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In a powerful two-part article, Professor ZIYAD MOTALA explores the courageous move by South Africa to bring Israel before the International Court of Justice (ICJ), exposing its ongoing genocide of the Palestinian people. In this first part he writes how South Africa’s challenge, with meticulous legal arguments anchored in international law, not only sheds light on Israel’s actions but also questions the commitment of Western nations to a rule-based international system.
Part 1
South Africa’s courageous move to bring Israel before the International Court of Justice (ICJ, on January 11 and 12, 2024, exposing its complicity in the ongoing Palestinian genocide, stands as a beacon of courage challenging both Israel and its staunch supporters in the Western world. This pivotal moment not only illuminates Israel’s actions but also compels Western nations to question the true extent of their commitment to a rule-based international system. South Arica’s challenge also shone light on the inaction of leaders from Muslim majority countries. It further shows the hypocrisy of the International Criminal Court (ICC) prosecutor Karim Khan for his grand standing on Russia but tepid approach to worse and documented atrocities by Israel.
In crafting their legal arguments, South Africa meticulously examined international law and human rights principles, anchoring the case in the Genocide Convention. The detailed allegations against Israel, coupled with a fervent plea to cease genocide and provide humanitarian aid to Gaza, showcased South Africa’s commitment to upholding international law with measured and principled determination. The nation’s unique distinctive moral voice, forged through its history with apartheid and transformation into a democracy valuing human dignity, resonates powerfully on the global stage.
The South African legal team, navigating historical and geopolitical complexities, skillfully unveiled Israel’s genocidal actions and intent. Beyond highlighting mass killings and deliberate erosion of Palestinian existence, they underscored Israeli intent within the framework of human rights and the Genocide Convention, weaving a compelling narrative for the ICJ’s consideration.
Predictably, Israel’s principal backers – the United States, Britain, Germany, and France – dismissed South Africa’s allegations with disdain, revealing implicit racist assumptions that a white majority cannot perpetrate genocide against people of color. Prior to the court’s preliminary judgment, the US Secretary of State was disdainful of the South African case as distracting and the charge of genocide was meritless. The British Foreign Secretary was equally dismissive saying that Israel was a democracy and to charge them with genocide was nonsense. The German Vice Chancellor similarly remarked South Africa’s claim as a distortion and simply wrong. The French Foreign Minister characterized the allegation of Israeli genocide as crossing a moral line. None of the leaders from these countries looked at the facts let alone seriously engaged the facts presented by South Africa.
Yet, the South African legal arguments presented a chilling yet cogent case, demonstrating legal authority, marshaled facts, depth of reasoning, and logical precision. The ICJ judges, unpersuaded by Israeli defense objections, overwhelmingly ruled against the notion that South Africa’s claim lacked merit or authority. The powerful optics of the court order, delivered by President Joan Donoghue a US career civil servant that served as the Legal Advisor at the State Department with concurrence from judges in Germany and France, preemptively counter any claims of bias.
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The court’s preliminary order, calling on Israel to prevent genocide, cease genocidal actions, punish incitement, provide urgent aid to Gaza, and preserve evidence, underscores the urgency and gravity of the situation. Attempts by Israeli and U.S. spin doctors to downplay the order by emphasizing the absence of an order calling for a ceasefire, conveniently sidestepped the fact that the Genocide Convention specifically addresses genocide, not the broader crime of aggression. One would think that Israel’s principal backers would be chastened and reflective that the preliminary order found the application to be urgent and emphatically negates any notion that the South African claim is spurious. Tellingly, the court order requires Israel to report back within a month to demonstrate what measures it has taken to comply with the court’s order. It was chilling to hear the court President quote the intent to commit genocide by the highest level of Israeli government officials – yet the US and other principal backers of Israel appear to remain unmoved as to the gravity of the charge facing Israel and the facts that support the prima facie case. Even the Israeli Judge Ad-Hoc Aharon Barak concurred in the order ordering Israel to prevent and punish incitement to commit genocide and to ensure provision of urgent services and humanitarian aid in Gaza.
