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The International Court of Justice Required Israel to Respond DURING THE SABBATH

Aaron Walker  |  6:30 PM on May 24, 2024
AP Photo/Mark Schiefelbein

Let’s start with the basics. We are talking about the International Court of Justice (ICJ). This is not the same as the ICC, the International Criminal Court, except in the sense that they are both douchey international institutions that make a mockery of the principles they claim to stand for. The ICJ is part of the UN and selected by the general assembly, the same body that regularly puts massive human rights abusers on their Human Rights Council. For instance, currently the Human Right Council includes China, Cuba, Ukraine and Russia, if you weren’t sure if the U.N. was garbage or not.

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And don’t you love that title: The International Court of Justice? The United States Supreme Court doesn’t have to say ‘of justice’ nor does any American court that this author is aware of, because we know it is implied, but these people have to say ‘of justice’ because they know you are going to doubt that part.

And let’s also say something about this author. We have not engaged overly much in the area of international law, and we don’t pretend to know all the precedents and procedures of this Court (of Justice!).

But we do know a simple thing. The U.N. purports to be a government of governments, having the right to tell lesser governments what to do. But John Locke’s Second Treatise of Government—which inspired our Declaration of Independence—states that this can only happen if those governments lose their independence. We think it would be news to most Americans on this Memorial Day weekend that America is no longer an independent country, and we think we could say the same about Israel. If the member nations have not lost their independence, then the U.N. Charter is just a treaty, which America and Israel are not ultimately required to obey—rather they can break them whenever they decide it is no longer in their interest to obey. Or in this case, it works to subvert the human rights of their citizens.

After all, the central philosophy of Locke—and our Declaration of Independence—is that as bad as it is to live without the protection of government, sometimes government can be literally worse than nothing. For instance, Jefferson and Locke hadn’t witnessed the Holocaust when they were writing their respective works, but they would certainly agree that Jews would be better off with no government, than living under Nazi-era Germany—to pick an extreme example. We think one of the most underrated lines in the Declaration of Independence is ‘That to secure these rights, Governments are instituted among Men.’ In other words, after the Declaration of Independence said that we have a natural right to life, liberty and the pursuit of happiness, it says that the purpose of government is to protect those rights. It's not enough to avoid violating them, but the government has a duty to protect them.

Let's provide an ideal example how this principle is supposed to operate in freedom of expression. Of course, the government has a duty not to violate your freedom of expression, but it also has a duty to protect positively protect your freedom of expression. So, if some religious lunatic in a foreign country puts a death sentence by bounty on an American author because of alleged blasphemy in something he or she wrote, our government has a positive duty to go after that lunatic and either get the death sentence lifted or to end the death sentence by ending the lunatic’s life. That is how we vindicate that American’s freedom of religion and freedom of expression. We’re not saying that this is how governments have always behaved—we can think of prominent examples where they have failed to do this—but it is how they are supposed to behave, according to this philosophy.

On October 7, 2023, numerous rights of Israelis were violated. Innocents were murdered, people were kidnapped, women were raped and are likely still being raped as we speak (and as these international douches, these mental Lilliputians try to tie Israel down). Israel not only has the right to stop and punish the violation of their people’s rights, they have a duty to. If they simply let it go or didn’t do their level best to prevent this from happening again, their government would risk becoming illegitimate by Lockean/Jeffersonian standards.

So, since Israel is and remains an independent country, Locke tells us Israel is not actually bound to any judgment of a U.N. court, even if it really wants you to know they are a court ‘of Justice.’ Which is good news because they ruled against Israel:

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And if you are dying to read the garbage order, you can do so here:

But we would like instead to focus on one of the dissents in that case, written by Julia Sebutinde. According to The Institute for African Women in Law, she is a Ugandan who …

… has been a pioneer and trailblazer within the field of law for black women all over the world, specifically within Africa. She is the first African woman to be appointed to the ICJ, and through her efforts, broken many barriers and she definitely won’t be the last. Sebutinde has made numerous contributions to the field of law. By being the first African woman to serve on the ICJ, she has made a change to international law and the symbolic representation of women. She has contributed immensely to international law jurisprudence through the cases she has heard, often with dissenting opinions.

We won’t pretend we ever heard of her before today, but apparently, she contributed one heck of a dissenting opinion, to that garbage ruling:

If you don’t feel like squinting here’s what she said:

Finally, I find it necessary to note my serious concerns regarding the manner in which South Africa’s Request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s Request and engage counsel. Regrettably, as a result of the exceptionally abbreviated time-frame for the hearings, Israel could not be represented by its chosen Counsel, who were unavailable on the dates scheduled by the Court. It is also regrettable that Israel was required to respond to a question posed by a Member of the Court over the Jewish Sabbath. The Court’s decisions in this respect bear upon the procedural equality between the Parties and the good administration of justice by the Court.

