Last week, South Africa filed a case against Israel at the UN’s International Court of Justice (ICJ). Israel is accused of genocide against Palestinians in Gaza because its bombardments ‘are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group’.
Israel has rejected South Africa’s charges as ‘baseless’, calling them ‘blood libel’.
To weigh the significance of South Africa’s move, we need to see the political and moral implications of the charges as well as the legal ones. They affect not only Israel but also the US and the European Union.
Three points need to be made about the legal issues.
First, there is the status of the UN court. Unlike the International Criminal Court, which judges individuals charged with war crimes, the UN court is a civil court that adjudicates disputes between UN members.
So it is Israel as a State that will be in the dock if the case is taken up. It will not directly be the Israeli prime minister, Benjamin Netanyahu, or another of his ministers.
Furthermore, the ICJ’s judgments are authoritative but not enforceable. A State that refuses to comply may, in principle, face sanctions imposed by the UN Security Council. But Israel won’t have anything to fear since the US, a leading member of the council, is Israel’s strongest ally.
The US is supplying many of the arms being used to bombard Gaza. It is hardly possible for the US to accept an ICJ judgment that finds Israel guilty of war crimes without, at the same time, acknowledging that the US is an accomplice.
Second, South Africa has elected to use a weaker court against Israel than it might have done. Had it asked for Netanyahu to be indicted by an international criminal tribunal – as was done with the former Serbian president, Slobodan Milosevic, or Saif al-Islam al-Gaddafi – the stakes would have been a lot higher.
Such a case would risk seeing US and EU leaders in the dock for supplying arms or international political cover. But, precisely, because such a scenario is ‘unthinkable’, the case is more onerous, in practice, for a tribunal to accept.
Third, the charge of genocide needs to meet the technical standard demanded by law, which is not wholly intuitive.
It is possible to be guilty of genocidal intent without killing anyone. But it is also possible to kill, as Israel has done, some 22,000 people in three months – two-thirds of them women and children – and not be guilty of genocide.
South Africa can point to the more than 800 scholars of international law, conflict studies and Holocaust and genocide studies, who declared in a statement on October 15:
“We are compelled to sound the alarm about the possibility of the crime of genocide being perpetrated by Israeli forces against Palestinians in the Gaza Strip. We do not do so lightly, recognising the weight of this crime, but the gravity of the current situation demands it.”
The signatories include children of Holocaust survivors and scholars whose work has shaped the field of Holocaust and genocide studies, such as Omer Bartov and Marion Kaplan.
South Africa’s genocide case refers to Netanyahu’s invocation, in an address to the Israeli nation, of the Biblical Amalek: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.”
South Africa can also point to various statements made by high-ranking officials of the Israeli State. Israeli President Isaac Herzog declared there are no innocents in Gaza. And Israeli defence minister Yoav Gallant has said “Gaza will not return to what it was before. We will eliminate everything.”
The ramifications of the legal battle extend beyond the law- Ranier Fsadni
But Israel’s legal defence team is already arguing that the military campaign against Gaza cannot be held to the usual standards of war because of the unusual terrain and an enemy embedded among the civilian population.
It can also point out that Israel cannot be intent on genocide if it is simultaneously trying to find countries that will take the two million Palestinians of Gaza.
That argument, though, is legally tricky. It might get Israel cleared of genocide only by providing evidence of another crime, ethnic cleansing.
The latter is a more credible charge, given the available evidence of intent. To give only one example, the far-right finance minister, Bezalel Smotrich, has said: “If we act strategically they [the Palestinians] will emigrate and we will live there. We won’t let two million stay…”
But, in an international civil court with no direct power to enforce its judgments, what counts, politically and morally, is not the precise indictment but the opportunity to discuss the evidence in detail before the world’s media: the total or partial destruction of 296 schools, 23 hospitals, 162 mosques, four churches, some 1,500 businesses and 70 per cent of all homes.
The ramifications of the legal battle extend beyond the law. If the ICJ does not take up the case, Israel could be emboldened. Its reputation for impunity among the populations of the Middle East would be strengthened.
Whatever any international tribunal says, every Arab has seen the Palestinian father who tried to put a bar of chocolate into his dead child’s hand (to enjoy in Paradise) and the grandfather trying to put socks on a dead baby’s tiny feet.
For the US, alliances in the region would become more complicated and its regional challengers, Russia, Iran and China, would be strengthened.
For the EU, with its emancipated Muslim population active on social media, there will likewise be a backlash, supported by various human rights groups.
But these ramifications pale against what will happen if the ICJ hears the case and finds Israel guilty. The US and the EU will then have to take a stand that engages with the judgment. Any ambivalence or waffle will damage their moral standing to speak against human rights violations.
Whatever the legal result, we are arguably seeing the closing of an era that began with the end of the Cold War. NATO’s spread is now openly challenged by Russia. In the Middle East, the Pax Americana is challenged by Iran, Russia and China.
Domestically, the US and the EU establishments are losing credibility with voters and, internationally, they are now accused of being hypocritical about human rights. Thirty years ago, they preened themselves on being at the cutting edge of history. Now, they’re openly accused of being retrograde.