THE legal arguments made by South Africa before the International Court of Justice (ICJ) for an order directing Israel to take measures to prevent the genocide being carried out by its forces against the Palestinians make it abundantly clear that the case for genocide has been made beyond any shadow of reasonable doubt writes Mametlwe Sebei
The Israeli regime is guilty as charged. Not that we needed the lawyers that tell us what we see with our eyes in real time, but South Africa’s case rests on a granite foundation of facts and principles of international humanitarian law.
The case for a plausible cause for genocide was meticulously presented in papers and competently argued by the agents. Israel failed in rebuttal. On the other side, Israel has failed to rebut any of these facts, legal arguments, and claims.
That is primarily because they are in an impossible situation. The logic of the whole Zionist settler colonialism and the extreme right-wing populism of the current regime means that the whole political establishment, military, and bureaucratic apparatus of the state has incriminated itself at one point or the other.
Escalation of Jewish settlements, ethnic cleansing as well as heightened violence and repression of the Palestinians to achieve these goals, is the political basis of the coalescing of extremely rightwing, fascist pro-settler parties currently constituting the right-wing coalition government of Benjamin Netanyahu.
Bare denials, evasions, exaggerations, victim bashing and blatant lies are the only way anyone can characterise the feeble attempts of Israel at rebutting the case of South Africa.
Despite this and other desperate attempts at cover-up, mainly for the sake of their ‘democratic Western allies’ that are enabling this genocide, the Israeli regime cannot stop the genocidal rhetoric and self-incrimination in its ranks.
This is essential for the racist colonial discourse and public opinion they built over years and whipped into a frenzy, in the aftermath of the Hamas attack on October 7. The fact that the only most clearest statement contradicting this rhetoric emanated from the prime minister Netanyahu, after South Africa had already lodged its application is telling.
Further compounding the problems for Israel is the advent of alternative mainstream and social media, which has laid bare all these genocidal acts Israelis were accustomed to committing in the comfort of their seclusive colonial bubble. Consistent livestreaming of the sheer levels of destruction of Palestinian lives and property, the brutality of the Israeli military and settlers, and the barbarism of many of the right-wing Zionists by Al Jazeera and other media outlets not beholden to Western Imperialism; as well as translations into widely spoken languages in social media of Israeli politicians and officials means that Israelis could not cover up the ongoing genocide as they did other acts of aggression before.
The United States implicitly admits the main elements of genocide. That is the reason even the US has to incriminate Israel despite its feigning contempt for South Africa’s allegations of genocide. If there was no intent to ethnically cleanse Gaza of Palestinians, why would the US issue statements rejecting any plans to evict Palestinians?
The intent to ethnically cleanse Gaza, which the US denounces and therefore admits its presence, alone and independent of all other facts, meets the thresholds for the case of genocide SA made before ICJ.
The mass killings, and destruction of houses, hospitals, schools, churches, and mosques, deprivation of water, food, electricity, internet, and all other facts SA placed before the ICJ are only a manifestation of this genocidal intent.
They are not essential for an interim order to prevent genocide that SA is asking for. The case for genocide has therefore been made by Israelis themselves more than anybody else.
The verdict is out. It is damning, unequivocal in law: the state of Israel is guilty as charged. This is recognised by all law-abiding and honest citizens of the world, not only faithful scholars of law.
Class and geopolitical considerations will decide, not the law. The only thing outstanding is the opinion of the ICJ itself. This opinion will not change much, whichever way it goes, except for the potential to disabuse the masses of the international working class and progressive public opinion of judicial cretinism and illusions in the institutions of the global justice system.
The ICJ and the International Criminal Court (ICC) have demonstrated, again and again, that they are no more than a judicial arm of Western imperialism. In their whole history, spanning decades now, none of these courts have ever found guilty anyone of any international crime other than those deemed so according to the opinion and interests of Western Imperialism.
In the most recent period, the invasion of Iraq stands as a stark reminder of what these courts are really about or to be more precise, what they are not about: dispensation of justice without fear and favour.
Despite the overwhelming case, the judgment of the court can still go either way. One thing is clear: it is not the law that is going to decide the merits of the case but class and imperialist politics.
The judges are appointed based on imperialist considerations of their governments, and the decision of the court will require the UN Security Council made up of government representatives to enforce it anyway.
However, this is not the cause of despair. In this situation, it will not only be the brief from Western imperialism that judges will have to consider. The hot breath of mass indignation and opposition to the genocide, sharply expressed in the breath-taking scale of the international mass mobilisations for Palestine will also have to be factored by the court if it is to retain any modicum of credibility in the global public opinion. International public opinion, as expressed, in the widespread denunciations of the Israeli regime and countless mass demonstrations across the globe including in the Western countries supporting Israel has shifted the balance of power. This public opinion and scrutiny will also be weighing heavily on the minds of the ICJ as they ponder the implications of their decision for the credibility of the global judicial architecture and its so-called rules-based international order.
*Mametlwe Sebei is a lecturer in the Dept of Jurisprudence at the University of South Africa
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