Odds stacked against Israel in genocide case

With many activists calling for a nation to stand up and invoke the 1948 Genocide Convention over Israel’s conduct during its war on Gaza, it was South Africa that took that step on Dec. 29. All eyes are now on the International Court of Justice in The Hague, as this case could be a game-changer that stops the Israeli aggression against Palestinians.

Francis Boyle, the American international law professor, carefully examined the 84 pages of documents submitted by South Africa and concluded that it has a solid case against Israel. In 1993, Boyle was able to obtain a genocide indictment for Bosnia and Herzegovina against the Federal Republic of Yugoslavia in the International Court of Justice.

The South Africa hearing is scheduled to be held on Jan. 11-12. An order could be issued within a week for Israel to cease and desist all actions that could amount to genocide. Hence, it would be an order to stop the aggression against Palestinians. Article 1 of the Genocide Convention calls on all parties to the convention to prevent genocide being committed once a cease and desist order is issued.

The case is a strong one, as the genocidal intent of the Netanyahu government is very clear. The crime of genocide, as defined by the UN in 1948, is “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” According to Omer Bartov, a professor of Holocaust and genocide studies at Brown University, genocidal intent usually translates into genocidal actions and ethnic cleansing is usually followed by genocide. In an op-ed for The New York Times published in November, Bartov mentioned the case of Jews in Nazi Germany. Initially, the Nazis’ plan was to remove them from German territories, but later the aim became to annihilate them.

The racist Israeli government of Benjamin Netanyahu has been the greatest source of proof for the South African case. Ministers have clearly spelled out what they want to do with the people of Gaza. They are plainly saying that they want to transfer them to Sinai. It has also been reported this week that Israel has been holding secret talks with the Democratic Republic of the Congo with the aim of it taking in the expelled Gazans. In the meantime, Israel is continuing its campaign to obliterate Gaza and render it unlivable. The case is clear and, once an order is issued, the convention’s 153 state parties have to comply. The International Court of Justice is the highest legal authority in the UN.

The racist Israeli government of Benjamin Netanyahu has been the greatest source of proof for the South African case

Dr. Dania Koleilat Khatib

What makes the case even stronger is the fact that it is South Africa that presented it. Some have raised eyebrows as to why it was not an Arab or a Muslim state that filed the case with the International Court of Justice. But it is an advantage that it is a non-Arab and non-Muslim country. The reason Palestine is gaining so much sympathy across the world is because the issue is not viewed as a Muslim issue or an Arab issue. The issue of Palestine is viewed as one of social justice and human dignity. World-renowned Hollywood director Oliver Stone described it as an issue related to justice, peace, balance and basic human decency.

South Africa is the best defender of the Palestinians as its people suffered from apartheid inflicted by a colonial regime that subjugated the natives. Today, the same situation exists in Palestine. In the West Bank, settlers live under Israeli law while Palestinians are under military rule. This dual legal system, in which people are differentiated and separated based on their race, is the straightforward definition of apartheid.

In fact, several scholars and politicians have spoken about the “Bantustanization” of the West Bank, drawing a parallel with apartheid-era South Africa, where the Indigenous population had to live in overpopulated enclaves. Hence, when South Africa, which is a majority-Christian nation, presents the case to the court, it acts as a nation that has suffered from injustice and pledged “never again” to apartheid.

If, on the contrary, a Muslim-majority country had presented the case, it would have become politicized. Racist politicians would have interpreted it as a trial by Muslims to impose their will on the world. However, now that it has been presented by South Africa, bigots will have less to say. Hateful politicians like former US Ambassador to the UN Nikki Haley, who has bluntly called for Palestinians to be evicted and sent to countries that are “pro-Hamas,” will think twice before making statements that could be considered to be a call for genocide by the International Court of Justice.

It will be interesting to see the position of the US, which is supposedly the guardian of the current world order. Will it defy the highest legal authority in the UN to shield Israel from genocide accusations? Can it still allow Israel to act with impunity? According to Boyle, under Article 3 Paragraph E of the Genocide Convention, the US could be implicated for “aiding and abetting” genocide. This will be a test of the US to see whether it will comply with international law or if it will subjugate it to serve its ally. France has already announced that it will comply with any order that comes from the court.

It would also be interesting to see how the American public reacted if their country were accused of complicity in genocide. The calls for a ceasefire would probably increase. The pressure on the Biden administration will also increase, as we are now in an election year. Hopefully the US will be compelled to coerce Israel into a ceasefire if the latter tries to defy any order of the court. So, all the indicators are on the Palestinian side. All we have to do now is wait and see.

• Dr. Dania Koleilat Khatib is a specialist in US-Arab relations with a focus on lobbying. She is co-founder of the Research Center for Cooperation and Peace Building, a Lebanese nongovernmental organization focused on Track II.