Canada: Call on Israel to fully comply with ICJ interim ruling in genocide case

ISRAEL, PALESTINE AND THE WAR ON GAZA – CANADA MUST RESTORE UNRWA FUNDING IMMEDIATELY

UNRWA’s lifesaving aid may end due to funding suspension – Philippe Lazzarinin, UNRWA Commissioner General

The United Nations Secretary-General António Guterres has appealed to the 10 donor countries that have withdrawn funding from the UN Relief and Works Agency for Palestine Refugees (UNRWA) to reconsider, saying the agency and Palestinians in desperate need should not be penalised due to the alleged acts of a dozen staff.

UNRWA took immediate action to terminate contractees accused of participation in the Oct 7 Hamas attacks and requested the UN’s highest investigative body to launch an investigation of the Israeli allegations. As UNRWA head Lazzarini said on 27 Jan 2024:

UNRWA is the primary humanitarian agency in Gaza, with over 2 million people depending on it for their sheer survival.

Ceasefire.ca comments:

As Senior UN officials have said, it is “shocking” and “immensely irresponsible” – and we would add – yet more collective punishment – to cut off vital funding to the primary aid agency operating in Gaza over Israel’s allegations, however serious, against a tiny number of UNRWA’s 13,000 staff in Gaza.

Whither Canada?

In a statement by the Honourable Ahmed Hussen, Minister of International Development, Canada indicated it would “temporarily pause any additional funding to UNRWA” while the investigation is ongoing, also pledging it will not “reduce its support to the people of Gaza.”

However, as UNRWA Chief Lazzarini has pointed out, the effect of the funding suspensions means that UNRWA may not even be able to continue its operations until the end of February.

RI President Peggy Mason comments:

UNRWA’s work is central to the provision of humanitarian aid in Gaza. Canada must show its support for the desperate people of Gaza by immediately reinstating its full funding and urging other donors to do the same.

Failing to reinstate full funding is to participate in Israel’s ongoing grossly illegal collective punishment of innocent Gazan civilians.

We call on the Government of Canada to immediately reinstate full funding to UNRWA and to urge other donors to do the same.

ICJ FINDS PLAUSIBLE GENOCIDE CASE AGAINST ISRAEL AND ORDERS PROVISIONAL MEASURES

Today marks a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people. – Statement by South Africa

In a landmark case for international law, by an overwhelming vote of 15-2 on most issues, and 16-1 on the vital issue of humanitarian aid, the ICJ has found legal conditions for the order of provisional measures were met. In particular, the Court ruled it was “plausible” that Israel has committed acts that violate the Genocide Convention. The Court further found that there is “the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention”.

The Court therefore ordered Israel to comply with the following provisional orders:

  1. Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention, in particular:

(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

  1. The Court is also of the view that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide….
  2. The Court further considers that Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip. [emphasis added]

Paragraph 81 orders Israel to preserve evidence and paragraph 82 orders Israel to submit a report within one month on “all measures it has taken to give effect to this Order”.

ICJ did not order an immediate ceasefire, but…

As we outlined in our 13 January 2024 blog post, given the complex legal issues surrounding Israel’s alleged right of self-defence in this case, and the Court’s inability to extend any ceasefire order to Hamas, a non-state actor, we suggested the Court might exercise caution when it came to provisional measures before it has ruled definitively on the issue of genocide.

Accordingly, we wrote:

It may choose instead to craft provisional measures that stop short of ordering Israel to suspend all operations in Gaza, but that nonetheless, if complied with, would end Israel’s multiple, ongoing violations of international law and actions that could constitute genocide.

Experts argue compliance with Court order may well require an end to hostilities

I believe that in exercising the [ICJ] order there would have to be a ceasefire, without it the order doesn’t actually work. – South African Foreign Minister Naledi Pandor

Yousuf Syed Khan, a Senior Lawyer with Global Rights Compliance, also argues that, although there was no preliminary measure for a ceasefire, a lull in hostilities between the belligerents may in fact be practically required to comply with the measures ordered regarding humanitarian assistance.

He writes:

In practice, the sustained and unhindered flow of humanitarian relief cannot exist while hostilities continue to rage on.

