That International Court of Justice Ruling Might Still Have Consequences

Edited by Sam Thielman

IN DECEMBER, a Dutch court ruled against human rights groups seeking to block the government from selling Israel replacement parts for the F-35 fighter jet. The court found that the Dutch government rightfully had significant latitude, as a matter of foreign policy, to sell Israel the parts. 

At the same time, the judges acknowledged that it was likelier than not that the F-35 parts sale would materially contribute to atrocities in Gaza. "To everyone who has seen the images of the armed conflict, reads the news coverage about them and hears the comments of Israeli ministers about the Israeli reaction to the Oct. 7 terrorist attacks, it seems evident that there are violations of humanitarian law," the verdict read. 

That lifted the spirits of the Dutch human-rights activists who filed the case. "We were successful in the sense that the claims by the state that there were no violations in Gaza, or we can't assess that, has been wiped off the table and (the finding) that the F-35 is used in the war is extremely important," one of the lawyers for the plaintiffs said. They're appealing the decision. 

Now that appellate court will hear the case in the context of the International Court of Justice's preliminary ruling on Friday. The interim ICJ ruling found it was "plausible" that Israel is committing acts of genocide, which is quite significant. The Israeli judge on the court, the highly respected Aharon Barak, voted with the court majority that Israel must stop and punish acts of incitement that come from its own government; and that Israel must permit more humanitarian aid into Gaza. Sami al-Arian tweeted, "We won overwhelmingly."

But crucially, the ICJ stopped short of ordering a ceasefire. And a final ruling from the ICJ on whether Israel has violated the Genocide Convention is likely years away, too late to save Palestine, or to arrest a cascading Middle Eastern war. "What Palestinians aspired for was an immediate ceasefire," al-Jazeera quoted Lubna Farhat of the Ramallah City Council. 

South Africa, which brought the case, contended on Friday morning that the court's demands for greater humanitarian aid and a more discriminating war amount to a de facto ceasefire. "How do you provide aid and water without a ceasefire?" asked its minister of international relations, Naledi Pandor. The ICJ ordered Israel to detail next month its compliance with the court's orders to restrain the war. But Israel can surely breathe a sigh of relief. It has a path to contend, however implausibly, that its "Phase 3" operations in southern Gaza amount to the more surgical campaign the ICJ demanded. 

That said, the Dutch case is an example of how the ICJ ruling can create difficulties for Israel in sustaining its military—limited difficulties, to be clear; not enough difficulties to save Gaza today, tomorrow or next week. "The plaintiffs in the case will use the ICJ orders for sure," said my friend Mary Ellen O'Connell, an international law expert at the University of Notre Dame. "They can only help the case, but will not be as decisive as a clear ceasefire order."

There may be other opportunities for creative lawyering using the ICJ's findings, particularly amongst Israel's European Union military partners. The nature of U.S. manufacture and sales of major weapons systems is such that there are often co-production agreements with major foreign allies, which helps explain why the Dutch are one of three main sustainment hubs for the F-35. If I'm reading this 2008 Common Position of the European Union correctly, member states are obligated to "deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law." The interim ICJ ruling could establish that "clear risk" in Israel's case. 

Brad Roth, an international law expert at Wayne State University, noted that if the acts committed by Israel are, in the ICJ's view, plausibly genocidal, then they're even more plausibly "a violation of the laws and customs of war." That's something creative lawyers can leverage—though not something likely to restrain Israel, let alone Israel's American patron. 

"The paradox of international law compliance is the hyperpower on the one hand and the rogue state on the other are the least susceptible," notes Roth, speaking generically, "but the middle powers take it quite seriously."

ASIDE FROM THOSE (POTENTIAL) MATERIAL consequences of the ICJ's decision, what does it mean diplomatically, for the United States? 

That's going to depend on how the Biden administration chooses to acknowledge the interim finding. Even without a ceasefire order, the ICJ found there are plausible reasons to understand Gaza as a genocide unfolding before our eyes. That's not a fringe or baseless position, as the White House said about South Africa's filings before the ICJ. It's a finding by a body whose word is international law. 

Biden has honored that body very recently. When it ordered a Russian ceasefire in Ukraine in March 2022—and how astonishing by contrast that the ICJ stopped short of that for Israel—Biden and his colleagues in the G7 declared, "The Russian leadership is obligated to immediately comply with the order of the International Court of Justice to suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine, without any further delay."

