Trevor Norwitz

Have the ICC and the ICJ Hit Rock Bottom Yet?

This is a challenging time for international law and the established world order. The United Nations’ two most important legal organs have “lost the plot” and seem to be joining the contemptible UN Human Rights Council in competing to see who can best champion those seeking to eliminate the State of Israel. Indeed Hamas’ leadership have expressed great appreciation for all the support they are getting in the Hague.

Two weeks ago, Karim Khan, the Prosecutor of the International Criminal Court (ICC), sought arrest warrants for Israel’s Prime Minister and Minister of Defense.

Notably this came a few days after the United Nations (hardly known for pro-Israel positions) cut almost by half the figures it had been publishing on the proportion of women and children killed in the Gaza war. The correction of that misinformation, which had been fueling vicious global anti-Israel and antisemitic protests for over six months, was lightly covered in the media. But it suggests, if not confirms, that the ratio of civilian casualties to terrorists killed by Israel in its war against Hamas is close to or perhaps even better than one-to-one (despite occasional tragic incidents like the one this week that greatly influence those statistics). Such a ratio is unparalleled in military activity of this nature, and has been achieved in the most difficult circumstances imaginable, where Hamas is fully embedded within and beneath civilian infrastructure and is seeking to maximize civilian casualties in support of its strategy.

Aside from the outrage of the ICC equating lawless terrorists, who started this war on October 7 with an attack of unprecedented barbarity, with a democratically elected government trying to defend its people in accordance with law, if the ICC has jurisdiction over Hamas leaders, then why were arrest warrants not sought for them on October 8 or 10 last year? The evidence of their monstrous criminality was clear then, much of it live-streamed by the terrorists themselves. Imagine how many lives – Israeli and Palestinian –  might have been spared if Karim Khan actually cared about enforcing international criminal law, instead of targeting Israel?

Not to be outdone, on May 24, the International Court of Justice (ICJ) ordered Israel to unilaterally cease its military offensive against Hamas’ fortified Rafah stronghold, where up to 130 Israelis are still being held hostage (235 days and counting), without requiring anything of Hamas in return.

Or did the ICJ actually even order that?

There is a glaring ambiguity at the heart of the ICJ’s May 24 Order, which by its terms calls for Israel to “[i]mmediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” [emphasis added].

As was inevitable, the global press reported this simply as (quoting one typical headline) “UN’s top court orders Israel to halt military operations in Rafah”. Not that the press parsed the order closely, but grammatically speaking this interpretation reads the last clause as merely descriptive and not substantively qualifying the term “military offensive.”

ICJ Vice-President Julia Sebutinde, the conscience on that court, disagrees. In her view (and also that of other ICJ members who wrote their own opinions), the last clause is a substantive qualification and so the order does not call for Israel to stop fighting Hamas in Rafah, just for it to not commit genocide in Rafah (something Israel is not doing and would never do). On this interpretation, the ICJ’s May 24 order essentially adds nothing to its January 26 order. However, as Judge Sebutinde notes, it “could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza, [which] amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond.”

A court, even a political one like the ICJ, has many trained legal minds reviewing its work and does not leave such an obvious ambiguity inadvertently. Either the court did intend to mandate a one-sided ceasefire (with the outrageous implications noted by Judge Sebutinde, among others), or it did not, adding nothing new to its January order but deliberately feeding the odious lie that Israel is potentially committing genocide. A third possibly is that the ICJ majority did intend their order to be to characterized as it has been, in an effort to stop Israel from attacking Hamas’ leaders and remaining battalions in Rafah, but knowing that is both beyond its power and outrageous, added the ambiguity to maintain some sort of “plausible deniability.” That would be intellectually dishonest and cowardly, but it does appear to be the most likely interpretation, as the ambiguity could not have been a mere error.