Fionnuala Ní Aoláin, Executive Editor at Just Security, argues that the presence or absence of the word “ceasefire” in the text of the judgement is the “wrong test” for judging the ruling:

Instead, the powerful and all-encompassing phrase “take all measures within [its] power” leads to the conclusion that the State of Israel must in fact fundamentally reassess and revisit its conduct of hostilities in Gaza to ensure it is not found in breach of the Genocide Convention when the Court assesses the case on the merits.

Israeli response to the ICJ ruling

Israel’s commitment to international law is unwavering. – Benjamin Netanyahu

Israeli Prime Minister Benjamin Netanyahu began his response to the ICJ ruling with the above statement. Shortly before, his National Security Minister Itamar Ben-Gvir posted on twitter:

Hague Schmag

This is a Yiddish-esque ridicule of the Court’s name. The phrase is meant to recall “Um Shmum”. Um is UN in Hebrew. Then-Israeli Defence Minister Ben-Gurion coined that phrase in 1955 when proposing to take the Gaza Strip from Egypt.

Netanyahu did not indicate in his statement whether the ruling would lead to any changes in Israel’s military campaign, but he expressed satisfaction that the court had not ordered a ceasefire.

Legal experts weigh in on significance of ICJ ruling

The respected legal blog Just Security reported the views of several leading experts on the ICJ’s interim ruling.

Janina Dill, Dame Louise Richardson Chair in Global Security at the Blavatnik School of Government, Fellow at Trinity College and Co-Director of the Oxford Institute for Ethics, Law, and Armed Conflict:

Genocide should be an implausible charge.

Dill recalls that the Court has told the world “it is not implausible” that Israel’s military operations in Gaza and its months-long siege of the strip violate the Convention. Neither did the Court find it implausible that public statements by senior Israeli politicians amount to incitement to genocide.

She then writes:

This is a significant rebuke of a democratic country that sometimes claims to have the most moral army in the world.

It is also a rebuke of world leaders who preempted legal deliberations by declaring the case meritless or baseless or who argue that Israel’s compliance with international law can be assumed because it is a democracy.

All parties to the Genocide Convention have duties of prevention and non-complicity

Underscoring that all parties to the Genocide Convention have “duties of prevention,” Dill warns:

Governments that supply Israel with arms have been put on notice that they are assisting what may plausibly be a very serious internationally wrongful act.

She continues:

The moral imperative to defer to the authority of the Court, the potential legal jeopardy of supporting acts that plausibly violate the Genocide Convention, and the strategic implications of being seen to do so should be sufficient for the Biden administration to make a radical course change.

At minimum, the implementation of all provisional measures should be a condition before the United States, or any country, considers further military or diplomatic support of Israel.

Israel must let in much more aid than it does now

Regarding the order that Israel take “immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance,” Dill concludes:

Complying with this demand requires that Israel takes concrete steps to let in much more aid than it does now.

Voices of restraint must speak up, in real time, in Israel

On the issue of evidence of intent to commit genocide, Dill reminds us that the intent of a state is an “aggregation of many peoples’ state of mind”. She argues that the many voices in Israel who do not agree with the current course of action

have a fresh, strong argument for why exercising restraint and lifting the siege are not only morally right and legally necessary, but eminently in Israel’s interest.

Rebecca Hamilton, Professor of Law at American University Washington College of Law:

To have an international court speak, in real time, to the need to prevent genocide in the midst of an ongoing conflict, is a recent and heartening development in the atrocity prevention landscape.

Judge Barak votes in favour of two provisional measures

Although he was “convinced there is no plausibility of genocide,” the Israel-appointed ad hoc Judge Barak voted in favour of measures three and four, writing, in part:

With regard to the third measure, which concerns acts of public incitement, I have voted in favour in the hope that the measure will help to decrease tensions and discourage damaging rhetoric. I have noted the concerning statements by some authorities, which I am confident will be dealt with by the Israeli institutions.

With regard to the fourth measure, I voted in favour, guided by my deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable.

On the significance of the Israeli-nominated Judge Barak’s affirmative votes for the provisional measures of preventing and punishing incitement to commit genocide and taking effective measures to ensure the provision of humanitarian assistance, Hamilton writes:

Barak should be commended for these principled votes, which will make it significantly harder for the Israeli government to delegitimize the Court’s orders.

