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Can the World Court stop Israel?

An interview with Dr. Gregory H. Stanton, Founding President, Genocide Watch

Karachi Express Tribune Magazine

February 4, 2024

By Hammad Sarfraz

Palestinian overlooking devastation caused by Israeli bombing of Gaza. credit: Karachi Express Tribune

Last month, the International Court of Justice, the United Nations' highest court, issued an interim ruling, instructing Israel to take all necessary measures to prevent acts of genocide in Gaza. However, the World Court stopped short of demanding a halt to the military offensive against Palestinians in the enclave.

In its landmark 84-page case at the International Court of Justice (ICJ), South Africa characterized Israel's actions in Gaza as genocide. In response, Israel rejected the allegation, claiming its ongoing military campaign in Gaza is self-defense, necessary to eliminate Hamas, and stating firmly that the conflict cannot stop without achieving this goal.

South Africa formally requested the ICJ to issue an immediate cessation of hostilities order to Israel, alleging a violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This convention, established after World War II and the Holocaust, defines genocide as acts such as killings committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.

Delivering the 45-minute judgment at the court in The Hague, presiding judge Joan Donoghue, a former US State Department official, rejected Israel’s primary claim that the court lacks jurisdiction to hear South Africa’s case. Subsequently, in its ruling, the court ordered Israel to immediately implement measures to limit harm to Palestinians in Gaza, instructing it to:

● Prevent acts prohibited in the 1948 UN genocide convention, including:

  • killing Palestinians,

  • causing them serious bodily or mental harm,

  • deliberately inflicting conditions of life calculated to bring about their physical destruction in whole or in part.

● Prevent and punish statements constituting incitement to genocide against Palestinians in Gaza.

● Ensure the provision of basic services and humanitarian aid to address adverse conditions of life in Gaza.

● Preserve evidence related to allegations of genocidal acts.

● Report back to the court within one month on its compliance with the orders.

Imbued with historical significance, the ruling by the World Court is seen as a legal and moral victory for the Palestinians. However, analysts contend that, despite the binding nature of the order, the absence of enforcement mechanisms will eventually hinder its effectiveness in safeguarding the people of Gaza from the genocidal war machine.

According to ReliefWeb, a humanitarian information service by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), intense Israeli bombardment from air, land, and sea continued across much of the Gaza Strip on 28 and 29 January after the World Court’s ruling, leading to additional casualties, displacement, and destruction.

So far, more than 27,000 people have been killed and 66,000 injured in the ongoing Israeli military offensive against Hamas. Gaza’s Health Ministry reports that over half of those killed are women and children.

Reports by the United Nations Relief and Works Agency (UNRWA), the main lifeline for millions of Palestinian refugees in Gaza, the West Bank, Jordan, Lebanon, and Syria, state that an estimated 1.7 million internally displaced persons (IDPs) exist in the war-torn territory. The agency notes that most of them have been displaced multiple times as families have been forced to move repeatedly in search of safety.

Since the October 7th attack by Hamas that resulted in a massive military operation by Israel, Gaza’s healthcare, according to WHO reports, remains fragile. The seven partially functional hospitals are only providing limited maternity, trauma, and emergency care services due to the severe shortage of supplies and healthcare workers.

While the conflict in the Middle East persists without any apparent slowdown, experts provide mixed responses to the recent ruling by the United Nations’ top judicial body.

To analyze the January 26 court decision and the escalating hostilities in the region, the Express Tribune reached out to Dr. Gregory H. Stanton, the founder of Genocide Watch, a nonprofit group that raised warnings ahead of the massacres in Rwanda in the 1990s.

In a no-holds-barred interview, Dr. Stanton, also a former professor in genocide studies and prevention at George Mason University, underscores the likelihood of major war crimes and crimes against humanity occurring on both sides of the conflict.

He believes that last month’s ICJ ruling carries significant weight, indicating a growing international commitment to enforcing laws against genocide.

However, he cautions that if the goal is to prevent war crimes, efforts must be intensified to bring an end to the ongoing conflict, which currently shows no signs of resolution.

Palestinian children who hope to play football in rubble left by Israeli bombing. Credit: Karachi Express Tribune

ET: How do you view the current situation in Gaza? Would you consider it approaching genocide?

GHS: You'll notice in the provisional measures ruling by the International Court of Justice that they did not explicitly state whether it's genocide or not. But they ordered that both parties (Israel and Hamas) commit no acts of genocide. In other words, it's very clear that acts bordering on genocide are, in fact, a possibility here.

The reason I say that is because the ICJ's own doctrines about genocide are very narrow. In its Bosnia and Croatia decisions, the ICJ found that the court did not have conclusive proof that Serbia had violated the Genocide Convention.