Even without an ICJ-ordered ceasefire, continuing U.S. assistance to Israel's plausibly-genocidal war will speak to the divergence between international law and the U.S.' "Rules-Based International Order", which co-opts international law and replaces it with American prerogative. But Biden, if he chooses to see it that way, has been handed an opportunity to reset U.S. policy.  On Thursday, Biden went over the head of his flailing secretary of state and dispatched CIA Director Bill Burns, an experienced Mideast diplomat, to try to break the prolonged impasse over a ceasefire-for-hostages deal. I'm not predicting this, but the ICJ's interim finding and the presence of Burns at the negotiating table provide an opening to pivot Biden's policy toward producing an end to the conflict. But Biden must make that choice.

DON'T CALL IT A DEPARTURE FROM IRAQ, THE PENTAGON SAYS. But on Thursday, Defense Secretary Lloyd Austin confirmed that the U.S. and Iraq will begin a series of working groups, the U.S.-Iraq Higher Military Commission, that will determine a "transition" to what a senior Defense Department official described to reporters as a "normal bilateral security arrangement." 

Readers of FOREVER WARS will know that these announced meetings follow statements from Iraqi Prime Minister Mohammad Shia al-Sudani, after the U.S. drone strike in Baghdad earlier this month, that these meetings needed to get under way to "determine the arrangements for the end of this [U.S. military] presence." 

But on a conference call Thursday, several senior U.S. officials denied the impact of anything having to do with the fallout from the ongoing militia attacks on U.S. forces in Iraq and Syria, to say nothing of the Gaza war that forms the context for those attacks. Attempts by me and other reporters to raise such issues as relevant factors bearing on the future negotiations were, uniformly, parried by the officials on the call. 

Nor would those officials state that the goal of the Higher Military Commission is to pivot towards a departure. Someone I agreed to refer to only as a senior Defense official twice referred to the commission determining "the shape of the future of the U.S. military presence," and stated a desire to "continue this strong security partnership." 

That sounds familiar from post-2003 U.S.-Iraqi history. When the Bush administration engaged in discussions in 2007-8 on a Status of Forces Agreement, the U.S. considered it a means to extend its presence indefinitely. The Iraqis saw it instead as an opportunity to put an expiration date on that presence. Some 16 years later, the Iraqi foreign ministry said on Thursday that the goal of the Higher Military Coalition is to produce "a specific and clear timeline determining the duration of the presence of the international coalition advisors in Iraq, initiating a gradual and thoughtful reduction of their presence on Iraqi soil." 

The U.S. officials on the call would not answer whether the U.S. is entering these talks with the intention to stay or the intention to go. But while the Iraqi side is more vocal about setting an expectation that it's for the U.S. to go, that expectation is not for a precipitous withdrawal, but a negotiated one that might take years and stages to accomplish. Whether the U.S. will accept that is a policy question. Although the officials wouldn't say it on the call, we can expect the U.S.  will push in the commission for as extended a presence as obtainable. 

Meanwhile, from outside the government, the al-Nasr Coalition that includes Haider al-Abadi, the former Iraqi prime minister whom the U.S. considers its most capable and stalwart partner of anyone who's held that position, this week issued a "Disengagement Initiative" that's about as favorable a set of terms as the U.S. can expect to receive. Not only does it effectively denounce militia attacks on U.S. forces, but it sets a U.S. military departure "after ten years of fighting ISIS, according to a road map agreed upon within a specific period." It's hard to parse what after ten years of fighting ISIS means—ISIS' territorial defeat in Iraq came in 2017, so would the ten years kick in in 2027? Or are we talking about ten more years?—but that's surely the point. 

PREORDER THE WALLER VS. WILDSTORM hardcover, which will hit stores on Tuesday! You can also get a set of all four WVW issues signed by me through Bulletproof Comics! And while you're at it, you can't go wrong with my critically-acclaimed book REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP!

FINALLY: DESSERT. Recently I've been fortunate enough to taste some absolutely elite-tier treats from Knafeh Queens, a proudly Palestinian bakery in Los Angeles. If you've never had knafeh, it's a sweet-and-slightly-savory bite of phyllo dough, syrup and cheese, and it's going to change your relationship to pastries. I've been  lucky enough to consume more than my share of knafeh over the years, and Knafeh Queens really is top-flight. Sadly, they're dealing with shenanigans online from people who object to their proudly displayed Palestinian heritage. 

So, FOREVER WARS readers, do something good for Knafeh Queens that you will surely enjoy. Buy yourself some knafeh, which they ship widely and securely, and even some merch. Post in support of them on Yelp, which will help them grow their business, especially if malefactors try to review-bomb them. I'm not and will never again be on Facebook, but they could probably use some love there too.