Under international law, genocide is defined as an intent to destroy – in whole or in part – a national, ethnic, racial or religious group. According to U.N. convention, this includes through killings; serious bodily or mental harm; inflicting lethal conditions and measures to prevent births, among other means.
The South African case includes references to the Israeli use of indiscriminate bombing and the cutting of electricity, food, water and medicine supplies to Gaza besides other measures.
“The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the genocide convention,” the case states. Numerous states have explicitly welcomed South Africa’s application, including, Jordan, Turkey, Pakistan, Malaysia and Brazil as well as the Organisation of Islamic Cooperation (OIC).
South Africa, justified its right to bring Israel to the ICJ based on an erga omnes obligation laid down by the genocide convention, meaning that it is the duty of an individual state towards the international community as a whole. The precedent was first created by the Gambia, when it took Myanmar to the ICJ accusing it of genocide against the Rohingya in 2019. In 2021 the court imposed “provisional measures” on Myanmar, requiring the junta to direct its forces not to commit genocide, and to preserve all relevant evidence. It may take years for the court to make a final ruling, but it could also issue “provisional measures” in the meantime to mitigate the risk of genocide. This is the main aim behind the South African initiative, to get the ICJ to issue a provisional measure to call for a ceasefire and stop the killings, something that Israel and the US has been resisting all this while.
The ICJ’s decisions, by the way, are legally binding, although it does not have an enforcement mechanism. Only the UNSC and UNGA can actually do that. Hence guilty countries tend to ignore such decisions for obvious reasons. The Israeli government, more specifically premier Netanyahu, has preempted any move by openly declaring that Israel will ignore any provisional measure for a ceasefire in Gaza. It relies on the US to protect it against any UNSC resolutions, but for Israel to do so would cause enormous PR damage by and loss of influence on the world stage for Israel and its principal backers, namely the US, UK, Canada and Germany.
Why is the South African action so significant now? Previously, major countries like the US have been reluctant to refer offending countries to the ICJ. Take the case of the US. The United States Congress delayed ratifying the Convention on genocide from 1948 until 1988 some forty years. The reason is not too difficult to fathom. Part of the reason is the fear that ratifying such a law could leave the US vulnerable to prosecution for the genocidal destruction of the Native Americans or (Red Indians) and for its policy on racial segregation in the 50s and 60s. Internationally, America has been involved in many major wars against Japan, North Korea, Vietnam, Afghanistan, Iraq (twice), Somalia, Syria, Djibouti, Libya, Mali to name but a few. The US was also afraid that other countries could take it to the ICJ for committing genocide.
The interesting thing is that when the US Senate did ratify the convention in 1988, it also made genocide a crime under US law, BUT it blocked the route to the ICJ. It stipulated the US could not be taken to court without its government’s consent. By the principle of reciprocity, any state it took to the court could claim the same protection. Like the US, other big powers have been reluctant to take other states to the ICJ for fear of being pursued in the court themselves or facing accusations of hypocrisy. Although the US likes to dress itself in the garb of champion of democracy, human rights and peaceful co-existence, technically, the US itself could never be taken to the ICJ. Double standards at work but not many people are aware of this fact.
That deadlock has now been broken by firstly by the Gambia and now secondly by South Africa in deciding to take the initiative which its bigger and more powerful brother countries were reluctant to pursue. By taking direct action rather than engage in useless rhetoric in times when atrocities are committed at the international level, these countries have showed the way how something concrete can be done. This is very encouraging and bodes well for the future of international politics. Let us hope that more countries especially the Muslim Nations in the OIC learn from their South African and Gambian brothers and stop playing the role of helpless bystanders every time the big powers unleash their imperialistic might on the countries who cross their paths.
Possible Outcomes
Those that care about justice and the plight of the Palestinians hopes that this court action will result in some immediate relief to the sufferings of the victims in Gaza. International law experts following the latest ICJ case are in agreement that given the gravity of the situation, the Court is likely to reach its decision quickly. It may well be that the court’s expected provisional measure (to call for a ceasefire) will be promptly obeyed by both the protagonists. This is the best case scenario. This is however possible but less probable. Netanyahu has made it clear he will not change course one bit.
Germany’s recent announcement that it rejects the genocide accusation and will intervene as a third party in the ICJ proceedings is an ominous sign that the western powers want the war in Gaza to continue until Israel completes its mission to eliminate Hamas and its supporters (read Palestinian civilians). This will cause further delay to a declaration for a ceasefire. By then, there may not be much of the Palestinian population left in Gaza to be saved from total extinction. This is the most likely scenario under the present circumstances. Such a move would strengthen the overwhelming evidence that the western powers are also complicit in supporting the genocide in Gaza.
What can we do in the mean time? Social media has proven to be a powerful levelling tool in influencing world public opinion. The genocide in Gaza is being streamed live daily into the handphones and TV screens of every person on the planet today. Despite the efforts by mainstream media to censure, delete, spin or alter the truth, people’s perceptions have been turned over inexorably to align with the Palestinian cause. This is more so in the US where public support for Palestine has increased exponentially whilst support for Israel is heading south very fast.
Public demonstrations and actions in the US are crucial to break the current deadlock. POTUS Joe (genocide) Biden is feeling the heat as potential voters are abandoning their support for him in droves. Without their votes, old Joe will be merely a one-term president, the price he will pay for his total unwavering support for Israel. The fear of losing is the way to cause America to lean on Israel and cause it to stop its genocidal policies. Increasing public pressure in the US is one sure way to bring relief to the Palestinians. Losing the presidential election is only one small part of the equation. If America and the West misjudges the mood of the global public opinion, the capitalist narrative will undoubtedly cease to exist to be replaced by the Russo-Sino narrative as the dominant ideology of the world. The warning signs are already clearly written on the horizon (re BRICS). Biden is undoubtedly well aware of this possibility.
Therefore although the ICJ course suit initiated by South Africa is undoubtedly positive, it cannot stand by itself. World citizenry must mobilize public opinion and support everywhere to force the western powers to moderate their stance, bring Israel to heel and let Palestine to finally be free, God willing
Source: Abu Umair