The order is binding on Israel. Israel in all probability will ignore most of the orders echoing apartheid South Africa’s defiance in the South West Africa case in 1971. In the short term, it is unlikely that the western governments that support Israel will change course. In the aftermath of the order, several western countries blindly aligned with the Israeli narrative that workers from The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA were complicit in the October 7 attacks and stopped their funding to the agency. It is not lost on the global south that the governments of countries responsible for the greatest historical genocides such as the US against the native American population, Britain in Bengal-India and Tasmania, France in Algeria, and Germany in Namibia and against the Jews in Europe have not shed the worse of their racist political DNA – they align blindly against people of color and continue to support genocidal practices against people of color. The racist, colonial settler mentality seen in Winston Churchill’s statement in 1937 about the Palestinians sadly has vitality in how western nations treat Palestinians. Churchill said about the Palestinians, “I do not agree that the dog in a Manger has the final rights to the Manger even though he may have been laying there for a very long time. I do not admit that right, I do not admit for instance that a great wrong has been done to the Red Indians of America or the Black people of Australia. I do not admit that a wrong has been done to these people by the fact that a stronger race a higher grade race a more worldly-wise race to put it that way has come in and taken their place.” Facts and law do not matter. Racism remains entrenched in the colonial vision of law and its international policy.
Genocide is recognized as the crime of crimes. The international obligation on genocide mandates not to commit nor to support genocide. The court’s finding that there is a prima facie case against Israel places the United States, Britain, Germany, France, Canada, and the many states in the European Union who arm and blindly support Israel on notice – they are also presumptively complicit in genocide. The ICJ order cements the perception of western hypocrisy of shielding its allies from human rights accountability and sanctioning adversaries.
Similar to the historical stance against apartheid in South Africa, the recent unfavorable preliminary ruling against Israel serves to bolster the momentum of progressive forces and civil society groups. This development intensifies the pressure on governments and international institutions, prodding them to undertake enforcement actions against Israel. Notably, the International Criminal Court (ICC) displayed a remarkable expediency in issuing an arrest warrant for Russian President Vladimir Putin. However, the contrasting stance of the ICC and its Chief Prosecutor, Karim Khan, becomes evident in the face of overwhelming evidence presented by South Africa to the ICJ. This exposure highlights the ICC’s Western bias in its failure to issue arrest warrants for individuals such as Benjamin Netanyahu, Isaac Hertzog, and other Israeli leaders who stand credibly accused of advocating and implementing genocidal actions.
But the momentum carries on. On the same day that the ICJ delivered its preliminary order, a federal court in Oakland California, heard legal arguments and testimony by the Center for Constitutional Rights representing a group of Palestinians against President Biden, Secretary of State Anthony Blinken, and Secretary of Defense Lloyd Austin for the U.S. official’s failure to prevent and complicity in the Israeli government’s unfolding genocide against the 2.2 million Palestinians in Gaza. The court subsequently ruled that Israeli action in Gaza plausibility constitutes genocide and implores the US government to examine the results of their unwavering support of the Israeli siege of Gaza. The court refrained from granting the plaintiffs the remedy they sought because of a peculiar justiciability standard in US constitutional doctrine called the “political question” that precludes courts from ruling on matters of foreign policy. This is a further damnation of the US. The court in essence ruled that the US is plausibly supporting genocide in violation of its international law obligations. However, the court lacks the authority to order the US government to end its complicity in genocide. A similar legal action is under consideration in Britain, marking a crucial juncture in the burgeoning legal movement that confronts Western hypocrisy and seeks accountability for those endorsing genocide.
Similar to the struggle against apartheid South Africa, Israel and its supporters are unlikely to change course without citizen pushback in Western countries and economic consequences. The Boycott, Divestment and Sanctions Movement (BDS) has gained traction over the past few months resulting in major financial losses by Starbucks and McDonalds – underscoring the tangible impact of BDS. Puma has announced the end of its support for the Israeli soccer team. Going forward, civil society must, as was the case with South Africa, increase their activism and pressure the international community of states to adopt meaningful enforcement action against Israel and those countries and corporations that support the Zionist project.
Opinion polls indicate that the majority of the citizenry in many western countries disapprove of their governments blind support for Israel. Leveraging power at the ballot box is another powerful tool. The upcoming US election may serve as a litmus test, with the moniker ‘Genocide Joe’ potentially influencing its outcome.
Ziyad Motala is Professor of Law at Howard Law School in the United States.
