By Mohamed Harees –

Lukman Harees

Before 7 October, the Nakba (1948 catastrophe) could only be imagined or read about in terms of statistics on ethnic cleansing and its related destruction. Zionism has now illustrated to the world what genocide looks like (with 22K+ killed), and Western governments particularly are paying slight heed, if only to prevent themselves from getting further embroiled in the repercussions of Israel’s fabricated security narrative. Israeli media recently reported a leak which stated that Netanyahu( Bibi) has been pushing for plans to implement “voluntary migration” on the Palestinians in Gaza to other countries, and therefore the idea was not just the concoction of the two ultra-rightist Ministers in his cabinet- Smotrich and Ben-Gvir as US made out to be. In fact, Israel was built upon the ethnic cleansing and forced transfer of the Palestinian people. In this context, even conceptualising the proposed forced transfer of Gaza’s Palestinian population is thus a continuation of the Nakba and lends additional evidence of Israeli impunity.

As bold Israeli Journalist Gideon Levy says, ‘since the judicial system in Israel systematically absolves those who blatantly carry out  crimes in occupied territories , a situation is created whereby Israel, its government, its military and other organisations operate with an impunity that is automatic, blind, continuous and almost total. Soldiers serving in the occupied territories know very well that nearly anything they do is treated as permissible: shooting, killing, abusing, humiliating. They will never be punished, not by Israel nor by anyone else. No one is ever held responsible, beyond those who try to change this distorted situation. If a report is written, Israel will not even read it, and its ambassador will shred the text on the world’s most respected international stage. If anyone dares to launch an inquiry, Israel will quickly make it disappear’.

Israel only needs to stand at the most respected podium on earth and tear up the evidence of its transgressions and the US nods its head in approval. Resolution 3379 declared that “Zionism is a form of racism and racial discrimination”. On 10 November 1975, the late Chaim Herzog, then Israel’s ambassador to the United Nations and the father of President Isaac Herzog, stood on the podium at the UN General Assembly and dramatically tore up the text of Resolution 3379, adopted that same day. Years passed. The UN rescinded that decision in December 1991, but another few decades later, everything looks different again. Zionism, is not any different from what was presented in the original UN decision. The gesture made by Herzog senior at the UN podium – shredding the pages of a decision that the majority of the world’s nations had accepted as lawful – seems more acceptable  today than it did at the time. Israeli Ambassador to the UN Gilad Erdan dramatically tore up a report by the organization’s UN Human Rights Council during an address at the UN General Assembly in 2021. Such is Israeli impunity!

Thus, the rest of the world might take a hard line about Israel rhetorically, but the nonsensical veto power of the US and the blind support of the major Western nations,  instantly comes to Israel’s defence in the face of any potentially damaging action. No other country has anything like Israel’s spectrum of impunity. No other army is treated as guiltlessly, despite perpetuating an occupation and committing all the avoidable and unavoidable crimes that are part and parcel of this illegal situation. There has been no accountability whatsoever for the long list of crimes committed in the territories under Israel’s occupation. The Israeli leaders have, through endless repetition, been desensitized by their Western sponsors to consideration of consequence.

As Israel continues to reject the UN Security Council ( of course vetoed by US) and GA resolutions calling for a ceasefire in Gaza, the world at large has failed to hold Israel legally accountable for war crimes and unravelling genocide in Gaza. Already the U.N. fact-finding mission on the Gaza Strip, the so-called Goldstone Report, after the name of Richard Goldstone, the famous South African judge, had reached in 2009, that the closure of the Gaza Strip that had been imposed continuously since 2007 was unlawful, collective punishment of the civilian population of Gaza and a possible crime against humanity. The conclusions were in the sense of the commission of the crime of persecution, a very grave crime against humanity, exactly because there was this disproportionate, collective punishment on an entire population, 2 million people of Gaza, with the declared purpose by the Israeli authorities to ‘try to break their support to Hamas’. The same premise holds true in the present ongoing genocidal war on Gaza as well.

As of this Christmas, 300 UNRWA( United Nations Relief and Works Agency for Palestine Refugees in the Near East)employees, all of whom are Palestinians, have been killed in Gaza since Oct 7. Arguably, the targeting of UNRWA facilities – much like the destruction of Gaza’s schools, hospitals, mosques, and churches – falls within the Israeli policy known as the Dahiyeh Doctrine. Envisioned by Israeli army top general Gadi Eizonkot during the 2006 onslaught on Lebanon, this military doctrine encourages the obliteration of civilian infrastructure to exercise pressure on the population to turn against armed resistance forces. In Gaza, the doctrine has been intensified and expanded to drive a wedge between the people and the resistance through shock and awe, as well as render Gaza inhabitable, which would further Israel’s plans to depopulate Gaza.

What Israel is doing after the 7th of October in Gaza — is in grave violations of international humanitarian law, meaning the law, the rules that regulate war, the armed conflict. These very grave crimes need to be analyzed under the lenses of war crimes, of crimes against humanity and also genocide going by the intents expressed by clear statements from the Israeli President, PM, Ministers and also senior officers of the Military. Unfortunately,  every previous attempt by Palestinians, and others on their behalf to use the International Criminal Court and other institutions of international justice to hold Israeli officials legally accountable has been sidelined or delegitimized as lawfare. the ICC really subjected the Palestinian complaints to this obstacle course over 15 years, to the point that in all of that time there has been no — no charges have ever been brought. And this includes the things that — the decades of Israeli occupation, the collective punishment, the apartheid, the war crimes that were — the illegal settlements. Settlements are illegal under international law, to bring people into an occupied territory.