The reasoning the ICJ provided in those cases is that to prove genocide, the ICJ requires conclusive proof of genocidal intent. The ICJ stated that genocide must be the ONLY intent of a state charged with genocide. They found that Serbia also had the intent of "ethnic cleansing" in both of those cases. Therefore Serbia had not been proven to possess ONLY genocidal intent.

[I refrain from using the term 'ethnic cleansing,' because I don't believe it is against any treaty in international law. The ICJ should have called it "forced displacement."]

There was an additional intent by Serbia. Therefore intent to commit genocide was not proven. That is why I think, in this case, Israel is likely to be let off the hook because it clearly has the additional intent of defeating Hamas. In other words, it's a war intent. Israel can claim many other intentions here, and Israel does.

That's why the ICJ is unlikely to determine that Israel has committed genocide. However, it doesn't dismiss the possibility that Israel may be involved in major war crimes and crimes against humanity, both serious offenses under international law.

If Israel is committing genocide, that’s a significant accusation, especially against a state founded out of a genocide—namely, the Holocaust. Israel is outraged at being charged with genocide, as if being a victim of genocide means one can’t commit genocide, which is also legally incorrect. Even if genocide has been committed against a people or a state, that state can commit genocide itself. In fact, many countries have committed genocide that still don't want to admit that they did so, like the United States.

So I'm unwilling to say that this is a genocide only because I don't make international law. Unfortunately, the ICJ does.

The ICJ's doctrine of specific intent for genocide is so wrong that if you liken it to, for instance, intent in ordinary criminal law, it's like saying that if somebody picks up a gun, shoots and kills someone, they can't be charged with murder because they also had the intent to rob the person.

It's a fact that the intent of a state has to be even more complicated and more complex than the intention of an individual. No individual can possibly commit an act, almost any act, that only has one intention. So, this doctrine by the ICJ, I think, is fatally flawed.

It's also interesting that Joan Donoghue, who is the President of the ICJ, was the leader of those in the US State Department when she was the Principal Deputy Legal Adviser, who would not call the Rwandan genocide a genocide for over three months. She was the leader of that group of genocide deniers.

So, in addition to the ICJ's flawed doctrine of intent, you've got a genocide denier as the President of the top UN court.

It's very strange to see the whole Genocide Convention being interpreted by people who, I think, don't understand what specific intent means, and they include at least one major genocide denier, the President of the World Court.

ET: How does the ICJ ruling align or differ from previous international legal decisions regarding conflicts that border on genocide?

GHS: The only two that directly border on genocide are the Bosnia and Croatia decisions. The South Africa v Israel case does not differ from previous ICJ rulings in other ways as well. This is a typical traditional trajectory for a legal case in the ICJ.

The first step is to decide on jurisdiction. The ICJ has decided that it has jurisdiction over the case here because it concerns the interpretation of the Genocide Convention. The Genocide Convention specifically says that the ICJ does have jurisdiction over disputes concerning its interpretation. So, that's the first step.

The second step is that one party may request provisional measures against the other party, and in general, those provisional measures are to preserve the status quo. They are usually designed to prevent the dispute from becoming any worse.

By saying that Israel must not commit acts of genocide, the Court is simply saying, "Hold the situation where it is. If you are planning any acts of genocide, please don't do them."

Remember this: this order also applies to Hamas. The Court is saying to all parties: "Don't commit any acts of genocide."

The other thing the Court is ordering Israel to do is they're ordering Israel to preserve any evidence that could affect this case, in other words, any evidence that there were acts of genocide.

Well, that's a big order. It's one of the reasons why this case is as important for what it didn't say as what it did say. The Court didn't order a ceasefire.

The ICJ has the power to order a ceasefire. And they could have done that. They did try that in the Ukraine v Russia case. One of the reasons the Court didn't order a ceasefire is, I think, they realized they don't have any way to enforce such an order. Courts never want to make a ruling they cannot enforce. It shows their powerlessness.

In this case, the ICJ knows it doesn't have the power to enforce a ruling ordering a ceasefire. All the ICJ has the power to do is to order the parties in the case not to do anything further that would harm one side or the other in this case. And that is to order that there be no more acts of genocide if there are such acts being committed now.

Palestinian mother and child in rubble of a bombed-out mosque. credit: Karachi Express Tribune

ET: If you don't stop the conflict, if you don't order a ceasefire, how do you prevent genocide?

GHS: You can't. I think major war crimes and crimes against humanity are being committed. Don't forget that Hamas is still shooting missiles into Israel. Those are also war crimes, targeting civilians.

Israel's position is that this isn't genocide. It is a war. And Israel is bound by the laws of war. According to Israel, the laws of war are ones that they follow.

I question that. When you're dropping 2,000-pound dumb bombs and destroying 70 or 80 percent of the homes in Gaza, I would call that a clear war crime because it is targeting civilians as well as combatants.

Not only that, and think about this: Israel says a lot of the Hamas combatants are in tunnels underneath Gaza.

