Shortly before the new year, South Africa moved to take Israel to the United Nations’ (UN) highest court, the International Court of Justice (ICJ), for the atrocities committed against Palestinians in Gaza since Oct. 7. The ICJ recently issued an interim ruling granting some of the emergency measures requested by South Africa that aim to protect Palestinians under attack in Gaza.
In These Times had previously interviewed Omar Shakir, Human Rights Watch’s Israel and Palestine director, about atrocities against Palestinians and South Africa’s case.
Following the ICJ’s recent ruling, In These Times reached back out to Shakir to get his thoughts about what happened.
The initial interview with Shakir was published on January 25, and the piece has since been updated with new comments. Both portions of the interview have been edited for length and clarity.
Riley Roliff: How did the ICJ rule, and what does it mean for Gaza?
Omar Shakir: The ICJ ruling had several important dimensions. The first was that the ICJ dismissed Israel’s challenge to the litigation. Israel had basically asked that the suit be thrown out, but the ICJ upheld that they had jurisdiction over the matter under the Genocide Convention. That part was under-emphasized in some of the reporting. The second thing is that the court found that the allegation South Africa put forward about violations under the Geneva Convention, based on Israel’s conduct in Gaza, were plausible. You need to sort of feed that threshold to issue what are called provisional measures, or binding orders. The court found that [threshold] was met, and it did so with an overwhelming majority of the court’s judges.
On top of that, the court issued provisional measures, which are binding orders, put in place to protect Palestinians who are under threat, based on the plausibility of the claims. The court issued six provisional provisional measures, which are legally binding. The first was that the Israeli government must take steps to prevent genocide and genocidal acts. The second is that the Israeli government must not commit genocidal acts. The third is that the Israeli government facilitate the entry of humanitarian aid and the provision of basic services. The fourth is that the court ruled that there would be steps taken to prevent incitement to genocide. Fifth, the court ordered the preservation of evidence. And finally, the court ordered that the Israeli government report back on its compliance with these measures within a month.
Roliff: What has the response been to the ICJ ruling in Israel and Palestine and throughout the world?
Shakir: We’ve seen a number of statements from states crisscrossing the globe that welcome the measures. This includes Germany, even the European Union, who highlighted that the provisional measures are legally binding orders and called for the Israeli government to adhere and comply with them. Some states made statements that didn’t discuss the binding nature of the ruling or call for Israel’s compliance. But I think you saw a high number of states that welcomed this decision and reaffirmed the importance of compliance with this binding order.
There obviously were people on different sides who wanted maybe additional or other measures taken. The Israeli government challenged the court’s decision to issue provisional measures and to find the allegations plausible and not to continue the case moving forward. So there certainly were a variety of criticisms, but I think the overarching response was to welcome the decision and to call for compliance with the provisional measures.
Roliff: Very soon after the ruling was announced, the United States, followed by several other nations, announced they were cutting funding to the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) due to Israeli allegations that some of the workers participated in the Oct. 7 attack. Can you explain what happened there? Do you see that as being in response to the ICJ ruling?
Shakir: There’s certainly questions around timing. I think that there certainly are some links between what the court found and the impact of this decision. Ultimately, it’s important to underscore the extent to which the decision by states to suspend funding to UNRWA puts Palestinian lives further at risk. The ICJ decision was in part based on very powerful evidence and information regarding the catastrophic humanitarian situation in Gaza, including the fact that much of the population is facing starvation, displacement and a high number of killings.
UNRWA is the primary provider of services. Much of the displaced population is displaced in and around UNRWA shelters. UNRWA provides large amounts of food, medicine, water and other critical supplies that the population relies on to survive. These are serious allegations, and it’s important that the UN has said that it’ll investigate them. But for states to suspend funding while there is such a critical need really threatens to put Palestinian lives further at risk. And I think it is worth noting the contrast between how quickly states suspended funding for UNRWA and their continued failure in many cases — particularly the United States, United Kingdom, Germany and Canada — to suspend arms to Israel despite overwhelming evidence about Israel’s commission of war crimes and other grave abuses.
Roliff: You played a major role in piecing together a historic 2021 HRW report that labeled Israel an apartheid state. How does it feel to see Israel tried at the ICJ?
Shakir: I think it’s a historic moment in many ways, precisely because victims of serious crimes in Israel/Palestine have faced a wall of impunity for decades. For too long, there has been denial, or failure to recognize the gravity of abuses on the ground, and we’re currently witnessing killings and repression at a scale that is unprecedented in the modern history of Israel/Palestine. To have a moment where the world’s highest court can scrutinize Israel’s conduct and treatment of Palestinians in compliance with the Genocide Convention couldn’t be more significant. It’s also really a historic opportunity to unlock a legal process at the world’s highest court to curtail further suffering. South Africa has also asked the world court to issue urgent measures to protect Palestinians in Gaza, who face catastrophic living conditions as a result of atrocities carried out by the Israeli government. The hearings also include the first formal response by Israel before an independent, impartial court to allegations of atrocities against Palestinians.
Given the scale of devastation in Gaza, it’s not a surprise to see Israel being taken to the ICJ. More than [25,000] people have been killed, according to local authorities. And in three months, the vast majority of the population has been displaced and is starving and struggling to survive. The majority of homes have been damaged or destroyed. It’s a scale of killing, destruction and devastation that was simply unfathomable just several months ago. So I think the gravity and severity of abuses warrant this sort of scrutiny. It should have happened earlier. The ICJ had an advisory opinion 20 years ago around the separation barrier. There’s been a matter before the International Criminal Court for a number of years that’s focused on alleged war crimes committed by Israel and Palestinian groups. The ICJ advisory opinion from two decades ago was not binding and is focused on one particular issue. The ICC process has dragged on for years, and it’s not yet advanced to the stage of indictments. The scale and gravity of the abuses warrant this sort of inquiry and provide hope that measures will be taken to protect civilians, curtail further suffering and offer the opportunity for a serious investigation by the world’s highest court.
