Saturday, January 13, 2024

Should we support South Africa's case against Israel?

South Africa's genocide case against Israel at the International Court of Justice has proved incredibly polarizing and divisive. It has set family members against each other, and split political parties down the middle. Few countries have come out in unambiguous support of South Africa, and few have sided explicitly and unequivocally with Israel.

Predictably, the USA has sided with Israel (I have looked previously into the USA's unquestioning support of Israel). The UK has also publicly refused to back South Africa, thereby implicitly backing Israel. And Germany has announced it will intervene in the case in support of Israel, much to the disgust of ex-German colony Namibia, which suffered genocide under the German occupation of the country in the mid-20th century.

Canada's government seemed to be stonewalling for as long as possible, but it finally came out yesterday in support of Israel - sort of. The wording of Trudeau's announcement was reasonably careful - "Our wholehearted support of the ICJ and its processes does not mean that we support the premise of the case brought forward by South Africa". Even Foreign Affairs Minster Melanie Jolie's later "clarification" was pretty non-committal, along the lines of "Canada is following the proceedings very closely". But even that was enough to elicit howls of disapproval from various quarters, and it is clear that the government can't claim to speak for the whole country, or even the whole of the government.

South Africa's case has been welcomed and supported by the 57-member Organization of Islamic Countries, as well as Malaysia, Turkey, Jordan, Bolivia, the Maldives, Namibia, Pakistan, Colombia, Brazil and Venezuela. Perhaps not a particularly prepossessing list of characters, but significant enough.

A few other countries have come close to committing themselves in support of South Africa's case, including Belgium, Spain. On the other hand, Austria and Czechia (both staunch allies of Israel historically) have unofficially made their views known. But most European countries and the European Union itself have been conspicuous in their lack of commitment to either side, which is probably wise politically, but disappointing in other respects. The EU's official statement reads, "The European Union is not part of this lawsuit. This is not for us to comment at all", which makes their non-aligned position abundantly clear.

Both the UK and Canada, along with several other countries, explicitly backed the ICJ's genocide case against Myanmar few years ago. As critics are pointing out, it is hard to see how they could denounce Myanmar but not Israel, given the circumstances. Put it down to realpolitik.

It does look like South Africa has a solid case, and many legal experts are saying that they may well win this initial case calling for "provisional measures" against Israel, requiring it to mitigate the enormous civilian harm being wreaked on the Palestinian people. South Africa need only shown that is is "probable" that genocide is under way in order to secure the provisional measures it is asking for. Just wait for the howls of "antisemitism!" when that happens.

Israel's response to the allegations thus far mainly centred around the fact that it is actually Hamas that has genocidal aspirations, and its own right to self-defence, although neither of these effectively negate South Africa's claims of Israel's genocidal aspirations. The ICJ does not have jurisdiction over non-state actors anyway, so it would not be able to try Hamas even if it wanted to. 

Of course, the ICJ has no capacity to enforce any ruling it makes, as we have seen in the past, and the USA can, and probably will, veto any substantive action at the UN Security Council level. The full follow-up case on whether Israel is guilty of genocide could take years, and will require a much higher level of proof. But the South African case has certainly given the world food for thought.


The ICJ did rule (overwhelmingly) that a case against Israeli genocide is justified, backing South Africa's allegations, but stopped short of mandating a ceasefire, merely requiring Israel to take steps to prevent genocide, and to allow in humanitarian aid. Which is kind of circular reasoning: yes, you're probably committing genocide, make sure you don't commit genocide.

And, of course, Israel still maintains that it is not engaged in genocide at all, merely protecting itself. So, it will not be changing anything - as Netanyahu vows, Israel will continue to "protect itself" i.e. continue its indiscriminate bombing (genocide?) as usual. Israel has never set much store by the United Nations. Israel's hawkish Security Minister Itamar Ben-Gvir, whose default setting seems to be outrage and apoplexy, and who has a habit of calling people he doesn't like Nazis, blathered on about the "antisemitic court" which is constantly pursuing "the persecution of the Jewish people".

The ICJ's decisions are considered legally binding on signatory countries, including Israel, but the Court itself has no enforcement mechanism of its own, and instead relies on the UN Security Council to enforce its orders. Algeria, currently one of the rotating members of the Security Council, has announced it is bringing the Court ruling to the Security Council for debate this week. But, given that the Council has permanent members like the USA, it is very unlikely to act, and Israel can ignore the ICJ's ruling with impunity. 

The actual genocide court case against Israel will probably not happen until some years hence. Years too late. This decision of the ICJ only serves to rule that there is a plausible case to be heard. But it does put pressure on Israel's allies, notably the United States, to cease funding and facilitating Israel's actions, which must now be considered "plausibly genocidal".

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