A Binding Order...

and the late-breaking rush to go on record against genocide in Gaza

©Alessio Mamo,/The Guardian

Back in January 2024, I sat in the press gallery of the Peace Palace in The Hague as the American president of the Court, Joan E. Donoghue, flanked by 16 other justices - typically a highly conservative body - read out the Court's shocking and near unanimous determination that Israel had a genocide case to answer to - that the South African legal team accusing Israel of "the crime of crimes" had presented ample evidence showing "a pattern of conduct and related intention that justifies a plausible claim of genocidal acts.”

18 months ago.

This preliminary ruling obligated all signatory countries to the Genocide Convention including Israel and its biggest arms suppliers, the US and Germany, to take active measures to prevent genocide against the Palestinian people in Gaza.

The Court cited testimony of looming famine, quoting the UN Emergency Relief Coordinator:

"A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner. For children in particular...No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.”

Why has the world spent 18 more months "watching on"?

At the time of the ICJ ruling, 26,751 Gazans had been killed. The official count now stands at 62,700 - rising each day Palestinians queue for food and the IDF and American mercenaries shoot them. 106 yesterday, 21 so far today (it’s 9am).

Yet something has shifted as Israel’s imposed starvation becomes incontrovertible – what appears to be a rush to get on record.

European and Canadian leaders now say they'll recognize a Palestinian state (or, in Britain's case, "threaten" to).

News outlets that have long obscured the evidence of war crimes in Gaza are suddenly putting pictures of starving Palestinian children on their front pages and publishing damning reports. Take Guardian’s “The mathematics of starvation: how Israel caused a famine in Gaza” in which the paper itself admits: “The mathematics of famine are simple in Gaza…Israel knows how much food is needed. It has been calibrating hunger in Gaza for decades.”

(Why has the world, for decades, then, been "watching on"?)

Meanwhile, Israeli genocide scholars and intellectuals are pushing past “immense pain and a broken heart" to publish op-eds for the first time using the "G word," and Israeli human rights groups are issuing new reports, citing "extreme caution" for taking so long to concur with similar findings by colleagues tens of thousands of Palestinian deaths prior. (The New York Times, meanwhile, for every half-step, still can’t help itself from issuing dubious “corrections” for the portion of its subscribers still demanding them.)

For all the “extreme caution” and “heartbreak” cited in these late-breaking testimonials, the situation has so long been clear enough. Perhaps the most powerful section of the South African legal team’s January 2024 presentation to the ICJ was that on “Intent” - genocidal intent, or “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” as defined in Article II of the Genocide Convention - which is a prerequisite component for a legal determination.

At The Hague, intent was argued by South African senior advocate and legal scholar Tembeka Ngcukaitobi - something of a rock star in South African legal circles, known for his powerful courtroom presence. He led off by citing an “extraordinary feature” in this case - that, rather than operating in secret, Israel’s political leaders, military commanders and high officials “have systematically and in explicit terms declared their genocidal intent; and these statements are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.”

Ngcukaitobi proceeded to demonstrate how extreme statements made by Israeli Prime Minister Netanyahu, Defense Minister Gallant and others were not rhetorical outbursts made in pain and anger in the wake of the Oct. 7 Hamas attack, but rather marching orders, intended and taken as such as they passed from political leadership to military leadership to troops on the ground.

Netanyahu’s infamous comment, “remember what Amalek has done to you,” referring to the biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites (“Put to death men and women, children and infants, cattle and sheep, camels and donkeys”) was not said in a press interview, but rather in Netanyahu’s role as Commander in Chief to Israeli combat soldiers preparing for the invasion of Gaza. As Ngcukaitobi points out, that same order was reiterated by Netanyahu in a follow-up letter to the IDF the following week.

“The genocidal invocation to Amalek was anything but idle,” Ngcukaitobi said, as he and fellow members of the legal team systematically illustrated how those orders were bolstered by political leadership - the Deputy Speaker of the Knesset, for example, called for “the erasure of the Gaza Strip from the face of the earth” - and traveled down the chain of command, carried out in a structured campaign.

As Ngcukaitobi shows, Defense Minister Gallant’s characterization of the siege imposed on Gaza - “no electricity, no food, no water, no fuel” because “Israel is “fighting human animals” - travels with lightning clarity. An Israeli Army Coordinator of Government Activities in the Territories (COGAT) repeats the order almost verbatim in a public threat not only to militants, but collectively to both “Hamas and the residents of Gaza”: “[H]uman animals are dealt with accordingly…. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.”

Ngcukaitobi quotes Israel’s Minister of Energy and Infrastructure, Israel Katz, calling for the denial of water and fuel as “what will happen to a people of children killers and slaughterers” - a whole people - and Heritage Minister Amichai Eliyahu saying Israel “must find ways for Gazans that are more painful than death.”

He cites Israeli President Isaac Herzog, who joined those signing bombs actually dropped on Gaza, as making it clear that no distinction was being made between civilians and militants: “[T]his rhetoric about civilians not aware, not involved, is absolutely not true . . . we will fight until we break their backbone.”

The legal team provided painstakingly-culled “snuff” videos made by Israeli soldiers themselves repeating the words of their leaders - words of genocidal intent - as they actually blow up Palestinian homes, universities and other buildings: “We know our motto: there are no uninvolved . . .wipe off the seed of Amalek,” Israeli soldiers sang on camera in one instance.

“These are orders to destroy, and to maim what cannot be destroyed,” Ngcukaitobi concludes. “These statements are not open to neutral interpretations, or after-the-fact rationalizations and reinterpretations by Israel. The statements were made by persons in command of the State. They communicated State policy. It is simple.”

Simple enough, viewing ample evidence of coordinated death and destruction at the time - 18 months ago - for the justices of the International Court to vote to try Israel on these charges and to order signatory nations supposedly dedicated to the rule of law to work to stop it.

I can’t remember a more searing book title than that of Egyptian-Canadian writer Omar El Akkad in his recently-released memoir, which addresses Gaza: One Day, Everyone Will Have Always Been Against This.

Just this week, Egypt’s Abdel Fattah el-Sisi, who has had a front-row seat throughout and could have intervened effectively had he “always been agains this,” moved to distance himself from the starvation at a presser in Cairo, plainly accusing Israel of carrying out a “systematic genocide” in Gaza.

Even Israel’s staunchest lobbyists in Washington are feeling pressure. After having his well-worn defenses dismantled in a livestream debate with Zeteo’s Mehdi Hassan last week, Jeremy Ben-Ami, president of the liberal pro-Israel advocacy and lobby group J Street, made a stunning public announcement that he has now been “persuaded”:

“Until now, I have tried to deflect and defend when challenged to call this genocide,” Ben-Ami wrote in a statement. “I have, however, been persuaded rationally by legal and scholarly arguments that international courts will one day find that Israel has broken the international genocide convention.”

But will this belated rush to testify actually bring relief? Will anyone with the power to do so actually act against Israel's onslaught, as per the ICJ’s binding order?

Better late than never (again)(?)