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The politics of South Africa’s accusation against Israel in the International Court


Practical Politics 

Since the beginning of October and the latest Middle East conflict, it has been the official position of this column to not engage the topic. Our position here was (and is) that nothing Black folk would say in support of one side or the other would matter. It was other folks’ business, so we should just stay out of it.  This article indicates no change in that position.

However, with South Africa officially lodging a major legal case against Israel in the World Court last week, the issue has grown in importance and needs to be at least reported on.

As created by the United Nations as official bodies to investigate and sometimes prosecute instances of nation-to-nation conflict, there is the International Court of Justice, (ICJ) and the International Court of Criminal Justice (ICCJ), the former operating in the Hague, The Netherlands, and the other primarily operating  in Geneva, Switzerland. In the ICJ, countries can sue one another for violations of international law.

Some legal scholars argue that that is the wrong court for the action. The ICJ can only punish countries, not individual leaders, by issuing reputational hits against them, and by ordering a cessation of a country’s actions (the U.N., which created the state of Israel, could order Israel to cease and desist immediately, but may have no effective power to back up such an order.) The ICCJ, on the other hand, could order the arrest and prosecution of Israel’s leaders (or even Hamas’ leaders as non-state actors) for promulgating genocide through a system of apartheid, which is a legally defined criminal act.

Right after the beginning of the new year, South Africa filed an 84-page brief before the ICJ in the Hague making the accusation that Israel’s war with Hamas, in spite of claims to the contrary, amounted to attempted genocide against Palestinians in Gaza. To say this is a very serious action is to state the obvious. If found guilty, Israel’s leaders will certainly not be arrested, but Israel’s international standing will be dealt a lethal blow from which it may never recover. Imagine Israel, the country created in the aftermath of Nazism, being found guilty of doing to others what was done to millions of Jews.

Several legal scholars doubt that the South African effort will be successful because of the severe difficulty involved in such a case. They argue that the burden of proof in this type of case (for genocide) is so much higher than for other kinds of international crimes because genocide is a crime against a whole group, rather than against individual civilians, and it requires proof of intent to commit hostile acts for the express purpose of exterminating an entire group, rather than a crime that simply requires evidence of a state’s involvement in the acts themselves. But if any nation is a historical expert in watching and being victim of genocidal actions, South Africa’s experience with apartheid certainly qualifies it.

Along with trying to keep up with the travails of Trump in the coming days, this ICCJ case will be very interesting to follow. This column will report any advances and/or conclusions one way or the other.

Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.

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