Roliff: What does this mean for the wider Palestinian struggle against apartheid and occupation, both in Gaza and the West Bank?
Shakir: South Africa, both today in its presentation of its argument and in its written submission, clearly situated the current abuses in the larger context, including the 16-year closure of Gaza, the more than half-century-long occupation of Palestinian territory that is characterized by systematic rights abuse, Israel’s crimes against humanity of apartheid against Palestinians and the denial of the right of return for refugees and their descendants for more than 75 years.
It was important that South Africa situated these events in that context because on October 6, Palestinians were facing crimes against humanity and war crimes. This context is certainly relevant to these proceedings and underscores that we’re here precisely because of decades-long impunity for grave abuses and for Israel’s apartheid against Palestinians. It underscores why there needs to be accountability and action taken to end these grave abuses. Because, ultimately, failing to do so is what led us to the unprecedented atrocities and repression of recent months.
Roliff: How has Israel responded to calls for accountability on the international legal stage both before and after October 7?
Shakir: Israel has long flouted international mechanisms. It has a long history of not allowing entry to UN mechanisms, not participating in actions at the UN or at the ICC and of actively undermining, in many cases, those efforts by doing things like denying visas and entry to investigators and commissions of inquiry. And it has a long history of failing to appear or failing to engage with these processes. Israel somewhat uniquely said it would represent itself in these particular proceedings. It has dismissed the case as lacking merit, but I think the fact of its involvement is important and ultimately is another indicator of the binding nature of these courts’ proceedings. It would obviously be a dark stain on Israel should it fail to comply with any provisional measures taken by the court.
Roliff: What are the main arguments that South Africa is putting forth? How has Israel responded to them?
Shakir: South Africa has argued that Israel violated the Geneva Convention. It says that Israel is killing Palestinians in large numbers, causing them serious bodily and mental harm, imposing measures intended to prevent Palestinian births, inflicting conditions of life calculated to bring about the destruction of Palestinians as a group. They cite many policies, including mass displacement, expulsions, deprivation of access to adequate food, water, medical care, shelter, clothes, hygiene and sanitation and the destruction of the fabric of Palestinian life in Gaza. They obviously situate these events in the context of what they call a “75-year-long apartheid, 56-year-long belligerent occupation of Palestinian territory and a 16-year-long blockade of Gaza.” They also cite numerous statements by senior Israeli officials that they say amount to an intent to commit genocide. The Israeli government has described the application submitted by South Africa as a “blood libel,” and they claim that it lacks a factual and legal basis. And there have been media reports that Israel has instructed diplomats to issue statements against South Africa’s case.
Roliff: Can you talk about the role and influence of the United States in this case?
Shakir: The United States has described South Africa’s application as meritless and counterproductive and without a basis in fact. Blinken [also called the case meritless], and the United States put that out in a statement. They don’t believe that genocide is taking place. At the same time, the United States has underscored that the ICJ is an important venue for the peaceful resolution of disputes.
Roliff: Can you talk more about how the ICJ can enforce provisional measures and what role states have in that process?
Shakir: The first thing to say is that the decisions are legally binding, but the ICJ doesn’t enforce them themselves. Enforcement of any decision of international courts is difficult and often relies on the cooperation of states. ICJ orders automatically are sent to the Security Council, but the Security Council also doesn’t play an active role in enforcement. Ultimately, it’s up to UN member states and countries that are party to the Genocide Convention to use their leverage to bear on Israel, if the court issues a decision on its conduct, to ensure compliance. That could include the use of statements, sanctions, arms embargoes or other measures. UN bodies could also take steps to increase the power of the ICJ’s order or the political cost for failing to comply. That includes the General Assembly. At this point, the big thing is to call on governments to support the proceedings and publicly commit to supporting compliance with the court’s orders.
Roliff: You recently tweeted that the ICJ case provides a historic opportunity to consider measures to prevent atrocities and to ensure respect for international law. Can you expand on that?
Shakir: The main point is that the provisional measures offer a chance for the court to consider steps that would provide protection for Palestinians in Gaza and curtail further suffering. South Africa has asked for a range of measures, from a cessation of hostilities to the preservation of evidence. The court can consider steps like allowing more aid in and calling for an end to unlawful attacks. There’s a variety of measures the court can consider that aim to protect civilians and allow this case to be heard — which will probably take several years — on the merits.
Roliff: If the ICJ is unable to intervene effectively in the atrocities currently being committed by Israel against Palestinians, what do you think that means for international law as a whole?
Shakir: It’ll be a dark stain on Israel’s reputation if it doesn’t comply with an order or if it flouts any provisional measures. In general, many states are questioning the degree to which others are committed to universally applying international humanitarian law. International law more generally is being put in question. Many international institutions are being tested, and how they deal with this matter will have ramifications for the protection of civilians, not just in Israel/Palestine but much more broadly. It’s really incumbent on states and international institutions to rise to the occasion.
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Riley Roliff is an editorial intern at In These Times. Her work has appeared in The Nation, The Buckeye Flame and more.
Omar Shakir is the Israel and Palestine Director at Human Rights Watch.