Saturday, May 25, 2024

i've listened to the injunction against israel, as delivered by the president of the icj, and i want to briefly summarize it because this is the kind of thing that goes viral all wrong, and i have the background to make sense of it properly. you've probably been misled on purpose.

the order is relatively standard legal fare and, while perhaps somewhat meddling, largely reasonable. the shortform analysis is:

1. a few months ago, the court told israel not to break international law during it's operation to dismantle hamas, but stopped short of deducing that had already happened or was imminent.
2. some shit happened
3. now, the court thinks that there's grounds to order an injunction for israel to halt activity that might lead to an infraction of international law while it adjudicates the complaint made by south africa
4. israel will then write the icj an essay explaining why it isn't breaking international law and isn't going to, either. the court will then decide whether to lift or extend the injunction through the length of the trial.

this isn't a finding that israel has necessarily done anything wrong, it's an injunction for israel to pause while the question is adjudicated, and which gives israel a number of opportunities to demonstrate it hasn't broken any laws and shouldn't be sanctioned. in terms of legal consequences, it's kind of irrelevant, except to change the court's starting position from a general "israel needs to make sure it doesn't break international law" to a more specific "israel needs to stop what it's doing and explain to us why it hasn't broken international law and isn't going to". it is certainly not a guilty verdict in the genocide case.

if this were a real court with real jurisdiction and israel were a citizen under that jurisdiction, it would be obligated to follow the injunction and write the essay. if the court is fair, and israel is really innocent and reasonable, it should then have the injunction lifted, in a month. i might point out that these accusations are questionable, but that is what this process is about, israel proving it hasn't done anything wrong.

yet, jurisdiction is determined by a monopoly on violence, and that is not in force. israel's greater concern is the court of public opinion.

the court also briefly called for the release of the hostages, but if the icj has some theoretical jurisdiction over israel, it has none over hamas. i think they should have included this call in their order anyways just for show, but the icj has no business ordering hamas to do anything, nor would it listen to them. this is nonetheless extremely important and what israel should base it's response on.

if i were israel, i would ignore the letter of the injunction but follow the spirit of it. i would not halt my operations in rafah, but i would write the icj the essay explaining why i'm not in contravention of the law, as requested. while israel has in past years and operations blatantly ignored international law, they actually seem to be doing this correctly, this time. call it irony or karma or what you will, but i don't think it's fair to assume israel is making the mistakes it used to make, given that all evidence i can find tells me that they actually aren't, and that they are following the law the best they can, in good faith.

i would also release a statement that israel is willing to follow the injunction if it is bilateral, but not if it is unilateral. that is, i would release a statement clarifying that israel will stop the rafah campaign if hamas releases the hostages, so that both parties are following the injunction but, however, that israel cannot follow the injunction unilaterally, and that the order that they do so (in the absence of a recognized state in gaza) is not fair or balanced.

i am not sure exactly what israel could then do to try to alter the rules of the situation. the court has acknowledged that hamas is in contravention of international law, but has no jurisdiction to order them to stop. it is not fair to expect that the rule-abiding party follow the order, while the rule-denying party evades the order, and that is a systemic issue that needs to be addressed, perhaps by modifying the charter so that this kind of imbalance can not happen again. 

israel should not ignore the injunction or claim it's anti-semitic, it should follow the spirit of the injunction (but not it's letter) and respond by trying to reform the institution to undo what is really a loophole that hamas is taking advantage of. after all, israel has a very powerful ally and this is but one example of a flawed international order that is long overdue for systemic reform.