This is the first article in a two-part series.
Four months into bombing most of Gaza to rubble, Prime Minister Benjamin Netanyahu ordered the Israel Defence Force (IDF) to plan for the evacuation of Rafah, a southern Gaza town bordering Egypt. “Absolute victory” was within reach, and this required Israel to confront the last few fighting units of the Palestinian resistance group Hamas, purportedly sheltering in Rafah.
Most of the world saw the new phase of Israel’s criminal rampage across Gaza for what it was: ethnic cleansing, or the forcible transfer of people that could potentially go to brutal extremes of extermination. Civilian suffering had never been a reason for Israel’s killing force holding back, but Netanyahu was serving a warning of imminent bloodshed on a scale never seen.
Since Israel began its siege of Gaza in 2007, Rafah has been the transit point for most humanitarian supplies into the isolated and impoverished strip. It was a town of a hundred thousand prior to the current Israeli assault, and has since then become the final sanctuary for close to a million and a half, housed in tent cities with acute vulnerabilities to disease and deprivation. Just days after Netanyahu’s ultimatum, as US audiences remained absorbed in the annual sporting spectacle of the Superbowl, Israel targeted Rafah with some of its most lethal aerial bombardments. Many dozens were killed in a matter of hours, as hospitals, homes and mosques were bombed to rubble. The bombing has since continued with little respite.
Cognitive and moral impairment
All this while, US President Joe Biden seemed otherwise occupied. He skipped the presidential custom of a pre-Superbowl TV interview and doubled down to the task of proving his mental acuity. A special counsel appointed by the US Justice Department had found in a report of a few hundred pages, that Biden’s retention of classified documents from his two terms as vice-president, was perhaps wilful and his disclosure of their contents as a private citizen, illegal. He had, however, cooperated with the special counsel since, consenting to “the search of multiple locations” and sitting for a “voluntary interview” with investigators.
Despite clear intent, Biden’s manner indicated that a jury would have a hard time arriving at a guilty verdict. “We have…considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the investigators wrote.
This verdict of cognitive decline caused serious heartburn in the Biden camp and became a serious talking point in subsequent news cycles. More urgent questions about his moral judgment remained unaddressed, though serious impairment is evident in his conduct since Israel began its barbarities in Gaza.
A recent poll found that half of all Biden voters from the last election, believe that Israel is guilty of genocide in the Gaza strip. And yet, as he called a surprise press conference to fiercely assert that his memory was “just fine”, Biden’s tone was anodyne when the conversation switched to Gaza. “Over the top” was the term of art chosen to describe Israel’s conduct, in what must be the most curious under-statement in a long time. And in pleading good faith in trying to end the suffering, Biden referred to tireless efforts to get the border with Egypt opened for humanitarian deliveries, naming President Abdel Fatah al-Sisi in yet another flub, as the leader of Mexico.
Biden’s moral qualms, such as they were, proved momentary. The official readout of a February 11 conversation with Netanyahu, has Biden underlining the US commitment to “see Hamas defeated and…ensure the long-term security of Israel and its people”. Biden urges Israel to capitalise on the “progress” made in seeking the release of Israelis taken captive by Hamas. Then, in almost ritualistic fashion, he calls for “urgent and specific steps to increase the throughput and consistency of humanitarian assistance to innocent Palestinian civilians”, and pleads that military operations in Rafah should not “proceed without a credible and executable plan for…the safety of…more than one million people sheltering there”.
That Sunday evening, Netanyahu joined the talk-shows on two US networks to declare that the goals outlined by Biden were exactly his, and that Israel was actively pursuing options for the evacuation of all civilians from Gaza, contrary to Hamas’s intent to keep them in harm’s way. And then came the Superbowl massacre.
On January 26, the International Court of Justice delivered its first ruling on a petition calling for immediate measures to prevent the crime of genocide in Gaza. Taking into account the evidence submitted by the Republic of South Africa as petitioner, the ICJ warned that Israel’s actions were perilously close to the criminal standards set down in Article II of the Genocide Convention. While not ordering an immediate ceasefire, the ICJ held that “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 this Convention”. The ICJ also called for a report within a month of its ruling, recording all measures taken by Israel “to give effect” to its orders.
