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On Friday afternoon, May 24, the International Court of Justice (ICJ) responded to the request by South Africa, made on May 10, that the court order an immediate ceasefire in Gaza. It did not do that. By a majority of 13 to 2 the bench of international judges ordered Israel to halt its military assault on the city of Rafah. The court’s president, Judge Nawaf Salam, said that the provisional measures ordered by the court in March did not fully address the situation in Gaza now, and conditions had been met for a new emergency order.
As in its previous ruling, the court has not ordered a ceasefire, nor required Israel to stop its assault on Hamas. Nor has it changed its position on the assertion, constantly repeated in the media and elsewhere, that it has concluded there is a “plausible” case that Israel has been committing genocide in Gaza.
About that, the facts are that on April 25 Judge Joan Donoghue, who presided over the hearing in the ICJ of the accusation of genocide brought by South Africa against Israel, said in a BBC television interview that the court “did not decide – and this is something where I’m correcting what’s often said in the media – it did not decide that the claim of genocide was plausible….The shorthand that often appears, that there is a plausible case of genocide, is not what the court decided.”
She explained that what the court did decide was that the Palestinians had a plausible case to be protected from genocide. That is doubtless why the court ordered Israel to take special care to avoid infringing those rights. Now it has gone one step further because, in the presiding judge’s words, of “the situation in Gaza now” and ordered Israel to cease its military operation in Rafah.
Israel has failed to convince the ICJ that the measures it has taken, and is taking, to minimize the effect of its military operations on the civilian population are adequate, nor that ceasing the pursuit of the genocidal and terrorist Hamas and its leaders will result in untold further misery for them.
The court has apparently not taken into account, either, that on May 8 the UN Office for the Coordination of Humanitarian Affairs (OCHA) issued revised and verified figures of women and children killed in Gaza. Creeping up daily to stand on May 7 at approximately 9,500 women and 14,500 children killed since the beginning of the conflict, on May 8 the figures had been slashed by more than 50%.
With no fanfare, the OCHA announced that the verified number of women killed was now 4,959, and the figure for children 7,797. In short the verifiable death toll has been reduced by more than 50% for both. The data now differentiates between the total number of deaths as reported by Hamas (over 34,000) and the number of “identified” fatalities (some 24,000).
Even the revised figures are open to question. Hamas counts everyone aged 18 and under as “children”. There are many full-time combatants aged 17 or 18, and they are almost certainly inflating the children fatalities. Moreover the fatality figures, which include all deaths in hospital, include the elderly, an unknown number of whom will have died from natural causes. In addition the figures include an element categorized as “unregistered” deaths. These figures do not refer to identified bodies held by hospitals, but to unverifiable reports of deaths attributed by Hamas to “reliable media sources.”
In short, the new figures issued by OCHA may themselves one day be subject to a further downward revision.
On May 19 the editor of the UK’s Jewish Chronicle,Jake Wallis Simons, in light of the OCHA’s volte face, wrote: “By rights, this should be the moment that the humanitarian case against Israel’s campaign in Gaza goes into terminal collapse.”
It will not, of course. It was the Hamas-inspired term “collective punishment” that the chief prosecutor of the International Criminal Court (ICC), Karim Khan, used in his application on May 20 to issue international arrest warrants against Israel’s prime minister, Benjamin Netanyahu, and defense minister, Yoav Gallant.
He states as fact that Israel, as part of a systematic plan, indulged in “collective punishment of the civilian population”. This plan, he wrote, involved deliberately starving the Gaza population, willfully causing them great suffering or serious injury, willfully killing and intentionally directing attacks against them, murdering and persecuting them – all of which amounted to war crimes and crimes against humanity. Note the words “deliberately”, “willfully” and “intentionally”. The idea of some secret Israeli plan to attack the people of Gaza sails perilously close to historic antisemitic tropes, and is nothing more than personal biased opinion which, like the charge of genocide, is unprovable because untrue. It is to be hoped that the ICC judges charged with examining Khan’s arrest warrant application perceive his anti-Israel charges for what they are.
Eminent statisticians had started querying the accuracy of Hamas-provided data months ago. Prof. Gregory Rose is an expert in international law at the University of Wollongong. Together with economist Dr Tom Simpson, and biomathematician Prof. Lewis Stone, he has pointed to the fact that between December 1 and December 8, 2023 the recorded number of adult male casualties declined by over 1,300 individuals.
“These mass resurrections of Gazan men,” they have written, “blew out the women and children death ratio from supposedly 68% to 80%.”
Hamas’s figures of deaths in Gaza do not distinguish fighters from civilians. Israeli agencies and the IDF believe that between 14,000 to 15,000 terror operatives have been killed in the fighting. On May 13 prime minister Benjamin Netanyahu said the ratio of Hamas combatants to Gazan civilians killed was about one-to-one. If the new figures of civilian deaths released by OCHA are taken into account, more Hamas fighters than Palestinian civilians may have died.
The OCHA is quoted as saying: “United Nations teams in Gaza are unable to independently verify these figures, given the prevailing situation on the ground and the sheer number of fatalities. The UN will verify these figures to the extent possible when conditions permit.”
Meanwhile Hamas breathes a sigh of relief. The ICJ has saved it from imminent destruction, and its leaders from exile or worse.
The ICJ has also ordered it to return the hostages at once. But then, Hamas is not subject to their jurisdiction.