these states for their complicity in the Israeli genocide; also by citizens of Australia against their government; and by Namibia against Germany, drawing on the 1908 genocide against the Nama and Herero, some of whose characteristics bear resemblance to actions of the Israelis.( See inter alia: Hamilton Wende). The Nicaraguan government has also entered litigation against Germany for its complicity in the Israeli genocide.

The Israeli attacks have continued for almost three months after a decision of the ICJ in a provisional hearing found that the allegation of genocide is plausible.

Genocide is of course not simply a term of abuse or a minor infringement of international law, like conflict over a boundary. Genocide, as even the Israeli counsel indicated, is known as the “crime of crimes”. This is because it entails the intention to exterminate a people through a range of actions, enumerated in the Genocide Convention adopted in 1948, binding on all states.

The definition of genocide in the Genocide Convention is worth quoting to see how precisely it fits the atrocities committed in Gaza:

Definition:

Convention on the Prevention and Punishment of the Crime of Genocide:

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 

Killing members of the group; 

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.

It is especially scandalous and embarrassing for the Israeli state to face such a charge insofar as it claims to be the state of the Jewish people and the Genocide Convention was in large measure prompted by the Holocaust against the Jews.

If, despite the gravity of the continued Israeli defiance of the court, with complicity of the states allied to the US (despite some differences now emerging within the alliance), how does one build a counterforce that can ensure compliance? I return to that and other issues in the articles that follow.

Raymond Suttner is an Emeritus Professor at the University of South Africa and a Research Associate in the English Department at University of the Witwatersrand. He served lengthy periods as a political prisoner. His current writings cover mainly contemporary politics, history, and social questions. He was originally a legal academic.  His twitter handle is @raymondsuttner.