Impact of the Court’s ruling on Israeli conduct going forward

On the issue of “what matters most at the end of the day” — namely, will the Court’s order make any difference on the ground — Hamilton argues that the unwillingness of the Israeli government to publicly acknowledge the relevance of the ICJ’s order does not mean that the order will not impact Israeli policy going forward.

Everything that will happen for the duration of the proceedings, over the next two or three years at least, will continue to build evidence… – Professor Itamar Mann

For an incisive assessment of the potential impact of the ruling on Israel’s conduct, going forward, Hamilton cites a post by Israeli law professor Itamar Mann. In that article, Mann underscores how evidence of Israel’s intent will be decided not just on actions to date but on Israel’s entire conduct until the merits of the case are decided.

Referencing Israel’s denial of any intent to “destroy” the Gazans, Mann writes:

However, if Gaza’s 1.9 million displaced people will not be able to return to their homes, it will become harder and harder to maintain an argument about defensive intent. Indeterminate displacement looks like something else (one such thing is the Nakba).

Israel’s legal defense … will thus gradually deteriorate.

He continues:

Already now, South Africa can argue that Israel’s determined avoidance of discussing political solutions for “the day after” reflects the intention that there will be no such day for Gazans.

If I were a legal advisor to the Israeli government, I would urgently convey a message: The process in The Hague transforms the need to show a plan for Palestinian life in Gaza after the war. No longer is it simply an advisable policy. Showing such a plan has become a legal duty.

Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings College of Law; former Counselor on International Law at the US Department of State:

There was something surreal about watching [ICJ President] Donoghue read from the text of the Genocide Convention on the eve of International Holocaust Remembrance Day….

If the Jewish international lawyers who survived World War II (including Lemkin, Hersch Lauterpacht, and Louis Sohn) taught us anything, it is that all human lives are worthy of dignity and protection.

Fionnuala Ní Aoláin, Regents Professor Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; former UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism

Cited earlier on the implications of the ruling for an end to hostilities, Aoláin also comments here on the “overarching narrative” that comes from the Court in its decision on provisional measures, saying in part:

The Court’s emphasis on the totality of the provisions of the Genocide Convention, not just genocide but conspiracy to commit genocide; directing and public incitement to commit genocide; attempting to commit genocide; and complicity in genocide brings our attention to the full panoply of potential liability for Israel to the fore.

Oona Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School:

This is a blockbuster decision, giving South Africa almost everything it could have reasonably hoped for…. The question is what happens next.

Does Israel want to join international pariahs Myanmar and Russia?

Professor Hathaway argues that, while Myanmar and Russia have ignored the ICJ provisional orders, both have become international pariahs and have paid the price for flouting international law. She continues:

If Israel does the same, it will pave the way to its international isolation.

Will the US make ICJ compliance a condition of its support?

Hearkening back to Professor Dill’s argument about the need for the Biden administration to make a “radical course change”, or at a minimum, to condition any further military or diplomatic support of Israel on its implementation of all provisional measures, Hathaway too highlights the  “hard decision” that the United States has to make:

Does it continue to supply weapons and other material support to Israel… and in the process likely violate its own obligations under the Genocide Convention? Or does it insist that Israel follow the decision of the Court as a condition of its continued support?

US response to ICJ ruling

I think the court’s ruling is consistent with many of our positions, and much of the approach that we’ve taken with Israel. – National Security Spokesperson John Kirby

While The Hill focuses on a statement by White House national security spokesperson John Kirby that the ICJ ruling was consistent with American calls on Israel to do more to protect civilians, Middle East Eye had an entirely different assessment. Their article, entitled US doubles down on dismissing genocide claim, despite ICJ ruling, begins:

The White House has brushed aside the ICJ ruling that Israel must prevent genocidal acts against Gaza and will continue to double down on its unconditional support for Israel’s war in Gaza, Friday’s White House press briefing revealed.

For a particularly depressing assessment of the potential for President Biden to change course, see Will Biden ever stand up to Benjamin Netanyahu? Don’t bet on it (Chris McGreal, guardian.com, 25 January 2024).

Whither Canada?