Consider the hypocrisy and double standards of the Western world! Just compare this to the Russian invasion of Ukraine. Right after the Russian invasion, as the war crimes started to mount, the International Criminal Court and most of the Western justice systems did what they were supposed to do. Immediately ICJ prosecutor Karim Khan went to Ukraine, talked about it as a crime scene, raised an enormous amount of money for the ICC’s investigation, and has already, in fact, issued an arrest warrant against Vladimir Putin for the transfer of Ukrainian children. Compare that then to Palestine, where none of this has happened. Karim Khan, who was criticized for not doing anything, for not moving, went finally to the Rafah crossing recently. He followed it up with a very powerful speech from Cairo in which he spoke about the crimes that were. But nothing happened thereafter.

The fact that there was no accountability for the decades of occupation and crimes related to the occupation has created a sense of impunity. In fact, the ICC has been facing a lot of pressure from the US, which is not even “a party to the ICC,” to “not go too far on Israel.”  Even complaints filed in Europe against Israeli leaders on the basis of universal jurisdiction have not only been thrown out, but in some instances, the laws themselves, as in Spain, Belgium and the UK, were curtailed “so that such cases could not be brought to the ICC in the future.” As many UN rapporteurs have said, these decades of inactivity by the ICC and other institutions have created a sense of impunity, and that Israel could act with impunity. France, Canada, and Australia, and a dozen other nations, stress that ‘Israel, as the occupying power, must protect the Palestinian civilian population in the West Bank’ with proactive measures. The Western powers do not press the ICC to become involved in any potential war crimes or crimes against humanity perpetrated by Israel which has always enjoyed impunity no matter what it does. This has given Bibi’s extreme-right government, a green-light to act as it pleases in Gaza whatever the cost to Palestinians who live there.

In fact, when the UN Secretary-General, Antonio Guterres, said that there is a context to Hamas attacks in October and throughout the UN’s history, they had never witnessed the death of UN staff in such large numbers, Israel reacted to the criticism with indifference or by repeating the tropes about the UN being in the same trench as Hamas, or whoever stands against Israel’s occupation, the PA included. To escalate further, Israel announced it was not going to renew the visa of a UN staff in the country and would also deny the visa application of another following the UN’s criticism of Israel’s unprecedented targeting of Gaza’s civilians and its civilian infrastructure. The level of Israeli impunity that has come with the Gaza war seems to have presented the Israeli government with a rare opportunity to achieve what it had failed to achieve under different circumstances: to cripple Gaza amenities and the UNRWA and what it represents, politically and logistically. Perhaps herein lies Israel’s ultimate goal: To make Gaza’s reconstruction and governance after the war impossible, or as difficult as possible, even for the United Nations and the international community.

It was in this context that another important development has become a turning point. As the Muslim nations were only confining its lukewarm ‘opposition’ to Gaza genocide to rhetoric and resolutions in the UN, it was left to South Africa in the closing days of 2023, to file an application instituting proceedings against Israel before the ICJ.  South Africa alleges that Israel’s conduct in Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide both by committing genocide against Palestinians in Gaza, and by failing to prevent it, including by failing to hold senior Israeli officials and others accountable for their direct and public incitement to genocide. The application concludes by requesting a series of “provisional measures,” including that Israel immediately suspend its military operations in Gaza. The application expectedly set off a firestorm, with the accusation of genocide particularly gut-wrenching for many Israelis, as the Holocaust, in which six million Jews were killed, was the impetus for the very treaty that Israel is now accused of violating. Israel was furious and says it will appear before the International Court of Justice at The Hague to dispel so called South Africa’s absurd blood libel”, obviously equating the application with antisemitic slander against Jews. Anything against the Israeli government is today deemed antisemitic .   

Legal experts claim that whatever one thinks of the merits of South Africa’s claims, the case demonstrates that the new form of standing recognized by the Court—“erga omnes partes standing” (standing based on obligations “in relation to everyone,” or owed to all), has the potential to revolutionize the enforcement of long under-enforced human rights treaties. In the Gaza war, international legal attention has been more focused on possible Israeli violations of international humanitarian law (IHL) than on possible violations of the Genocide Convention. The reason that the IHL claims are not at issue in this case is simple: The ICJ does not have jurisdiction over them. The International Criminal Court likely does, however, and its prosecutor has already begun an investigation of the situation in Gaza. The Genocide Convention, by contrast, does squarely provide for ICJ jurisdiction.  To establish jurisdiction, South Africa has to demonstrate that its dispute with Israel relates to the interpretation, application, or fulfilment of the Genocide Convention. To that end, South Africa argues that the dispute concerns both South Africa’s own obligations as a State party to the Genocide Convention to undertake to prevent genocide, as well as Israel’s compliance with its obligations under the Convention. As evidence of genocidal intent, South Africa points to both repeated statements made by Israeli State representatives, including the Prime Minister and President, and the conduct of Israel’s military operation in Gaza.

It’s thus increasingly clear that consequences for Israel’s actions are not only a moral imperative, but necessary to stave of the collapse of human rights law and international institutions. The hypocrisy of liberal democracies and international institutions such as the EU, who preach the importance of the rule of law and protecting human rights while giving Israel licence to act as they please, leaves a moral vacuum about the validity of social democracy for which progressive political figures and regimes have no answer. It breeds mistrust and scepticism about the efficacy of these legal protections. Although the world is now eagerly waiting for the ICJ outcome to stop this genocide in Gaza, it may not be enough on its own. The adoption by third states of effective coercive measures such as sanctions, will also remain equally important to challenging Israeli impunity in the months and years to come.