In the aftermath of Israel's latest legal defeat at the International Court of Justice (ICJ) last week after an application by South Africa, many are asking whether there are not ambiguities in the judgment and whether the enforceability of the order is negatively impacted by that. (See Franny Rabkin’s analysis of the judgment in the Sunday Times. This article may be behind a paywall).

My sense, however, is that any wording is unlikely to deter Israel from flouting binding legal judgments, given its own audacity and the protection it currently enjoys.

It is nevertheless very important to win legal battles in this latest moment of Israeli aggression against Palestinians, which in Gaza has continued for almost eight months and is building up more and more evidence for the main genocide case still to be heard.

Immediately, we are thinking of genocide, which is the most important reason why the public at large throughout the world are outraged by what has been happening in Gaza and, to a significant extent, in the West Bank, and to some extent in East Jerusalem.

We can't keep our eyes off the unfolding genocide. In fact, although Israeli genocide - as a word - has spread into common parlance, what is evoking horror and anger is simply to see the merciless pounding of people - destroying everything that is theirs, including buildings housing priceless art works, archives, educational institutions and hospitals and human beings throughout society: parents, children, grandparents and others. Whole families have been wiped out, or some have not been found beneath the rubble.

Some may not use the word genocide, but it is in our eyes the moment we turn on audiovisual or any contemporary visual media. It is astonishing in this day and age that Israel can be performing genocidal acts on a large scale for this length of time without significant pushback from powerful states in the world (very many of whose citizens are outraged and seek a ceasefire. This is certainly true of the US, UK and Germany, from reported surveys).

These conditions and actions are part of what need consideration and need to be stopped, not only according to those who are analysing the situation as political actors or human rights workers, but also according to the ICJ.

Sidelining of international law

There is however a less directly outrageous question. It affects the whole world and will have implications for a long time - that is the conscious sidelining of international law by Israel and its allies. Israel by direct defiance of ICJ decisions and by perpetrating genocide and other illegal acts that constitute war crimes, crimes against humanity and whose very presence in Gaza, West Bank and East Jerusalem is illegal, made even more so by recent attacks and murders of Palestinians by illegal Israeli settlers.

That has not been possible to explore fully now before the ICJ because it has to be the result of the case proper - on whether or not Israel is found to have committed genocide. The court has already gone far along that route by referring to the allegation of genocide as being “plausible”. If confirmed in the case proper, then allies who have supplied arms and in other ways assisted in the commission of genocide could all be charged with complicity.  

What is clear is that Israel did not simply break the law in passing. Israel and the United States consciously intended to sideline international law. It was a show of force to impress on the Palestinians and the world beyond Gaza their impunity.

Why should that be so important? It is because despite many people having a cynical view of international law, it has basic principles that govern relations between states. The Israeli/US goal is to reduce the possibility of acts of aggression, meaning inter-state aggression or aggression by a state against individuals, leading to legal consequences.

The international legal system after World War Two and encapsulated largely in the Charter of the UN, and developed later in various covenants and other instruments, have at their centre the prohibition of the use of force against other states and peoples, especially those under occupation.

What Israel has been allowed to do, since its inception, has been to act lawlessly without any fear of consequences for its violation of international law. The Security Council may act very speedily on former Yugoslavia or on Myanmar or Sudan. But it is unwilling to take steps against Israel. Not unwilling overall, but constrained by at least the US veto powers in the Security Council.

In fact, Israel has largely been given a free hand in the current war against the Palestinians in Gaza, West Bank and East Jerusalem (conflict has been of a lesser intensity in the latter territory).

Now once there is no counterweight to Israel, no counterweight to the superpower, the global North led by the US under whose auspices Israel acts is free to do what it wishes. It becomes a very much more dangerous world than was the case, paradoxically, during the Cold War, when there was a balance of power, and mutual (nuclear) deterrence practised by the US and the USSR, despite many deviations.

Nevertheless, it was a constraint and we no longer have a situation where the US, the sole superpower, faces a counterweight. The power of the global South, if it may become a counterweight, will take time to develop and has various divisions that need to be addressed.

Despite its heavy price the war gave impetus to awareness of the plight of the Palestinians

One of the significant outcomes of the war against the Palestinians, the war of genocide against all inhabitants of Palestine, has been to surface the plight of the Palestinians, which is merely as some people say one of the latest Nakbas (catastrophes) to occur against the Palestinian people.

But there has never been an internationalisation of the Palestinian struggle on anything like this scale before. 

The anti-apartheid Struggle was internationalised, and that and the campaign against the US war in Vietnam are possibly the only comparable struggles of recent times. It's very significant, for a number of reasons, the way in which people have come to the side of the Palestinians in forming groupings. These have been drawn from politicised organisations, various professions, university students and staff and other formations all over the world - notably a number of Jewish pro-Palestinian groups and people from a range of other faiths organised in a variety of ways demonstrating solidarity with Palestinians and opposition to the Western-supported Israeli genocide.

Encampments in universities, including now in South Africa, have spread throughout the world raising crucial questions concerning democracy and accountability within higher education, especially for investments in Israel or Israeli-related products.

The clampdown against students and academic staff under the guise of combatting anti-semitism has been very aggressive in the US and Germany and some of the discourse of some pro-Israeli academics in South Africa repeats debunked reports of mass rapes, beheadings and other alleged atrocities by Hamas on 7 October 2023.

Where to from here?

Given the continued intransigence of the Israeli leadership, how does one stop what is already a genocide? Today it is reported that there has just been a large-scale Israeli attack on Rafah - showing clearly that ambiguity or no ambiguity in the ICJ’s recent judgment, Israel will continue its bombardment.

The only power that one can count on at this moment is the movements, organisations and other national and international non-governmental organisations that have opposed Israeli genocide. But obviously they do not carry the weight of states.

Francesca Albanese, the distinguished UN Special Rapporteur has said on X (Twitter) that we must stop this: “Be sure: Israel will not stop this madness until WE make it stop. Member states must impose #sanctions, arms embargo and suspend diplo/politicl relations with Israel till it ceases its assault.” [Capitals and abbreviations in original]

I agree, but who is the “we” in capitals that can make it stop?

My sense is that the only “we” that can be counted on are the organisations - national and international - and peoples who have rallied against the genocide, but do not carry the weight of states.

If the power of popular anger can be rallied and intensified, it may help to bring the genocide to an end.

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.