The ICJ gathered for the case against Israel brought by South Africa.
Photo: Remko de Waal/ANP/Redux
On January 26, the International Court of Justice ruled almost unanimously that Israel’s war against Gaza could amount to genocide and ordered the Israelis to take six measures to prevent it. For Americans, the judgment likely produced confusion. The ICJ did not declare that Israel’s assault, which has claimed over 28,000 lives, was genocide full stop. Before the ruling, White House spokesperson John Kirby called the case, which had been brought by South Africa, “meritless, counterproductive, and completely without any basis in fact whatsoever.” Those convinced of Israel’s right to self-defense after Hamas’ October 7 massacre of 1,200 Israelis derided the South African case as theater. The court is affiliated with the United Nations, which, after failing to take action in so many wars in recent decades, has come to be seen as ineffectual. Meanwhile, the onslaught in Gaza continues.
But it would be a mistake to view the ICJ’s actions as insignificant. As the legal scholar David Kaye noted in Foreign Affairs, had the court ordered Israel to cease its military operations altogether, it would have given both Israel and its backers, particularly the U.S., the excuse to do what they usually do: Dismiss the court entirely. Yet by issuing a moderate but condemnatory judgment, the court put the U.S. on notice that it could be considered party to the worst crime imaginable. The ICJ is expected to rule again in the coming years, and if the U.S. fails to rein in its ally, the consequences will be catastrophic not only for the Palestinians but for the whole “rules-based international order” that the U.S. built in the aftermath of World War II. The court, in effect, is giving the U.S. one last chance to save itself.
The ICJ case has come after a long period of American foreign-policy disasters. The invasion of Iraq and the broader “War on Terror” devastated the Middle East as well as undermined U.S. institutions, creating a crisis of faith in government that, among other things, helped bring Donald Trump to power. The war in Gaza risks severing the U.S.’s dwindling claims to moral legitimacy abroad with myriad possible repercussions for life at home. The stain of torture and arrogance and deceit during the War on Terror had profound consequences. Imagine what the stain of genocide could do.
The U.N., the ICJ, and the many other multilateral institutions that compose the bedrock of the modern U.S.-led order come from the same period of lofty ideals: the years after World War II, when Europe and Japan lay in ruins and the victorious Allies had inherited much of the world. The Allies first set about punishing the losers of the war in the name of a new era of what the historian Gary J. Bass cites as “organized international justice.” For the Nazis, that punishment was the Nuremberg trials, which are mostly remembered as a success. Less well known, but in some ways more important for our current moment, was the fate of Japanese generals and politicians in what was called the Tokyo War Crimes Tribunal.
“The Tokyo trial had grand ambitions to establish international principles for a safer postwar world — a revived international law that outlawed aggression and atrocity,” Bass writes in his groundbreaking new book, Judgment at Tokyo. But the trial told only half the story. The dropping of the nuclear bombs on Hiroshima and Nagasaki, as well as the firebombing of dozens of cities, was hardly considered. Even the Americans recognized their good luck. “I supposed if I had lost the war, I would have been tried as a war criminal,” said General Curtis LeMay, who oversaw the bombings of Japan. “Fortunately, we were on the winning side.”
The aftermath of World War II gave the U.S. the moral high ground, a crucial element of what would become that infuriatingly important thing: American exceptionalism. It also allowed Americans to believe that an act of total annihilation was justified to bring peace, a concept so ingrained in our destructive yet moralizing foreign policy that you can see its deathly spirit everywhere — from Vietnam to Iraq to Afghanistan.
The arrival of the Cold War undermined the kind of international cooperation the Allies had envisioned. Since the ICJ’s establishment in 1946, the U.S. has consistently challenged rulings that threatened its own interests. In 1984, for example, when Nicaragua brought a case against the U.S. for supporting the Contras against the Sandinistas, the Reagan administration simply refused to participate in the proceedings. In 2005, George W. Bush contested the ICJ’s jurisdiction; so did Trump in 2018.
The U.S. has shown even more disregard for the International Criminal Court, which was established in 1998 and was inspired by Nuremberg and Tokyo. The ICC, unlike the ICJ, is a criminal tribunal designed to prosecute individuals — for things like genocide, war crimes, and crimes against humanity. Starting in 2002, at the beginning of the War on Terror, the Bush administration withdrew its status as a signatory to the ICC. Trump even issued sanctions and visa bans on ICC officials investigating U.S. activities abroad.
The War on Terror represented the great untethering of the U.S. from the rule of law. President Biden promised to put that horrific chapter behind us by leaving Afghanistan, yet with the war on Gaza, he has plunged the U.S. back into its self-defeating logic. We see how deeply the War on Terror has cemented habits of American foreign policy. Now we have the worst of all worlds: American leaders still believe total annihilation is a precondition for peace, but this time the enemy is “terror” — whether it emanates from Gaza or elsewhere — which many experts agree is almost impossible to destroy. It is a war that is never-ending but always justified.
The rest of the world has long argued that there can be no international justice if the U.S. manages to evade it. Many Americans agree and understandably have focused their ire on Biden. Arab and Muslim Americans, among others, have declared they won’t vote for him in
November because whatever threat Trump poses, it’s difficult to forgive abetting the murder of one’s own family and one’s people. But what has been surprising is that few leftist Democratic lawmakers have made serious trouble for the Biden administration. With a few exceptions — Michigan’s Rashida Tlaib being an obvious one — progressive members of Congress have fallen in line. The Democratic Party did not attempt to prevent what everyone knew would be Israel’s disastrous military response and has not demanded a real reckoning with the U.S.’s unconditional support for Israel’s military. This despite the fact that we’re reading about babies having amputations without anesthesia, seeing evidence of men tortured, and watching the indiscriminate razing of Palestinian homes, schools, and mosques.
If the ICJ ultimately finds that Israel has committed genocide with the help of the U.S., it will likely be dismissed by the American government and held up as evidence of the bias or irrelevance of the U.N. In reality, it may mark the moment when the U.S. could have broken the hold that exceptionalism continues to exert over its posture toward the rest of humanity. The crisis of American foreign policy goes deeper than Gaza; the crisis is in the mentality that allowed the first three cataclysmic months of the Gaza war to occur in the first place. Despite all we know about the Iraq War and the War on Terror, despite the fact that we live with the repercussions every day, foreign policy remains a fuzzy, distant concern. For much of the rest of the world, in contrast, South Africa’s case has been an intervention and an inspiration, a confirmation of their longtime understanding of reality. They are asking Americans to see their foreign policy as non-Americans do: the thing about America that matters the most.