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A clarifying moment: Canada and the ICJ ruling on genocide in Gaza

Does this mark a coup de grâce for the ‘rules-based international order’?

Middle EastWar ZonesHuman Rights

The Peace Palace, seat of the International Court of Justice in The Hague, Netherlands. The court is the principal judicial body of the United Nations. Photo by the United Nations/Flickr.

On January 26, the International Court of Justice (ICJ) delivered an interim ruling in response to South Africa’s charge that Israel is committing genocide in Gaza. This ruling required Israel to stop its military from engaging in actions contrary to international law, and to take immediate steps to ensure humanitarian aid reaches Palestinian civilians in Gaza. Within 48 hours Canada and other “Western democracies” cut off funding to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the organization upon which effective provision of aid to Gaza depends.

This is a clarifying moment in modern history—the day the “rules-based international order” that emerged from the ashes of the Second World War was given the coup de grâce, not by its enemies but by its authors. The gloves were off and so were the masks.

The ICJ ruling

Finding that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” (§72), the ICJ imposed six “provisional measures” on Israel with the aim of “preserving … the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts” (§59). It stressed that “there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision” (§74, my emphasis).

These measures required, among other things, that Israel:

  • “take all measures within its power to prevent … (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” (§78)
  • “ensure with immediate effect that its military forces do not commit any of the above-described acts” (§79)
  • “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” (§80) (my emphasis)

Though the court has no means of enforcing its orders, they are binding upon all states who have accepted its jurisdiction, including Israel—and Canada.

The ICJ, which was created in 1946, is the principal judicial organ of the United Nations and the world’s highest court for adjudicating disputes between states. These measures were agreed by majorities of 16 to one or 15 to two by an international panel of judges elected by the UN General Assembly and Security Council, several of whom come from countries whose governments have so far supported Israel in its conflict with Hamas, including the US, Germany, France, and Australia. The charge by Israeli senior ministers that the court is “antisemitic” is risible—though no more than we have come to expect from Israel’s supporters, who have weaponized the term “antisemitism” to tar any and all criticisms of the Israeli state and its actions in Gaza.

Canada’s response to the ICJ ruling

On the same day as the ICJ issued its ruling, Foreign Affairs Minister Mélanie Joly responded on behalf of the Canadian government in a brief statement asserting that: “Canada supports the ICJ’s critical role in the peaceful settlement of disputes and its work in upholding the international rules-based order.” It continued: “Our support for the ICJ does not mean that we accept the premise of the case brought by South Africa … Canada will continue to support Israel’s right to exist and defend itself, in accordance with international law… Canada remains deeply concerned about the scale of the humanitarian crisis in Gaza and the ongoing and serious impacts on Palestinian civilians.”

There are a number of puzzling features of this statement. That Canada supports the ICJ should go without saying, because Canada is subject to the court’s jurisdiction. It is irrelevant to say “our support … does not mean that we accept the premise of the case brought by South Africa,” since if the court’s final decision turns out to be in South Africa’s favour, Canada is bound to enforce it whether it agrees with it or not. The only possible reason for including this sentence at all is to cast doubt on the validity of the interim ICJ verdict, without explicitly challenging it.

While the statement affirms “Israel’s right to exist and defend itself, within international law,” nothing in the ICJ ruling questions this. Joly is dragging us away from the court’s sole concern—which is whether or not Israel is committing genocide in Gaza—to Israel’s preferred framing of its actions as self-defense. In the meantime, the statement blithely overlooks the fact that the ICJ ruling says that it is “plausible” (§54, 66, 74) that Israeli actions have breached international law and gone beyond what is legally permissible by way of self-defense.

Additionally, the statement insists that “Nothing can justify Hamas’ brutal attacks on October 7, including the appalling loss of life, and the heinous acts of violence perpetrated in those attacks, including sexual violence.” Hamas may well have committed heinous war crimes on October 7, though many of the more lurid claims, including of sexual violence, remain unverified. But once again, this was irrelevant to the ICJ ruling since it was Israel, not Hamas, that was on trial. This is typical of the way Western governments and media have repeatedly raised the October 7 attack to justify and/or deflect attention away from Israel’s subsequent actions in Gaza.

Most importantly, Joly’s statement does not even mention the provisional measures mandated by the court, beyond stressing the obligation on both Israel and Hamas to “facilitate the rapid and unimpeded access of essential humanitarian relief for civilians.” Instead, it conditions what the ICJ has mandated Israel to do immediately and unconditionally upon a “sustainable ceasefire,” in which “Hamas must release all hostages, stop using Palestinian civilians as human shields, and lay down its arms.” The importance the ICJ attached to immediate implementation of its provisional measures is underlined by the fact that it required that “Israel must submit a report to the Court on all measures taken to give effect to this Order within one month” (§82).

Despite Canada’s proclaimed support for the ICJ process, then, Joly is in practice disregarding the binding interim ruling that has resulted from this process and the findings on which it rests.

How is this remotely consistent with Canada upholding “the international rules-based order”?

The humanitarian catastrophe in Gaza

The ICJ ruling pulls no punches in its summary of the “catastrophic humanitarian situation in the Gaza Strip” (§72):

The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale … At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating (§70).

The ruling quotes UN data showing that between October 7 and January 26, 26,083 Palestinians were killed by Israeli attacks in Gaza, some 70 percent of them women and children. Thousands more are missing under the rubble. During the same period, 64,487 people were injured and 1.7 million permanently displaced. Over 60 percent of Gaza’s housing units were destroyed or damaged, along with 378 educational facilities, 161 mosques, and 122 ambulances. Only 14 of Gaza’s 36 hospitals were left even partially functioning.

