April 24, 2024

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The Hope Re-presented by South Africa’s Case at the International Court of Justice

Sandeep Chachra and Joseph Mathai

(Sandeep Chachra is Executive Director and Joseph Mathai is Head of Communications, both are with ActionAid Association. The views expressed are individual and do not necessarily reflect those of ActionAid Association.)

It is a remarkable moment in human history when the hopes of so many rest on the shoulders of so few – namely, 17 judges. Fifteen judges of the International Court of Justice (ICJ) and the two ad hoc judges selected by each of the opposing parties today carry the expectations of vast majorities of the world for sanity from international bodies mandated to end war and create international cooperation. They will restore faith for many by ordering a ceasefire in Gaza, even if they do not find Israel guilty of genocide.

It was 78 days after the invasion that the ICJ on 12 January 2024 started its deliberations and will soon pronounce its provisional verdict on the South African request to apply measures “on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip”. Both South Africa and Israel are signatories to the Genocide Convention of 1948. Israel’s response to the South African accusation is an argument for the right to self-defence and instead accusing Hamas of genocide.

The Israeli invasion came after the 7th October 2023 rocket attacks and raids by the Hamas. The Hamas attack killed 1,200 Israeli citizens. But what followed was a disproportionate response by Israel. While Israeli raids and bombings started soon after the attack, the invasion, which began on 27 October 2023, has led to unrelenting horror, where almost every single day has witnessed the mounting loss of human lives – overwhelmingly citizens and too many children. As per estimates available on the website of the UN Office for the Coordination of Humanitarian Affairs, at least 23,968 persons have been killed and 60,582 injured. Estimates are that over 70 per cent are children and women, with thousands still missing under the rubble and presumably dead. Over 85% are displaced within Gaza, and the city itself has been reduced to rubble while the world has mutely watched.

With the UN Security Council prevented from calling for a ceasefire, the hopes for justice-loving people worldwide have remained belied. As the Irish lawyer Blinne Ni Ghralaigh, working on the South African case at the ICJ, noted, “The first genocide in history where its victims are broadcasting their own destruction in real time in the desperate, so far vain hope that the world might do something.”

However, a wave of continued people’s protests shows popular and widespread opposition to the ongoing Israeli aggression and calls for a ceasefire in Gaza. This campaign, most notably in the US, has been led by the Jewish Voices for Peace, whose active presence from the early days has exposed the lie that all support for the Palestinian people comes from anti-Semitic sentiment.  On 13 January 2024, to mark the eve of 100 days of war, people in different cities across the globe gathered in protest and to demand a ceasefire. Independent polls hold that support in the UK for a ceasefire now is up to 70%, and even in the relatively more insular US, it is up to 59%. The UN General Assembly vote in December 2023 had 153 countries voting for a ceasefire, up from 121 countries during a similar poll in October 2023.

Several countries, most of whom are from the Arab world and Africa – essentially belonging to the Global South, have supported South Africa’s request to the International Court of Justice. South Africa is opposed by the US and Germany, with Russia, China and India currently silent. Namibia has rightly condemned Germany for its defence of Israel before the ICJ as a third party, given its past responsibility for the first genocide in the twentieth Century – the massacre of approximately 50,000 to 75,000 Herero and Nama people in the German South West Africa, modern-day Namibia between 1904 and 1907.  Though in 2015 Germany had accepted responsibility for these deaths, they have taken no action in righting those past wrongs.

The South African case before the ICJ appears very strong because, under the very definitions of the Convention on Genocide of the ICJ, the Palestinian people constitute a national group, and Article II of this Convention outlines specific acts that constitute genocide. These include the intent to destroy, in whole or part, a national, ethnical, racial or religious group, by killing members of the group, inflicting conditions for the physical destruction of the group, and forcible transfers. All of which have been carried out in full public view by Israel in Gaza.

We should remember, however, that while verdicts of the ICJ are legally binding and cannot be appealed, the enforcement mechanism still depends on the UN Security Council, which on 8 December 2023 “failed to adopt a resolution that would have demanded an immediate humanitarian ceasefire in Gaza due to a veto cast by the United States…” The ICJ has, in recent years, given orders for provisional measures on the persecution of Rohingyas by Myanmar at the instance of an application by Gambia, Russia-Ukraine conflict and in the joint Canada and Netherlands application against the Syrian Arab Republic to prevent acts of torture. However, its orders are often defied without support from the UN Security Council.

While awaiting the ICJ verdict, we must consider what is at stake here. The foremost is the right to life and the existence of the Palestinian people as an independent nation, and the need to expose and oppose what appears to be an attempt by Israel to inflict “Nakba 2023” on Gaza. Many amongst the Israel establishment have called for an extension of what happened in 1948, which was the original Nakba or catastrophe! And the very real danger is that it will go on towards the creation of a “Greater Israel”! Already, there is pressure on the neighbouring countries, especially Egypt, to accept as refugees the people driven out of Gaza, and in the West Bank, Jewish settlers continue eating into Palestinian territories, driving Palestinians from their homes and lands.

Israel has accomplished this in the face of countless UN Resolutions because of the unremitting support it has received and continues to receive from the West and especially the US.

The Palestinian cause lies at the heart of the question of continued colonial and neo-colonial hegemony and a continued imperial intent by the West to dominate the world. All failure to stem this onslaught will raise further questions on the legitimacy of international institutions and their processes and, therefore, the very relevance of these institutions. It will also heighten regional tensions, increasing the danger of conflict engulfing other countries.

The Palestinian cause lies at the core of our universal values and what the 21st Century must stand for. South Africa’s petition is a bold display of moral courage borne out of its lived experience of colonisation and the horrors of apartheid. It is an act of leadership of the oppressed peoples and nations of the Global South, standing up against continued efforts by the Global North to hegemonise and subjugate the world. In its womb, it carries the pain, plea and hope of countless people around the world, including those from Israel who signed in support to call out genocide and its horrors. It is an increment of hope to end an endless horror where lives and homes are continuously being ground to dust.

To walk past silently will be complicity or meek subjugation to a dreadful future sought to be created by a handful of forces that want to dehumanise us all. Popular protest across the world, the support of countries from the Global South, and especially South Africa’s petition, is the most profound message in this Century for a new world order, decolonised and rooted in love, hope and justice.