So, to pick that apart, she is saying that 1) Israel wasn’t given enough time to respond to this case, 2) they were not able to bring in the lawyer they wanted because of the rush, and 3) the court actually tried to make them work on the sabbath.

Mr. Malin goes on to create a thread of posts, with the second one having a naughty, naughty word we have to censor, so rather than embed that post, we will quote it, with censorship:

That final paragraph is a HOLY S—T moment on the objectivity and fairness of the court.

Notably, Israel was not given time to respond and WAS NOT ABLE TO ENGAGE COUNSEL. Further, it was required to respond during a religious observance.

This is not done to other states.

Seriously, depending on the level of orthodoxy, many Jews will flat out refuse such a request to work on the sabbath come hell or high water.

And really, if you are a court already facing claims of antisemitism, you’d think you’d avoid looking so plainly bigoted as to demand that Jews work on their sabbath. 

Mr. Malin goes on:

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Here’s the passage he highlights:

Once again, South Africa has invited the Court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human rights law, areas where the Court lacks jurisdiction in this case. … 

This directive, which could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza, amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond. This measure also implicitly orders Israel to disregard the safety and security of the over 100 hostages still held by Hamas, a terrorist organization that has refused to release them unconditionally.

We’re honestly less than familiar with the intricacies of how this kangaroo court operates, but we are having trouble understanding how they are not ordering this—except maybe in the sense that they don’t have this power at all, anyway? For instance, toward the beginning of the order she is dissenting from it says:

After hearing the Parties, the Court, by an Order of 26 January 2024, indicated the following

provisional measures:

(1) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 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, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

It goes on along the same lines, but that sure as heck sounds like they are saying Israel can’t kill any Palestinians, even if they are members of Hamass and our only reservation was the use of the word ‘provisional.’ But then you get this in the order toward the end:

57. For these reasons,

THE COURT, … 

Reaffirms the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, which should be immediately and effectively implemented; … 

(2) Indicates the following provisional measures:

The Sta\te of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate: … 

Immediately halt its military offensive, and any other action in the Rafah Governorate, which

may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part;

So that seems to say that that this ‘provisional’ order to Israel is supposed to be implemented and the only reason we can think of why Israel doesn’t have to do it is because the U.N. has no legitimate power over them, anyway. But we readily admit that maybe Sebutinde knows something about this that this author doesn’t.

Again, the text he is highlighting says:

Citing a deterioration in the humanitarian situation in the Gaza Strip and in Rafah in particular, South Africa asserts that there has been a change in the situation since the Court’s March 2024 Order necessitating the indication of additional measures. However, the evidence actually shows a gradual improvement in the humanitarian situation in Gaza since the Court’s Order, reflecting efforts by Israel to comply with the Order.

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An order that is patently ridiculous in the first place. Did we airdrop food into Germany during World War II? Did we send supplies to England during our revolution? Did we think they had a duty to send supplies to us during the same war? Israel is complying with rules of war that aren’t applied to any other country.

The highlighted text:

Although the Rafah crossing is currently closed, Israel has asserted, without contradiction, that efforts are underway to reopen the crossing, including discussions with Egypt and other relevant actors. In addition to the opening of new crossings, there is evidence that Israel has expanded the capacity of the existing Kerem Shalom crossing, extended its opening hours and improved the movement of trucks delivering aid through the crossing.

The highlighted text:

As a result of these increased efforts, thousands of food trucks have entered Gaza; multiple large bakeries have reopened; greater amounts of animal fodder have been able to enter the Strip; water pipelines have been repaired and water pumps supplied with fuel; millions of litres of fuel have been able to enter Gaza; and clothing, hygiene and sanitation supplies have been supplied to Gazan civilians.

The highlighted text:

This improvement in the supply of aid has been recognised by third parties. The UN Senior Humanitarian and Reconstruction Coordinator for Gaza, Ms Sigrid Kaag, has noted the steps taken by Israel to improve aid delivery since 5 April 2024 and has stated that she considers there to have been ‘very constructive co-operation with her mission’ by Israeli authorities, including the Israeli War Cabinet. Third States, including the United States, United Kingdom and Germany have also acknowledged improvements in the delivery of humanitarian assistance.

To be fair, maybe this U.N. court knows that nothing a U.N. official says should be taken at face value.

The highlighted text:

Israel has acted since the Court’s March Order to remedy this situation. This includes efforts to facilitate the entry of medical supplies and the construction of field hospitals and mobile clinics. Israel noted before the Court that eight field hospitals are now operating in Gaza, with another due to open this month and the establishment of further hospitals being considered.