The ICJ was particularly concerned about the imminent risk of famine, given Israel’s continuing blockade in which very little aid was getting though:

An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing catastrophic conditions: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident. (§48)

Since then, the humanitarian situation has gotten worse. As of January 29, at least 26,637 people had been killed and 65,387 wounded in Israeli attacks on Gaza since October 7—hundreds of whom have died since the ICJ ruling was issued. The carnage continues, with no sign of Israel implementing the ICJ orders to stop killing—or of Canada demanding that Israel do so.

A man carries the body of a Palestinian child killed during Israeli shelling of Gaza City, October 17, 2023. Photo courtesy Fars Media Corporation/Wikimedia Commons.

The attack on UNRWA

On the same day as the ICJ delivered its ruling, UNRWA Chief Philippe Lazzarini announced that in response to Israeli allegations that some UNRWA staff had been involved in Hamas’s October 7 attack, “To protect the agency’s ability to deliver humanitarian assistance” he had “taken the decision to immediately terminate the contracts of these staff members and launch an investigation in order to establish the truth without delay.” UN Secretary General António Guterres confirmed that 12 UNRWA employees had been implicated by Israel.

The timing strongly suggests this was a distraction on Israel’s part designed to deflect attention away from the ICJ ruling, but it also had other—and potentially genocidal—consequences.

Alongside the US, the UK, Australia, New Zealand, Japan, Germany, Italy, and several more European countries, Canada responded to Lazzarini’s announcement by immediately suspending its contributions to UNRWA. To their credit, Ireland, Scotland, Spain, Luxembourg, and Norway have refused to join this boycott. Lazzarini was appalled:

It is shocking to see a suspension of funds to the Agency in reaction to allegations against a small group of staff, especially given the immediate action that UNRWA took by terminating their contracts and asking for a transparent independent investigation…
UNRWA is the primary humanitarian agency in Gaza, with over 2 million people depending on it for their sheer survival.   Many are hungry as the clock is ticking towards a looming famine. The Agency runs shelters for over 1 million people and provides food and primary healthcare even at the height of the hostilities…
It would be immensely irresponsible to sanction an Agency and an entire community it serves because of allegations of criminal acts against some individuals, especially at a time of war, displacement and political crises in the region.

Twenty-one international NGOs, including Oxfam and Save the Children, have since written that “we are deeply concerned and outraged that some of the largest donors have united to suspend funding for the United Nations Relief and Works Agency … [which] will impact life-saving assistance for over two million civilians, over half of whom are children, who rely on UNRWA aid in Gaza.

Their joint statement goes on to note that:

152 UNRWA staff have already been killed and 145 UNRWA facilities damaged by bombardment. UNRWA is the largest humanitarian agency in Gaza and their delivery of humanitarian assistance cannot be replaced by other agencies working in Gaza. If the funding suspensions are not reversed we may see a complete collapse of the already restricted humanitarian response in Gaza.

The time of monsters

This barbaric collective punishment of 2.2 million displaced and desperate Palestinian survivors of Israel’s relentless bombardment, because of the (alleged) crimes of 12 out of 13,000 UNRWA employees in Gaza, is a perfect metaphor for the entire surreal obscenity of this war.

According to official Israeli figures, the final death toll from Hamas’s October 7 attack was “695 Israeli civilians, including 36 children, as well as 373 security forces and 71 foreigners, giving a total of 1,139 deaths,” only two of whom were infants (pace the widely reported but now wholly discredited “40 beheaded babies” allegation).

Israeli media have reported that an unknown but substantial number of these deaths were caused by friendly fire, either as a result of the chaotic conditions on the morning of October 7 or as a result of implementation of the Hannibal Protocol which authorizes taking all necessary steps, including firing, to prevent hostages falling into enemy hands. Both first-hand testimony and visual evidence (destroyed buildings, burned-out vehicles) suggest that many of the deaths in Kibbutz Be’eri and the Nova music festival were caused by aerial weaponry or tank shells that Hamas did not possess. Some of the more gruesome images were in turn employed in Israeli propaganda.

The full truth about October 7 will probably never be known. What is beyond any dispute is the monstrous disproportionality of Israel’s response. For every individual killed in Israel on October 7, 23 Palestinians have been killed in Gaza; and for every Israeli civilian killed on October 7, 37 Palestinians have been killed in Gaza. But we live in that time of monsters, when the old world is dying and the new world struggles to be born.

I do not understand how it is in Canada’s interest to be seen as colluding in what may plausibly be genocidal actions by Israel in Gaza. We refused to follow the US into the Vietnam War or the 2003 Iraq War. Why are things so different this time? What is so special about Israel that we are willing to defy the ICJ and undermine the international rules-based order to protect it—contrary to our own position on previous ICJ genocide cases like those of Myanmar and Ukraine?

I do not pretend to have the answers. But I very much fear that they may lie in a deep-seated racism that does implicitly regard Palestinian, Arab, and Muslim lives as less valuable than those of white people. The contrast between the Trudeau government’s responses to the war in Ukraine and Gaza is glaring. But like Israel and the US, Canada is a settler colony, built upon the dispossession of its Indigenous inhabitants. When the chips are down the masks come off.

Derek Sayer is professor emeritus at the University of Alberta and a Fellow of the Royal Society of Canada. His most recent book, Postcards from Absurdistan: Prague at the End of History, won the 2023 Canadian Jewish Literary Award for Scholarship and was a finalist for the Association of American Publishers PROSE Award in European History.


Delivering Community Power CUPW 2022-2023

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