A few days later, a US federal court arrived at similar findings, while failing to deliver the reliefs sought. Before the court was the suit filed by a civil society coalition, calling on the US government to “take all measures within their power to prevent Israel’s commission of genocidal acts against the Palestinian people of Gaza”. By providing financial, military and diplomatic support to Israel, the plaintiffs urged, the US government was “complicit in Israel’s purported commission of genocide”, in violation of its international obligations.
In declining to issue a writ in the matter, the court described the claims advanced as political questions, not amenable to judicial resolution. The plaintiffs’ challenge to the US government’s financial and military aid to Israel intruded into matters “intimately related to foreign policy and national security”, which were “large immune from judicial inquiry and interference”.
It was “plausible” that Israel’s conduct amounted to genocide. Yet the court could do no more than “implore” the US government to “examine the results of their unflagging support of the military siege against the Palestinians in Gaza”. This was because the matter fell within those “rare cases in which the preferred outcome is inaccessible to the court”.
This reticence is puzzling. A few days after it threw up its arms in helplessness, a Dutch court issued an order prohibiting the export of spares for Israel’s fleet of fighter aircraft. The court found reasonable grounds for such action in Israel’s systematic violations of international humanitarian law.
For the US, as a nation that sees itself as a law unto itself, the picture is a little different. The US was for long obdurate in its refusal to sign and ratify the Genocide Convention after it was agreed in 1948. Despite the urgent pleas of a number of top law-makers, the US Senate and the American Bar Association recoiled from the prospect that the US would ever have to answer a case before the ICJ.
Nobody’s exclusive patrimony
In 1985, US President Ronald Reagan scheduled a visit to a wartime cemetery in West Germany, part of the 40-year anniversary observances of the end of World War II, and symbolic of the depth of the reconciliation between the wartime enemies. The cemetery happened to also have the graves of a few score Nazi officers indicted for participation in the Holocaust. Human rights groups were aghast, but Reagan refused to back down, offering a visit to a Holocaust memorial as a placatory gesture. Advocates for the Genocide Convention saw a strategic option there, of couching their arguments in terms of the Holocaust and the intent expressed ever since, that the world would “never again” permit that manner of an outrage (Samantha Power, 2003: 155ff).
Once ratified, the Genocide Convention became part of US domestic law, empowering the judiciary with the power to issue writs seeking its observance. That the court recently avoided this option, shows how the US continues being deeply ambivalent about its commitment to international law. In some quarters, the belief persists that the Genocide Convention is the exclusive preserve of the Jewish people, to redeem humanity from the sins of the Holocaust.
In arguments before the ICJ, Israel’s representative came close to appropriating the Genocide Convention as exclusive patrimony of the Jewish people. It was, he said, a “solemn promise made to the Jewish people, and to all peoples, of ‘never again’”. By pressing its accusation of genocide by the State of Israel, South Africa was inviting “the Court to betray that promise”. It threatened to diminish the application of the term “genocide” and potentially “reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the States seeking to defend against them”.
Mass murder has in an Orwellian switch, come to be seen as self-defence ever since Israel began bombing the isolated and impoverished Gaza strip on October 8. And Israel’s principal backer on the global stage, the US has vowed unquestioning loyalty. Two months into the carnage, Biden threw out the observation that Israel was losing global support on account of its “indiscriminate bombing”, as explicit an accusation of war crimes as any US President has levelled against Israel. Curiously though, this did not seem to deter Biden’s subsequent avowals of support, nor his firm rejection of any possible call for a ceasefire.
In private, Biden is purported to have admonished Netanyahu about the imprudence of his actions, and the Israeli Prime Minister to have responded with a reminder that the US engaged in the carpet bombing of Germany during World War II. That, Biden supposedly retorted, was precisely the reason a number of instruments were since enacted, to ensure that the world did not ever again witness similar horrors.
Sukumar Muralidharan is an independent writer and researcher based in the Delhi region. He has worked in print media, as a journalism instructor and trainer, and press freedom campaigner.
