The case against Israel

But we know too well that our freedom is incomplete without the freedom of the Palestinians. —Nelson Mandela

South Africa has brought a case in the International Court of Justice (ICJ) against Israel under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Both parties have made arguments before the court in this regard, with proceedings broadcast live and watched widely around the world. South Africa, initially, in its very thorough case, seeks the Court to implement provisional measures against Israel. If the court does order these, it will require Israel to stop, with immediate effect, any further military operations in Gaza. In other words, a ceasefire could potentially be ordered by the court. The court is likely to return with its decision on whether injunctions will be ordered in a few weeks, basing its decision on whether a prima facie case has been made by South Africa. The ultimate case to hold Israel accountable for committing and preventing genocide is likely to take many years.

South Africa’s 84-page application’s main allegation is of Israel being in breach of the fundamental requirement of State Parties to the Genocide Convention, to take all reasonable steps in its power to prevent genocide. The application states that “the conduct of Israel … in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention” and that “the acts and omissions by Israel … are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.”

It should be no surprise that South Africa, of all countries, has brought this case to the ICJ. Its past is that defined by colonisation and the struggle for self-determination and freedom. It was because of South Africa I first learnt the term apartheid, which means segregation. It was a system in which a racially white minority ruled over the majority black population, implementing brutal and violent polices to ensure exclusion of black people in all walks of life. The African National Congress, in 1994, led by Nelson Mandela, after a long political struggle, gained freedom, dismantling the apartheid system. South African history echoes that of Palestine today — a people who are colonised, discriminated against and dehumanised by a brutal occupying force. There are also similarities in the way the West has reacted, and continues to do so, against those seeking self-determination. Nelson Mandela, now revered in Western institutions of power, and society, with Mandela statues in many Western cities, was once declared a terrorist (his name only officially removed from America’s list of terrorists as late as 1993) and the ANC the “world’s most notorious terrorist groups”. Similarly, Yasser Arafat’s Fatah, political movement and party, was also on the same US State department list.

So, when South Africa claims “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”, it is done out of a strong recognition of injustice and historical similarities, which results in a strong camaraderie between the two nations.

What we should ask is: why was it not another Arab or Muslim country bringing such a case forward, or officially joining South Africa in its case? Why was this level of foresight and clarity to question Israel, and in turn Israel’s Western backers, on the international stage, under international law, not present in countries we would generally associate with promoting the Palestinian cause? Have Muslim and Arab countries become complacent to the idea that international law is effective, despite being active members of the UN, with the ICJ being the main judicial institution of the UN? After all, any country can bring a claim against another country, even if it is not directly involved in the said conflict or dispute. Or is it that the years of weak, or lack of, democratic rule results in a weak comprehension of seeking institutional accountability?

Muslim and Arab populations are vocal and emotional towards the Palestinian cause, but many governments of these populations do not translate these sentiments into effective policy. In fact, not so long ago we were hearing whispers of Pakistan attempting to normalise relations with Israel, with the nudge, no doubt, by the US. We have always been sold the idea of the Muslim Ummah, but after 7th October — if it was not obvious in the 75 years of Palestinian apartheid — such a utopia of brotherhood, based on religion, does not exist.

South Africa, on the other hand, is using a recognised international institution, meant to uphold international law to highlight and question the blatant violation of the rights of Palestinian people. South Africa’s action has brought back into focus the Genocide Convention: what it means in today’s world and the Convention’s clear obligation on all countries, since the Second World War, to actively prevent genocide. Secondly, by invoking the jurisdiction of the court, South Africa has put pressure on Israel’s main backers, most Western governments, to not only look at their own hypocrisy but to understand the difference in opinion, and growing discontentment, in the Global South. Regardless of the outcome of the case, narratives, which often sound like righteous sermons, such as how Western governments ‘do business’ under a rules based order will have to be re-thought, or at least, preached less blatantly. If the Court implements some form of provisional measures, the decision will put pressure and reputational damage on Israel and the US. It can help the already established global Boycott, Divestment, Sanctions campaign against Israel and it allows an impetus to campaigners to put (further) pressure on their governments on their support for Israel. Finally, South Africa’s case has brought into focus the importance of using international law to hold accountable powerful armies, systems and structures that create havoc, destruction and death with shameless impunity.

A televised court hearing mainstreams to a global audience an understanding of atrocities and destruction in Gaza, and the ICJ’s previous judgements on similar past cases before it. But most importantly, this case should have taught us that courage and seeking truth and accountability is not the domain of only the Global North. Thank you, South Africa.

Published in The Express Tribune, January 26^th, 2024.

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