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This time, part of the main post was cut off, but it was merely quoting from the same text he highlighted, so let’s just provide that text, once:

Finally, Israel has throughout the conflict warned Palestinians in Gaza of upcoming operations and has repeatedly requested the evacuation of civilians from areas of active fighting. Such actions are inconsistent with the intent to destroy the group in question. Israel has also acted to make infrastructure available at shelter sites and has facilitated the supply of shelter equipment into Gaza.

Indeed, this author thinks Israel is being foolish in providing such warnings. They were never required in previous wars and we think it is tactically foolish. For instance, we actively worked to deceive everyone about where the invasion of France would occur during World War II, going as far as to create a fake army with inflatable tanks, hoping to fool German spies. We did not warn anyone, civilians or otherwise, that we planned to invade in Normandy, and if we did, Germany might have won World War II.

And if any of you internationalist ninnies are reading this, that would be a bad thing if Germany won. Fascists who murder random Jews are bad. That should be obvious, but international douches seem to get confused on this point when it comes to Hamass.

We’re going to quote a bit more than just the highlighted text this time:

But this does not make Israel’s war against Hamas inherently illegitimate or unlawful and nor does it transform it into an act of genocide. Furthermore, Israel is not the only party responsible for the humanitarian situation in Gaza. Indeed, Israel does not currently govern or exercise full control over the Gaza Strip and a majority of Israeli troops appear to have left the territory in April 2024. In this regard, South Africa’s Request is to some extent paradoxical in that South Africa requests the withdrawal of Israel from Gaza yet also expects Israel to act on the ground to ensure the effective delivery of aid in the territory.

Mr. Malin didn’t highlight that last line, but isn’t it just perfect? Israel has to withdraw, but it still has to take care of the Palestinians, like babies. Gaza wants the rights of being an independent country, but none of the responsibilities.

He means the last sentence in the part he highlighted.

The highlighted text:

Hamas’ conduct has also impeded the effective delivery of aid. Hamas has launched rocket attacks at aid crossings and at the construction site of Gaza’s floating pier. There is also evidence that Hamas has seized aid for its own use.

That would be the idiotic floating pier America made for them, to win votes for Biden in Michigan.

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The highlighted text:

There have also been reports that Egypt has prevented the movement of aid trucks from Egypt towards Kerem Shalom.

The highlighted text:

Furthermore, it erroneously presumes that Israel is somehow not ‘effective[ly] implement[ing]’ the existing provisional measures earlier indicated including those ‘reaffirm[ing]’ existing orders, a finding the Court can only make at the merits stage of the proceedings.

We will admit that is a bit too ‘in the weeds,’ procedurally, for this author to feel 100% comfortable in our interpretation, but she seems to be saying that they haven’t reached the ‘merits stage’ of the case, which usually in law refers to an actual substantive hearing to find facts, typically a trial.

The highlighted text:

As explained above, this measure does not entirely prohibit the Israeli military from operating in Rafah. Instead, it only operates to partially restrict Israel’s offensive in Rafah to the extent it implicates rights under the Genocide Convention. However, as stated above, this directive may be misunderstood as mandating a unilateral ceasefire in Rafah and amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond.

Again, we do not understand how this is not exactly that—an order that Israel just stop the war—but we don’t pretend to know enough about their procedures to be sure she is right or wrong.

The highlighted text:

Furthermore, there are allegations that Hamas has itself engaged in the destruction of documentary evidence.

The whole thing is a bad joke, expecting people who planned mass rapes to obey any rules. That’s not to say Israel would be excused in carrying out war crimes—and they aren’t committing any such war crimes—but this procedural stuff is just silly.

The highlighted text:

South Africa has also not put forward any specific evidence that Israel is engaging in the destruction of evidence that may require the indication of new measures relating to this issue.

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The highlighted text:

Furthermore, the Court has never imposed an obligation upon a sovereign State to admit third-party observers onto its territory. … Thus, it is difficult to reconcile a decision to grant this particular measure with the approach taken by the Court in those other cases.

The highlighted text:

… of yet again one more report from Israel. In view of the number of reports that the Court has already ordered Israel to file, this measure could be seen as another effort by the Court to enforce the implementation of its existing orders, which is a power it does not possess.

We aren’t going to quote that last paragraph again, but we will give you the words that were cut off from the second post:

Double-standards against Israel that is not applied to any other state is antisemitism.

Certainly, it is hard to understand why the Jewish country is being singled out with rules that apply to no other country, unless you consider the possibility of anti-Jewish bias.

And that is it for Malin's thread.

Now, this opinion he is discussing is a dissent, which means by definition this is the opinion of a person who lost the argument. But history is littered with examples of judges or justices writing dissents, only for them to be right—and often vindicated over time. We never heard of Judge Sebutinde before today, but we hope this opinion does come to be seen as the better take on these issues.

Tags: CRIME ISRAELI-PALESTINIAN CONFLICT LAW UNITED NATIONS WAR

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