Already in the dock for genocide

LAST week, the International Court of Justice (ICJ) demanded that Israel should do everything in its power to prevent acts of genocide in Gaza; but disappointingly, it stopped short of ordering an end to the ongoing offensive.

South Africa, which initiated the charge against Israel, welcomed the decision as a “decisive victory for the international rule of law”.

But there is disappointment that the preliminary ruling did not order a cessation of hostilities as Malaysia and many other countries had hoped for.

Prime Minister Datuk Seri Anwar Ibrahim responded to the decision by saying that Malaysia would continue to monitor and use all available channels to condemn Israeli attacks.

“According to our brothers and sisters in Palestine, the ICJ did not completely demand the end of the war, but it is a clear stance that it is condemning the attacks,” he said, adding that it was also a call for humanitarian aid to the Palestinians to be expedited.

In his comments earlier, Foreign Minister Datuk Seri Mohamad Hasan said the interim orders issued by the court at The Hague on Jan 26 vindicated Malaysia’s call for Israel to be held accountable for the atrocities, crimes against humanity and genocide committed on the Palestinians in the Gaza strip.

But the ruling clearly identifies that Israel’s military actions in Gaza do come under the ambit of the Genocide Convention, that the Palestinians are indeed a distinct group facing the crime of genocide, and that South Africa’s claim of Israeli engagement in “plausible genocide” is valid.

While it might take years before the ICJ issues its final verdict, the fact that the ruling included “plausible genocide” is a significant indication that Israel would eventually face a trial.

The ICJ’s decision should also be lauded for firmly imposing six “Provisional Measures” on Israel.

The onus is now on Israel to ensure that acts deemed genocidal under the Genocide Convention do not take place in Gaza; its military does not commit genocidal acts; prevent and punish incitement to genocide; enable and facilitate the provision of basic services and humanitarian assistance to the people of Gaza; prevent destruction of and preserve evidence of genocide in its military operations; and to report to the ICJ on its compliance within one month.

It is notable that 15 of the 17 judges of the ICJ ruled in favour of South Africa. They included judges from the United States (Judge Joan Donoghue, who is president of the court), Australia, Brazil, China, France, Germany, India and Japan. The two dissenting judges were the ad hoc judge from Israel and the other from Uganda.

With the strong presence of judges from Israel’s allies – such as the US, the country’s strongest supporter – mainstream media and political leaders from the West had expected the ICJ to reject South Africa’s petition.

US secretary of state Antony Blinken, for example, described the case filed against Israel as “meritless” while UK foreign secretary David Cameron lectured South Africa not to “bandy around words such as genocide”.

As expected, Israel showed utter contempt for the decision – with Prime Minister Benjamin Netanyahu describing the charge of genocide as “outrageous” and said the country would do whatever is necessary to defend itself, claiming Israel had an “unwavering commitment” to international law.

In his analysis of the ICJ’s ruling, The Guardian’s diplomatic editor Patrick Wintour noted that it was “devastating for Israel and awkward for allies such as the UK and US, which belittled South Africa’s case”.

“The irony is self-evident. The concepts of ‘crimes against humanity’ and ‘genocide’ were created by Raphael Lemkin, a Jewish law professor.

“For Israel, a nation in part born in 1948 from the horrors of the Holocaust and centuries of persecution, this could be a moment for reflection. Its whole national identity is intertwined with the Holocaust, just as South’s Africa’s is indivisible from apartheid,” he wrote.

Another astute observation was made by Dr Quraysha Ismail Sooliman, a post-doctoral researcher in the department of political sciences at the University of Pretoria. She wrote that South Africa’s ethical position at The Hague could be viewed as “a manifestation of historical karma”.

“Our legal team presented a case in the world’s highest court, situated in the Netherlands, a country that had previously colonised it. The essence of the case was on behalf of an oppressed population that had supported the black majority during the days of apartheid. Specifically, the case targeted Israel, a country that had collaborated with the apartheid regime.

“The parallels between those who supported apartheid in South Africa and those supporting apartheid in Israel persist. Colonial powers appear to subscribe to a ‘back your buddy club’. They believe that as long as they pretend that they are the forces of good and repeat the same, the lie will become a truth and everyone will consider them as a civilised moral authority to aspire to.”

Tarik Cyril Amar, a German historian at Koç University, sees the ICJ ruling on genocide as a “crushing defeat” for Israel.

He wrote that beyond the issue of the ceasefire, there were other – and, from the Israeli perspective, probably more frightening – factors.

“For even if the US keeps shielding Israel, this is a bigger world. Western governments and politicians that have supported Tel Aviv unconditionally – with arms, diplomatic and public-relations cover, and by repressing Israel’s critics – will feel a chill: The UN Genocide Convention and the Rome Statute don’t just condemn perpetrating a genocide but also not preventing or being complicit in one.

“With the ICJ now having confirmed at the very least that genocide is probable enough to merit a case and require immediate action, Joe Biden, Antony Blinken, Ursula von der Leyen, Olaf Scholz, Rishi Sunak, Keir Starmer, Emmanuel Macron, Annalena Baerbock, to name only a few, should start worrying: While the ICJ does not go after individuals, the International Criminal Court (ICC) does.”

Media consultant M. Veera Pandiyan likes this observation by Holocaust survivor Simon Wiesenthal: “What connects two thousand years of genocide? Too much power in too few hands.” The views expressed here are the writer’s own.