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ICC and ICJ measures indictment on the state of Israeli democracy

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Pro-Palestinian demonstration outside the Peace Palace in The Hague ahead of a hearing at the International Court of Justice on the legal consequences of Israel’s occupation of Palestinian territories. Various countries have their say during hearings. – Picture: Robin van Lonkhuijsen / ANP MAG / ANP via AFP

By Wesley Seale

A month ago, Republican staffers were suggesting that foreign policy will have no bearing on the upcoming US presidential campaign. This is now quickly changing.

According to Harvard Kennedy School political scientist, Thomas Patterson: “in the post-World War Two period, foreign policy has only played a big role in US elections when things aren’t going well”.

This week, White House correspondent for Newsweek, Daniel Bush, suggested that “a small number of Democrats protesting the president’s [Joe Biden’s] support for Israel’s war in Gaza could prevent him from winning a second term”.

Furthermore, Bush believes that “foreign policy played a major part in the 1968 election in which Republican Richard Nixon defeated a Democratic rival as America was rolled by campus protests over the Democratic administration’s deepening involvement in Vietnam”.

And it is once again US campus protests in the past two months that have seen the prospects of a second Democratic administration under Joe Biden crumble.

Two events this past though will possibly turn the tide not only in favour of the plight of Palestinians, albeit slowly, but which will immensely shift public opinion in the west in general and university campuses in the US in particular.

This week’s announcement that the prosecutor of the International Criminal Court (ICC), Karim Khan, will seek arrest warrants for Israeli prime minister, Benyamin “Bibi” Netanyahu, and Israeli defence minister, Yoav Gallant, suspecting them of war crimes and crimes against humanity should send alarm bells ringing through western capitals.

While Khan also indicated that warrants will be sought for Hamas leaders, Yahya Sinwar, Mohamed Deif and Ismail Haniyeh, for western leaders it will be the first time in the history of the ICC that the court has sought arrest warrants against the leaders of a so-called western democracy.

The second event that will certainly continue to give momentum to opposition against Israel in the west is the International Court of Justice (ICJ) further interim ruling on measures that Israel must halt its military operations in Rafah with immediate effect and ensure the efficient channelling of humanitarian aid into Gaza.

According to an Israeli activist in Tel Aviv, the possible indictment by the ICC of these Israeli leaders signals the culmination of a process led by Netanyahu whereby he has destroyed internal Israeli checks and balances.

If Israel has had scant regard for international law hitherto, we can only imagine how Bibi has completely disregarded the rule of law in Israel itself.

He, together with members of his coalition including Gallant and Ben Gvir, have acted with absolute impunity when it comes to Israel’s internal rule of law and the possible indictment by the ICC proves the lack of trust by Israelis themselves and the international community alike that Israel, as a so-called democracy, cannot hold its own to account.

Even worst still, except for Labour and the Arab Israeli parties, most other parties in the Israeli parliament, the Knesset, including that of Benny Gantz, has come out against Khan while paying negligible attention to the effects that Bibi and his regime has had on the rule of law for ordinary Israelis.

However, when one gets into bed with fascists such as Itamar Ben-Gvir and Bezalel Smotrich, leaders of the most rightwing parties Israel has ever seen in its history, then impunity will reign in Israel and the international community, through the ICC and ICJ, will be forced to intervene.

Ironically, Netanyahu’s response to the application for his arrest warrant was to reject “with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas”. Yet he and his coalition partners have destroyed democracy in Israel.

Biden and Blinken, still undeterred by the effect that their mishandling of the genocide in Gaza could have on their re-election, predictably sided with Israel rather than the rule of law.

Biden called Khan’s announcement “outrageous” while Blinken, blurting Bibi bile, rejected “the prosecutor’s equivalence of Israel with Hamas”.

A few weeks ago, the Biden administration had drawn the line in the sand with Bibi.

“Bomb and invade Rafah,” they suggested “and we will withhold arms.”

With an interim ICJ ruling which prohibits Israel from its military operations in Rafah and which insists that it must ensure humanitarian aid to Gaza, the Biden administration will now hopefully appear to be more humane and be emboldened in its dealing with the Netanyahu regime.

Again, BRICS Plus members, the United Arab Emirates and Egypt, both integral regional players in the war in Gaza, immediately welcomed the ruling by the ICJ.

The UAE’s foreign ministry emphasized the “importance of reaching an immediate cease-fire, providing protection for civilians, preventing further loss of life, and stopping the escalation throughout the occupied Palestinian territories”.

According to a statement by the Egyptian foreign ministry, the country which shares a border crossing with Gaza at Rafah, “called on the [UN] Security Council and influential international parties to fulfil their legal and humanitarian responsibilities by adopting decisive measures to put an end to the humanitarian catastrophe in Gaza”.

Egypt has joined South Africa in its case against Israel in the ICJ.

In London, His Majesty’s outgoing government was not doing any better than their American counterparts were.

Rishi Sunak, or better known as ‘Rishi Sunk’ these days in the British media, intimated that the ICC move made “absolutely no difference” to peace in the region. If only he realised that the biggest difference the indictments will make is in the changing of the guard in Downing Street.

However, the time has come that we put His Majesty and his government on notice in the Commonwealth. As it happened with apartheid South Africa, the rest of the Commonwealth must isolate the government of the UK and point out their error of judgement once again.

While we may well have a different government in the UK by the time the Commonwealth Heads of Government sit in Apia, Samoa, later this year, South Africa must once again lead the charge in the Commonwealth in isolating London, which has hitherto propped up the Israeli government and supplied them with arms even when Washington has threatened to withhold such arms.

Despite the ICJ interim ruling in January and in the face of the possibility that Israel is committing genocide and war crimes against the Palestinian people, the UK foreign secretary, Lord David Cameron, has insisted on selling arms to Israel.

Nonetheless just as this past week has been a long one in the plight of Palestinians, so too this week will prove to be a long one for South Africa. Our country’s foreign policy and our very application to the ICJ may well be withdrawn if the ruling party changes after our national and provincial elections this Wednesday.

While democracy may well have been destroyed in Israel and while new administrations may be ushered in both in London and Washington by the end of the year, South Africa too may have a new government with a new foreign policy by the end of this week. For nothing can be kept from democracy’s purview, not even foreign policy.

Dr Wesley Seale has a PhD in International Relations