Now, is the best way to destroy tunnels to drop bombs on buildings on the surface? Clearly not.

The best parallel is the tunnels at Củ Chi in Vietnam, where there's a whole city of tunnels underneath the surface just outside Saigon, outside Ho Chi Minh City. They provided shelters for a lot of the Viet Cong who were attacking that city. I personally crawled through the Củ Chi tunnels in the 1980's after the war.

Those tunnels were a great frustration for the US troops who were trying to destroy the Viet Cong. The tunnels were lined with booby traps and all kinds of other ways that if anybody tried to go into them, they'd likely get blown up. But the Viet Cong used those tunnels right up to the end of the war.

When the US got its B-52 bombers to drop 2,000-pound bombs and carpet bomb that whole area where the Củ Chi tunnels were, it didn't stop the use of the tunnels. In other words, bombing doesn't stop tunnels. There were a few areas where they bombed them so severely that, in fact, some of the tunnels did collapse. But they were used right up to the end of the war.

If you want to really defeat an enemy that's inside tunnels, you have to go into those tunnels. I don't think there's any excuse for this bombing on the surface. I do think these Israeli bombings are war crimes.

ET: What message does the ICJ ruling send to Israel, to Hamas, to the Palestinians, and to the world?

GHS: It's a pretty comprehensive order that the ICJ has given with these provisional measures. They ordered six provisional measures. Israel is instructed to:

  • refrain from acts of genocide under the Genocide Convention;

  • refrain from creating conditions of life deliberately calculated to destroy the Palestinian group in part;

  • prevent and punish the direct and public incitement of genocide, such as dehumanizing language and references to historical events promoting genocide;

  • take immediate and effective measures to ensure the provision of humanitarian assistance to civilians in Gaza, which suggests lifting the blockade, which is seen by the UN as a crime against humanity;

  • preserve evidence of genocide;

  • submit a report to the Court within a month on implementation of these measures.

It's a robust set of provisional measures. However, the ICJ didn't order a ceasefire, possibly recognizing the limitations of its power in that regard.

Palestinian children in front of their bombed-out former apartment building. Credit: Karachi Express Tribune

ET: In your opinion, how might the ICJ ruling influence the ongoing conflict and efforts towards peace?

GHS: The way I interpret the US State Department's response to the ICJ ruling is that it supports adherence to the laws of war and opposes genocide. Since the ruling did not explicitly state that Israel was violating the laws of war or committing genocide, the US supports the ICJ ruling.

In my view, only the United States has the potential to halt this war. The most effective approach would be to inform Mr. Netanyahu that unless he pursues peace with the Palestinians, the U.S. supply of weapons will be discontinued. This, I believe, is the only way to get Netanyahu's attention, given Israel's considerable dependence on American support.

It doesn't imply an immediate surrender or giving up, as Israel is fully capable of producing its own weapons and defending itself. However, without American backing, Israel might be compelled to reconsider and eventually strive for peace.

ET: Will Israel comply with the ICJ ruling?

GHS: I believe it will, because the ICJ ruling doesn't mandate any specific changes to Israel's current behavior. Israel can argue that it's not committing acts of genocide and will comply by preventing incitement and submitting the required report to the ICJ. In essence, Israel can say, "Okay, we'll comply with this."

ET: Do you anticipate business as usual after this ruling? Will the atrocities continue?

GHS: Unfortunately, yes, I'm afraid they will. I don't see Israel altering its behavior. It's crucial to understand that Israel perceives itself under an existential threat, and history supports that concern. Israel has had to fight four wars against Arab neighbors vowing to destroy it. Israel has emerged victorious in each conflict.

The Yom Kippur War was a close call, Israel was saved by support from President Nixon and the US. If not for that assistance, the outcome might have been different.

This specific ruling might not change anything, but it could influence those deeply concerned about Israel's bombing.

The key message for Israelis is that the US stands with them against the existential threat they perceive. The US won't allow Israel to be defeated.

This commitment is vital for Israel, considering the historical trauma of the Holocaust. It's time for Arab countries to acknowledge the Holocaust's reality, declare recognition of Israel, and commit to never attempting its destruction again. While challenging, this acknowledgment is crucial for achieving peace.

ET: The International Court has overwhelmingly decided in favor of South Africa, determining there's a plausible risk of genocide. It becomes imperative for the world community to act now. Will the world act?

GHS: I'm uncertain about the actions other nations could take to actually stop this war. When war crimes occur, the only solution is to halt the war.

It's quite straightforward, isn't it? If there are war crimes, stop the war. That's a lesson I learned during the Vietnam War. There was only one answer: stop it. And, in my opinion, that's precisely what needs to happen here. Unfortunately, it's the one thing not occurring, and we can't compel Israel to do it.