Israel is obviously not going to stop trying to rescue its citizens held hostage, or to eliminate Hamas’ ability to repeat the atrocities of October 7 over and over, as its leaders have vowed to do. So whatever the ICJ actually intended, the only practical implications of its latest order are, first, to give moral support to Hamas and, second, to fan the flames of antisemitism.

The “genocide” accusation, ubiquitous in protests around the globe since October 7, is a textbook case of Holocaust inversion and one of the most vile and dangerous blood libels ever targeted against the Jewish people. While the fabrication was already in wide use, the ICJ’s January order gave the slander a superficial veneer of validity. In the case of some judges, this may just have been clumsy but in the case of South Africa and its Iranian sponsors it was very intentional. In any event, the mischaracterization and abuse was entirely predictable then, as will be the case with the ICJ’s latest order.

In a BBC interview a few weeks ago, Joan Donoghue, recently retired President of the ICJ, stated emphatically that the January 24 order was widely mischaracterized. The ICJ never ruled, she explained, that there was any plausibility to the claim of Israel was committing genocide, just that the Palestinians had a “plausible right” to be protected from genocide. This was not new news; many of us wrote at the time that it was obvious that this order would be distorted and abused. Donoghue’s admission that the media had utterly mischaracterized the January order was of course itself barely reported. No one noticed. No-one cared. And a few weeks later – even knowing how its original order was being maliciously misquoted to fuel antisemitic vitriol – the ICJ doubled down.

The majority said it was responding to “new information” but there is nothing new about Rafah. It was always obvious that Israel was going to have to take on the Hamas battalions hiding within and under the civilian infrastructure of Rafah, and would keep trying to free its hostages. As Judge Sebutinde pointed out, Israel has been facilitating massive amounts of aid to civilians, has been providing full reports to the court, and the humanitarian situation, undeniably awful, has actually improved. What new facts emerged since the court’s January order to justify this (ambiguous) change?

The most significant facts to emerge since the January order are the improved humanitarian supply situation, the UN acknowledging that their statistics for woman and children casualties in Gaza were massively inflated, and the former ICJ President admitting that the widely-advanced narrative that the ICJ said Israel is plausibly committing genocide is false.

Another thing we learned in recent months is that South Africa’s ruling party may have been bribed to act as the “lawfare” arm of Hamas. There is pending litigation on this and hopefully the facts will come out. South Africa has always acted in bad faith in this matter, from filing briefs replete with outrageous lies to using underhand procedural tricks to prejudice Israel’s legal defense. The court’s acquiescence to this behavior adds to its disgrace (although again Judge Sebutinde called it out).

In short, the ICJ’s May 24 order is not only incompetent but morally reprehensible. The ICJ is an institution that could and should be such a powerful force for good in the world, but it currently has the moral authority of the Spanish Inquisition. And with Karim Khan playing the role of Grand Inquisitor at the ICC, the only thing that has been clarified in the last few weeks is that both the ICC and the ICJ are driven purely by political considerations and as such have little legal or moral legitimacy.  Israel, and other democracies that have to fight against terrorists who do not play by the rules of the civilized world, know that they cannot look to the ICJ or the ICC for international law or justice.

Fortunately there is a voice of conscience on the ICJ. Judge Sebutinde retains a moral compass, intellectual honesty and personal courage. Anyone interested in this case should read her trenchant and courageous dissent. It might have been hoped that the new American judge on the court Sarah Cleveland would have followed her lead but sadly she chose to go with the flow in her first big case.  Hopefully that will change as this case evolves.

At some point, with or despite the attention of the ICJ and ICC, it will be clear beyond the ability of even the most unhinged anti-Semite to argue that anything approaching “genocide” happened or is happening in Gaza in response to the atrocities of October 7. One wonders whether the inquisitors will then apologize for fueling the fires of antisemitic hate or smugly contend that the only reason the Jewish state did not commit genocide is because they stopped them.

About the Author
Trevor Norwitz is a practicing lawyer in New York, who also teaches at Columbia Law School.
Related Topics
Related Posts