If the West fails what Francesca Albanese calls the Litmus Test of Palestine, several of the essential building blocks of the existing global order will fail with it, writes Alonso Gurmendi [photo credit: Getty Images]
After six long months, the International Criminal Court’s (ICC) Pre-Trial Chamber I issued arrest warrants against Israel’s Benjamin Netanyahu and Yoav Gallant and against Hamas’ Mohammed Deif.
While it would take too long to go into the details of each accusation, some of the Chamber’s conclusions are of particular interest in the context of a changing world.
Global South states like Palestine and South Africa are increasingly acting as effective international law enforcers against Western rule-breakers through the ICC and the International Court of Justice (ICJ).
In fact, there are important connections between the ICC’s analysis of the situation in Palestine and the ICJ’s, that clearly weaken the predominant and longstanding Western discourse of “impunity for me and accountability for you”, especially regarding Israel.
In the long run, the West’s own strategic position in this emerging post-Western world of international law will hinge on its reaction to these kinds of Global South enforcement efforts.
When analysing the charge of starvation as a weapon of war, for instance, the Chamber considered that Netanyahu and Gallant played a role “in impeding humanitarian aid” leading to “the disruption of the ability of humanitarian organisations to provide food and other essential goods”.
This strengthens the claim that Israel is in violation of the International Court of Justice’s (ICJ) Provisional Measures Order of 28 March 2024, which ordered it to ensure “the unhindered provision at scale (…) of urgently needed basic services and humanitarian assistance”.
Similarly, the Chamber considered that on two incidents, Netanyahu and Gallant bore responsibility for the crime of intentionally directing attacks against the civilian population.
This means that they allegedly failed to prevent, repress or prosecute crimes committed by the forces in their command. This goes against statements like those of West Point’s John Spencer, who has repeatedly claimed that “there’s not one bit of evidence” that Israel targets civilians. This is now simply untrue.
Lastly, the Chamber did not find reasonable grounds for the crime against humanity of extermination, arguing that it could not verify that all the elements of the crime were met. But the Chamber was however plainly clear that it did consider that there were reasonable grounds to believe that the denial of food, water, electricity and medical supplies created conditions of life in Gaza “calculated to bring about the destruction of part of a population” – one of the key elements of the crime of extermination.
The ICC arrest warrants are part of a changing world
It seems that for the Chamber, further evidence was required for it to conclude extermination was at play. I fully expect that the ICC Prosecutor will quickly move forward to present this evidence in the near future.
Regardless, that the Court found such “conditions of life” in Gaza is relevant for South Africa’s arguments at the ICJ as well.
As keen readers will have picked up, the “conditions of life” element of the crime of extermination is taken almost verbatim from Article II of the Genocide Convention.
While different standards of proof apply and such comparisons should be taken with a grain of salt, at the end of the day, this makes South Africa’s job easier: a Pre-Trial Chamber of the ICC has essentially confirmed there are reasonable grounds to believe that one of the actus reus of the crime of genocide has been committed in Gaza.
All that remains is for South Africa to show that Israeli officials inflicted these “conditions of living” with the required special intent to destroy Palestinians in Gaza – and South Africa has already submitted a 120-page dossier with evidence of this to the Security Council back in May of this year.
Subscribe Now and Listen to our Podcasts OnWith some exceptions (like the Netherlands and Belgium), the West’s response has veered from the irrational to the uncomfortable. The United States called the warrants “outrageous”, with one Senator threatening to invade The Hague and Lindsay Graham calling for “ending the economy” of any US ally that cooperates with the Court.
Other key Western allies like France, Germany and the UK have issued convoluted statements expressing support for the Court itself, but refusing to be categorical about a potential arrest for Netanyahu or Gallant should they visit their respective territories. A German spokesperson retorted that it would be “hard to imagine” such an arrest.
It is important to frame these warrants within the broader context of a changing world. In the 2010s, the Palestinian leadership decided to engage with international institutions as a mechanism to secure their liberation.
This was part of an even broader process, characterised by the emergence of an envigored Global South, ready to appropriate the language of international law as a tool of decolonisation. It is in this same context that South Africa went to the ICJ. There is little precedent for this in human history.
As power increases, states tend to try and bend the rules, like Russia and China are doing now, not enforce them. The rise of the rule-enforcing Global South, spearheaded by states like Palestine, South Africa, Brazil and others, are changing the world.
As things stand, the choice for the West is simple: stand up for international law and the ICC as the legacy of Nuremberg and a cornerstone of the post-World-War-II global order or embrace the West’s so-called “rules-based international order”, which consistently prioritises Western interest over Global South rights, and destroy the ICC.
With this choice, the West’s own legitimacy as the world’s hegemonic power hangs in the balance. For the first time in a very long time, the Global South will no longer have to just swallow its pride and take the West’s hypocrisy.
If the West fails what Francesca Albanese calls the Litmus Test of Palestine, several of the essential building blocks of the existing global order will fail with it. A post-Western world is rising on the horizon – how it looks like and where the West fits in it depends on what the West does right here, right now.
Alonso Gurmendi is a Fellow in Human Rights & Politics at the London School of Economics & Political Science’s Department of Sociology.
Follow him on X: @Alonso_GD
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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.