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‘Ruling a triumph for international law, protection of human lives’

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Picture: Timothy Bernard / Independent Newspapers / January 26, 2024 – Deputy to the Ambassador for Palestine, Bassam Elhussiny shows a victory sign as he hugs President Cyril Ramaphosa after the favourable pronouncement of the International Court of Justice on Friday as ANC members take a break from a legotla and NEC meeting at Birchwood hotel in Boksburg to turn to the ICJ outcome of South Africa’s case for Palestine. It is immensely sad that the ruling of possible genocide came on the eve of the International Holocaust Remembrance Day, as the world was preparing to remember that horrible tragedy of eight decades ago and vowing once more that it would never happen again, the writer says.

By Wesley Seale

Three months after winning the Rugby World Cup, our country has again made headlines around the globe and is basking in the enthusiastic admiration of some.

As with the viewing of the RWC matches, some arranged group viewings of the interim judgment passed by the International Court of Justice (ICJ), but unlike the RWC final, we are divided on its outcome.

Despite this division, all of us can be proud to be South Africans. Even if some of us disagree with the notion that Israel is committing genocide, the interim ruling is a triumph for international law and the protection of human lives and rights, everywhere, even in Israel.

Political commentary before the ruling suggested that the judgment would go along national political stances, that is the American judge would take her cue from the US policy towards the conflict. This was not so. The court stuck to the law.

Even in the case of the first African woman ever to sit on the court and dissenting Ugandan judge, Julia Sebutinde, the Ugandan ambassador to the UN came out to state that her dissenting judgment “does not represent the government of Uganda’s position on the situation in Palestine”.

Poignantly, the court did not instruct the “C” word. Maybe because it is a political word. Asked whether she was disappointed that the ICJ had not instructed a ceasefire, International Relations and Co-operation Minister Naledi Pandor said in her view, if Israel did as the court instructed, it would practically result in a ceasefire.

In his response to the interim judgment, Israeli Prime Minister Benjamin Netanyahu opened his statement by declaring daringly that “Israel’s commitment to international law is unwavering”. Yet he called the court’s determination of a plausibility of genocide “false” and “outrageous”.

Still, this is not the first time that Israel has been dragged to the ICJ. In 2004, the court ruled that the apartheid wall built on the West Bank by the occupying power was a violation of international law. Israel ignored that ruling. Netanyahu was Israeli finance minister at the time and had financed the project. In a response to a question on whether she hopes Israel would abide by the ruling, Pandor expressed that she has never really been hopeful of Israel “but Israel has very powerful friends” that she hopes “will advise Israel that they should act in terms of the order”.

She is correct. Our focus must now turn to those countries in the West, the US, the UK and Germany in particular, who have aided and abetted Israel in her actions in Gaza where the plausibility of genocide, as pronounced by the court, now exists.

Stepping back on his comment that our application to the ICJ was “meritless”, the US State Department produced a curt statement detailing the telephone call between US Secretary of State Anthony Blinken and Pandor, held on the eve of the judgment.

The conversation included sentiments that there was “the need to protect civilian lives, ensure sustained humanitarian assistance to Palestinian civilians, and work towards lasting regional peace that ensures Israel’s security and advances the establishment of an independent Palestinian state”.

Yet hitherto, the establishment of an independent Palestinian state has been the chasm between Washington and Tel Aviv because the Netanyahu regime has vehemently opposed the establishment of such a state.

Already, the Biden administration has had to deal with the fallout between Netanyahu and Qatar as a result of disparaging remarks made by the Israeli leader towards Doha. In a leaked recording, Netanyahu was quoted as saying that “Qatar … is no different in essence than the United Nations … and the Red Cross is even more problematic”.

These remarks once again reaffirm not only what Netanyahu thinks of international institutions such as the UN, of which the ICJ is a principal organ, but also further isolates Israel in the region because Qatar is the only other country, with Egypt, prepared to assist Israel in negotiating with Hamas.

It is therefore for the Biden administration to use the interim judgment as leverage to soften Netanyahu’s approach and be more cautious in its support of Israel.

As South Africa’s Department of International Relations and Co-operation statement in the wake of the judgment correctly points out, given now the prima facie case of genocide against Israel “this necessarily imposes an obligation on all states to cease funding and facilitating Israel’s military actions, which are plausibly genocidal”.

In October last year alone, the US Congress granted an “additional” $14 billion (about R263bn) to Israel in aid. The total envisaged package is $105bn (about R1.9 trillion).

In this US election year, we should also wish that the Biden administration would be loathe to have itself accused of being a party to genocide.

Naturally, we would expect Western democracies to adhere to the rule of law, especially after reassurances from US National Security Council spokesperson John Kirby, speaking at a White House press conference in the aftermath of the ICJ ruling, expressing that the US had been calling and urging for most, if not all, of what the court had ordered.

What is also equally critical for the international community is the sentiments expressed by Pandor in the lead-up to the interim judgment. For her, the test was not so much whether the court would hold Israel accountable, but rather whether international institutions such as the ICJ would protect all people, everywhere.

This is significant because in the judgment, the court repeatedly mentions a number of UN agencies and organisations that were involved and/or which had spoken out on the situation in Gaza in the last three months. In highlighting these, the court passed Pandor’s test, but we will have to wait and see what the outcome of deliberations on the matter would be in the UN Security Council, which is the implementing agent.

Should the UN Security Council be paralysed, as it has been in the last 16 weeks, with the US or even the UK exercising its veto right to protect Israel, it would prove the thinking of people such as Pandor and the party she belongs to, the ANC, correct that global institutions such as the UN and the UNSC particularly, need to be reformed.

With South Africa’s application to the ICJ there were murmurings that it should have consulted with other African states and the African Union. Through the sole dissenting judgment in most instances of the order, Sebutinde ruled that the matter was a political rather than a legal one, and this again illustrates just how divided the African continent remains on the injustices committed by Israel.

Ironically, it is immensely sad that the ruling came on the eve of the International Holocaust Remembrance Day. While the world was preparing to remember that horrible tragedy of eight decades ago and vowing once more that it would never happen again, a regime was being accused of similar crimes.

All of this spells one conclusion: Israel does not need to be protected from Hamas, the Palestinians or its neighbours in the Middle East. If anything, Israel must be protected from Netanyahu.

Dr Wesley Seale holds a PhD in International Relations