Israel argues, "We're under mortal threat. Hitler tried to wipe us out, and we won't let that happen again. Even if we all perish in this war, we'll fight to the last man." This, I believe, is a plausible position for Israelis to take, given their history.

ET: Is this ruling by ICJ just a paper tiger? It doesn't have the right endorsement from the US.

GHS: I don't consider it a paper tiger because I believe in the rule of law. Written decisions often carry significant weight.

The fact that this case reached the International Court of Justice indicates growing international seriousness about enforcing laws against genocide. The Genocide Conventon is not merely a document from 1948. Efforts are being made to enforce it, as seen with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in the 1990s.

The real effect is evident, such as when Milošević was eventually turned over for trial, sending a message to dictators worldwide about accountability for genocide, crimes against humanity, or war crimes. This, to me, embodies the essence of the rule of law.

ET: Do you expect Netanyahu to be in the same dock as former Yugoslav leader Milošević?

GHS: No, I don't. The International Court of Justice itself is a political body, not a purely neutral court. It has an American president, making it a political as well as a judicial entity.

Netanyahu won't be tried by the ICJ; it deals with state versus state. The International Criminal Court (ICC) is the only place he could be tried, but Israel isn't a party to the ICC statute (Rome Statute), meaning the ICC lacks jurisdiction.

ET: What are your thoughts on the disproportionate bombing from the Israeli forces?

GHS: Of course, it's disproportionate bombing. When half of the victims are children and women who could not possibly be combatants, it's clearly disproportionate. If you are going to attack an enemy that is armed and is going to be combatants, you don't drop dumb bombs and destroy 80% of the houses and families of a civilian population and make the families move all over Gaza. And that's what they're doing. When you destroy so much of Gaza, with over half of the victims being civilians, that is definitely disproportionate.

So, the question I would ask is, why isn't Netanyahu and his military leaders, his Defense Minister, being indicted for war crimes? These are war crimes. So, even if you aren't going to indict them for genocide, they should be indicted for war crimes. And I would also say that Hamas operatives who committed that massacre on October 7th ought to be indicted for genocide, crimes against humanity, and war crimes. That was genocide and also war crimes.

ET: Several Israeli publications and papers have reported that Benjamin Netanyahu wanted Hamas to be in power so that he could dilute the collective Palestinian desire for a two-state solution. What are your thoughts on that?

GHS: I think that's accurate. I believe Netanyahu is strongly opposed to a two-state solution, which, in my opinion, is the only viable resolution for this situation. Consequently, he did, in fact, look the other way when Qatar was financing Hamas. From what I understand, he may have even encouraged it. So, you're correct. I believe that's why he had no objection to allowing Hamas to continue to be financed.

Additionally, it may explain why his intelligence services missed any signs that Hamas was planning to attack Israel on October 7th, despite evidently having received several warnings.

ET: Is this conflict being extended to ensure Netanyahu’s political survival?

GHS: It clearly is. As you know, he's under indictment for bribery. While he is Prime Minister, he is immune from trial. As soon as he is defeated and is no longer Prime Minister, that trial can go forward. So yes, indeed, he is trying to protect his own survival politically. No question about that.

ET: Is the United States a genuine broker of peace?

GHS: In short, no.

ET: If the United States were a peace broker, it wouldn't supply the weapons used against Palestinians. What are your thoughts on that?

GHS: Exactly. The US isn't a broker in this dispute. Other countries, not supplying weapons to either side, could step in. However, being a broker requires trust from both sides. Germany, supporting Israel, is ruled out, as are others clearly favoring Israel or Hamas in the Middle East.

I believe the UN, led by the Secretary-General, is a suitable option. The Legacy Project, involving individuals like Martin Luther King III, Nelson Mandela's daughter, and others, is actively working for peace.

These honest brokers could have an impact, but ultimately, powers like the US must guarantee peace. A UN peacekeeping operation, if accepted by Israel, could also play a role. The US isn't the honest broker here, but there are credible alternatives.

ET: If you could advise President Biden, what would it be?

GHS: I'd advise him to clearly tell Mr. Netanyahu that if the bombing of Gaza doesn't stop, we'll cut off all support. However, that will cost Biden lots of votes. He might even lose the next election because of it.

I'd also suggest lifting the blockade immediately. Civilians, starving, without water, and under bombardment, can't be considered combatants. How can a six-year-old child be a combatant? I'd emphasize that.

If I had full power, I'd bring a Palestinian child orphaned by the bombing to the meeting. That child's presence would have an impact on the President. I think the President would be moved by that. Now, whether they'd even allow it is another question, but I think that they should. President Biden should meet the children of the people who are being killed. President Biden should meet the victims.

Copyright 2024 Karachi Express Tribune

This is an edited version of the verbatim transcription of the interview published by the Express Tribune at:

It does not alter the meaning of any statements in the verbatim transcription of the interview.

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