Canada opted to say as little as possible Friday about an International Court of Justice ruling that ordered Israel to prevent a genocide of Palestinians in the Gaza Strip. – CTV News

The statement from Foreign Minister Joly on the ruling of the ICJ ordering Israel to take a range of actions to prevent genocide in Gaza acknowledges that the provisional order has been made and reiterates Canada’s support for the role of the ICJ, while maintaining its neutrality on the merits of the genocide case. It also repeats Canada’s desire for increased humanitarian assistance and the release of all hostages held by Hamas.

After hours of silence from the federal government, Foreign Affairs Minister Melanie Joly eventually released a statement that did not directly respond to the ruling. – CTV News

As the above quotation indicates, there is no reference at all to the content of the Court’s provisional order.  Neither is there reference to Canada’s duty under the Convention to prevent genocide, nor to its intention to fully comply with the ruling. There is no direct call on Israel to comply with the provisional order of the ICJ, not even with respect to the urgent provision of humanitarian assistance, for which even the Israeli-appointed ad hoc judge on the ICJ voted.

Ceasefire.ca comments:

Despite all these disturbing ommissions, let us be clear. Canada’s stated support for Israel’s right to exist and defend itself “in accordance with international law” includes compliance with the ICJ provisional order.

NDP calls for full compliance with ICJ ruling

RI President Peggy Mason comments:

Everything Israel does from now on is under the legal microscope. True friends of Israel should be forthrightly urging it to fully comply with the ICJ ruling, not implicitly shielding it through deafening silence.

We call on the Prime Minister of Canada to immediately issue a statement confirming Canada’s intention, in light of the ICJ provisional order, to meet all its obligations under the Genocide Convention, to call on all parties including Israel to do likewise, and to draw particular attention to the urgency of Israeli compliance with the order to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance” to Palestinians in the Gaza Strip.

We reiterate our call for Canada to suspend all military transfers to Israel, to avoid any possibility of complicity in genocide.

We call on Canada to redouble diplomatic efforts for an immediate durable humanitarian ceasefire.

NOW IS THE TIME FOR EVEN MORE DIRECT PRESSURE ON THE GOVERNMENT OF CANADA FROM CANADIAN CITIZENS.

Click HERE to sign the parliamentary e-petition calling for an end to Canadian arms transfers to Israel.

Prime Minister Justin Trudeau: < justin.trudeau@parl.gc.ca  >

Foreign Minister Mélanie Joly: < melanie.joly@parl.gc.ca >

Leader of the NDP Jagmeet Singh: < Jagmeet.Singh@parl.gc.ca >

Leader of the Conservative Party Pierre Poilievre: < pierre.poilievre@parl.gc.ca >

Leader of the Bloc Quebecois Yves-François Blanchet: < Yves-Francois.Blanchet@parl.gc.ca>

Green Party Critic Elizabeth May: < Elizabeth.May@parl.gc.ca >

And find your local Member of Parliament HERE.

UKRAINE UPDATE

For another sobering analysis of the consequences of where a “diplomacy-free, militarised foreign policy” in Washington and Moscow has brought us, see The propaganda that damned Ukraine (Chas Freeman Jr., unherd.com, 4 January 2024). Freeman argues that Moscow, Kyiv and Washington are caught in a “fog of miscalculation”, the consequences of which have been “dire” for “the West” and “catastrophic” for Ukraine.

This year, it is time to prioritise saving as much as possible of Ukraine, for whom this war has become existential. Ukraine needs diplomatic backing to craft a peace with Russia if its military sacrifices are not to have been in vain….

The key to preserving what’s left is to empower and back Kyiv to end the war on the best terms it can obtain, to facilitate the return of its refugees, and to use the EU accession process to advance liberal reforms and institute clean government in a neutral Ukraine….

FEDERAL COURT FINDS INVOCATION OF EMERGENCIES ACT WAS ILLEGAL

I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC. – Federal Court Justice Mosley

On 23 January 2024 Federal Court Justice Richard Mosley ruled that there was “no national emergency justifying the invocation of the Emergencies Act”.

We will be appealing – Deputy PM Freeland

The federal government has said it will appeal the case to the Federal Court of Appeal, although in all likelihood it will ultimately be decided by the Supreme Court of Canada.

For an excellent — and somewhat critical — analysis of the ruling and the importance of judicial review, see Wesley Wark’s 24 January 2024 National Security and Intelligence Newsletter.

Photo credit:  Wikimedia Commons (International Court of Justice) (Gaza destruction)

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