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South Africa's ICJ success has ushered in a new era of international law in pursuit of justice for Palestine

January 29, 2024 at 12:00 pm

A view of giant screen showing Nelson Mandela’s quote as people, holding Palestinian flags, gather outside the International Court of Justice during the session on the day the International Court of Justice (ICJ) rule on Gaza genocide case against Israel made by South Africa in the Hague, the Netherlands on January 26, 2024. [Nikos Oikonomou – Anadolu Agency]

Ever since South Africa brought its case against Israel at The Hague during December, the world’s attention has been riveted on the outcome. The question that dominated public discourse was whether the ANC-led government of President Cyril Ramaphosa had made the right move to what effectively posed a crucial moral and political challenge to Israel’s western protectors. South Africa’s team of legal experts ensured that their case was watertight and that a remarkably detailed and compelling case was presented to the ICJ panel of judges.

Claims of “meritless” and “baseless” by senior western leaders then emerged to discredit South Africa’s submission. The actual words uttered by the Biden administration were: “Meritless, counterproductive and completely without any basis in fact whatsoever.”

Such demeaning efforts to dismiss the case were matched by Israel’s legal team, whose shameless members sought every legal trick to persuade the International Court of Justice (ICJ) to reject the application by South Africa.

Thus, when the ICJ issued its verdict, all the naysayers who disparaged SA’s legal arguments vehemently were horrified to hear the court rule that it is plausible that Israel is committing genocide against Palestinians in Gaza. This threw Israel and its backers off guard and they realised that the end of their era of “untouchability” had dawned. The belief that the unconditional political leverage it enjoys courtesy of the United States, United Kingdom and Western Europe would continue to allow Israel to act with unlimited impunity, was shattered by the ICJ ruling.

Various legal minds who have studiously analysed the judgement, underline that it “pointed to dozens of explicit statements of ‘intent to destroy’ by Israeli state leaders, wartime Cabinet ministers and senior army officers as well as the unprecedented levels of killing and destruction.”

By granting the order sought by South Africa, the court issued provisional measures, recognising the dire situation in which there are “more than 26,000 Palestinians killed and more than 64,000 wounded in Israel’s bombardment, as well as almost 2 million people forcibly displaced now facing famine and the spread of infectious diseases.”

READ: Uganda disowns ICJ judge who voted in favour of Israel in genocide case

Meanwhile the Zionist propagandists have claimed gleefully that the absence of an order for a ceasefire is a “victory” for Israel. They deliberately omit to mention that by an overwhelming majority vote of ICJ judges of 15 to 2, a compliance order to halt any acts of genocide was issued. The instructions are thus very clear: stop the genocide and ensure that the regime’s military complies.

Moreover, “as part of the court’s provisional measures, Israel must also prevent and punish incitement to genocide; ensure the provision of urgent aid to Gaza; prevent the destruction of evidence and ensure its preservation; and provide the court with a report on these measures within a month.”

‘Palestinians don’t benefit from ICJ ruling, they’re still dying’ – Cartoon [Sabaaneh/Middle East Monitor]

According to Raz Segal, an associate professor of Holocaust and genocide studies and endowed professor in the study of modern genocide at Stockton University in New Jersey, the implementation of the ICJ ruling necessitates a ceasefire. “In effect, these orders do require a ceasefire, for there is no other way to carry them out,” he explained. His assessment echoes the views of SA’s Minister of International Relations Naledi Pandor, who contends that in exercising the order, “there would have to be a ceasefire.

An interesting observation by Segal is that the ICJ ruling stems from the UN Genocide Convention of 1948, based on the view that Nazism and the Holocaust were exceptional. “This served a purpose: It separated the Holocaust from the piles of bodies and destroyed cultures that European imperialism and colonialism — still very much ongoing at the time — had left around the world in the preceding few centuries.”

READ: 100 leading figures call for ending ‘selective’ deployment of global values

In other words, he explained that the exceptional status of the Holocaust, which rendered the “new Jewish state” in 1948 as exceptional too, led to a wilful blurring of its foundational crime, the Nakba: the mass expulsion of more than 750,000 Palestinians and the destruction of hundreds of their villages and towns in the 1948 ethnic cleansing.

The result according to him is that in this exceptional framework, it became unimaginable that Israel could commit any crime under international law. “Impunity for Israel was thus baked into the international legal system after World War Two. The urgent need to obscure the Nakba also emerged from the broader impetus to deny the nature of the Israeli state as a settler-colonial project.”

The bitter truth, according to Segal, is that paradoxically, Israel’s creation reproduced the racism and white supremacy that had targeted Jews for exclusion and destruction in Europe.

We are reminded of this racist mentality by Israeli leaders such as President Isaac Herzog, for example, who expressed the white supremacist and colonial mindset explicitly in an interview on MSNBC on 5 December: “This war is a war that is not only between Israel and Hamas,” he said in response to a question about the mass killing of Palestinians in Israel’s attacks on Gaza. “It’s a war that is intended, really, truly, to save Western civilisation… We are attacked by a jihadist network, an empire of evil [which] wants to conquer the entire Middle East, and if it weren’t for us, Europe would be next, and the United States follows.”

South Africa’s monumental submission and the positive outcome it received by an overwhelming majority of the 17 panel judges at the ICJ is thus much more than groundbreaking. Segal’s profound reading of it implies that, until now, the concept of genocide “functioned to protect the exceptional status of the Holocaust and Israel in the international legal system and to enable rather than challenge this long-held view.”

Until now.

“With the ICJ ruling that Israel’s attack on Gaza is plausibly genocidal, every university, company and state around the world will now need to consider very carefully its engagement with Israel and its institutions. Such ties may now constitute complicity with genocide.”

OPINION: Europe exposed: Is the EU a direct partner in the Israeli genocide in Gaza?

If indeed the historic ICJ ruling has paved the way for courts to consider the crime of genocide as a legal framework to describe what Palestinians are enduring, South Africa deserves full credit for ushering in a new era of international law. “Lawfare”, after all, remains a crucial component of resistance against oppression, occupation, racism and genocide.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.