Rules have to apply to Israel, too

Over the past month, we’ve watched an astonishing, high-stakes global drama play out in The Hague. A group of countries from the poorer, less powerful bloc some call the global south, led by South Africa, dragged the government of Israel and, by extension, its rich, powerful allies into the top court of the Western rules-based order and accused Israel of prosecuting a brutal war in the Gaza Strip that is “genocidal in character.” The responses to this presentation from the leading nations of that order were quick and blunt.

“Completely unjustified and wrong,” said a statement from Rishi Sunak, Britain’s prime minister.

“Meritless, counterproductive and completely without any basis in fact whatsoever,” said John Kirby, a spokesperson for the US National Security Council.

“The accusation has no basis in fact,” a German government spokesperson said, adding that Germany opposed the “political instrumentalization” of the genocide statute.

But on Friday, that court had its say, issuing a sober and careful provisional ruling that doubled as a rebuke to those dismissals. In granting provisional measures, the court affirmed that some of South Africa’s allegations were plausible and called on Israel to take immediate steps to protect civilians, increase the amount of humanitarian aid and punish officials who engaged in violent and incendiary speech. The court stopped short of calling for a cease-fire, but it granted South Africa’s request for provisional measures to prevent further civilian death. For the most part, the court ruled in favor of the global south.

Accusing the state created in the aftermath of the slaughter that required the coinage of the term genocide is a serious step. Scholars of genocide have raised alarms about statements from Israeli leaders and its conduct in the war while stopping short of calling the killing genocide. Some have welcomed South Africa’s application as a necessary step to preventing genocide.

The court was not asked to rule on whether Israel had in fact committed genocide, a matter that is likely to take years to adjudicate. Whatever the eventual outcome of the case, it sets up an epic battle over the meaning and values of the so-called rules-based order. If these rules don’t apply when powerful countries don’t want them to, are they rules at all?

Reading the document South Africa prepared, I wondered if the leaders of the Western world who dismissed the allegations out of hand had read the same evidence that I had. It is a harrowing chronicle of a charnel house of horrors that shows in detail how Palestinians in Gaza have endured relentless bombing and displacement. I was struck by how thoroughly documented the allegations were and how selective the jurists were in their sources of evidence. The document includes 574 footnotes that cite blue-chip sources, such as United Nations agencies, major nonpartisan humanitarian aid organizations such as Save the Children and mainstream news organisations including The New York Times, the BBC and Reuters.

But despite the International Court of Justice’s lack of enforcement mechanisms, this case matters a great deal because it speaks directly to the blunt challenges facing the US-led global rules-based order that has endured, with some bumps along the way, since the end of World War II. The countries that defined the terms of that grand bargain — the rich, Western nations of the global north — are declining on multiple fronts as China’s global ambitions grow, Russia under Putin menaces Europe and liberal democracy is in retreat in many parts of the globe as governments in strategically vital emerging powers like Turkey and India tilt toward autocracy. All the warning lights are blinking as we risk tumbling headlong into a new era of might-makes-right realpolitik in which anything goes, international laws and norms be damned.

Indeed, what is a rules-based system if the rules apply only selectively and if seeking to apply them to certain countries is viewed as self-evidently prejudiced? To put it more simply, is there no venue in the international system to which stateless Palestinians and their allies and friends can go to seek redress amid the slaughter in Gaza? And if not, what are they to do? For the cause of Palestinian statehood, every alternative to violence has been virtually snuffed out, in part because Israel’s allies have helped to discredit them. The most recent example is the boycott, divestment and sanctions movement that has, in many places, been successfully tarred as antisemitic or even banned altogether.

As far as the rules-based order is concerned, when it comes to crimes like genocide and ethnic cleansing, it simply does not matter who started it. They can no more be justified than Hamas’ attack on Oct. 7. The best way to shore up the rules-based order is to be seen, in word and deed, as committing to the institutions and moral commitments of that order. — The New York Times.