ISRAEL, PALESTINE AND THE WAR ON GAZA
NDP and Green Party call for Canada to support ICJ rulings in genocide case against Israel
On 9 January both the NDP and the Green Party took strong and principled decisions in favour of the primacy of international law.
In a powerful letter to Minister of Foreign Affairs Mélanie Joly, NDP foreign affairs critic Heather McPherson writes:
This is a crucial time for Canada to uphold the principles of international justice….
I am asking you today not to intervene in opposition to this case, and to support the decision of the Court.
Among the telling points made in the letter, McPherson cites specific examples by Canada, the UK, and 5 other countries in their joint intervention in support of The Gambia’s ICJ case of genocide in Myanmar which are present, to a much greater extent, in South Africa’s application.
For its part, the Green Party concluded its statement with:
It is now imperative that Canada commits to respecting and adhering to the upcoming ICJ decision and refrains from any attempt to interfere with the course of justice or influence the decision.
Legal experts accuse UK of hypocrisy in not backing genocide claim in Gaza before ICJ
It is not only in Canada that critics are drawing attention to the blatant contradiction between the strong position of support by Canada, Denmark, France, Germany, the Netherlands, and the UK for The Gambia’s genocide case against Myanmar and the failure of these countries to now support South Africa’s much stronger case against Israel.
The UK is facing accusations of double standards after formally submitting legal arguments to the international court of justice in The Hague six weeks ago to support claims that Myanmar committed genocide against the Rohingya ethnic group through its mass mistreatment of children and systematically depriving people of their homes and food.
Wintour then points out that, in the joint submission, the five Declarants advanced a “wide definition” of acts of genocide and supported a lower threshold for damage inflicted on children.
On the crucial issue of intent, the Declarants submit that
precisely because direct evidence of genocidal intent will often be rare, it is crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible.
In short, the Declarants argue that the court’s test should not solely be explicit statements or numbers killed, but reasonable inference drawn from a pattern of conduct and factual evidence.
Wintour then cites international law expert Tayab Ali:
It would be wholly disingenuous if the UK, six weeks after advancing such a significant and broad definition of genocide in the case of Myanmar, now adopts a narrow one in the case of Israel.
Guardian Editorial Board: South Africa case needs to be heard
Israeli actions, not the legal process, are destroying the standing of Israel and its western allies – Guardian Editorial Board
In an editorial entitled The Guardian view on Israel and allegations of genocide: a case that needs to be heard (11 January 2024), the Board underscores the importance of the case:
The urgency of this case is obvious. But its broader importance is to reinforce that the genocide convention is a matter for everyone. States have a responsibility not just to refrain from genocide, but to prevent it.
Concluding that neither Israel nor the US are “willing to shift course”, the Board asserts:
As for allegations that the legal process is fomenting anti-Semitism, the Editorial Board concludes:
But whatever the judges decide, the civilian death toll and human suffering in Gaza and the words of Israeli ministers are unconscionable. That, and not this legal process, is ultimately what is destroying the standing of Israel and its western allies.
Avi Lewis and Canada’s moral obligation
Canada: support South Africa at the International Court of Justice. Stop the genocide now. – Avi Lewis
For those with a subscription to the Globe and Mail, we commend to readers the extremely powerful commentary by Avi Lewis entitled Canada has a moral obligation to support South Africa’s genocide case against Israel (11 January 2024).
He specifically takes issue with an earlier Globe and Mail opinion piece by former Supreme Court Justice Rosalie Abella where she wrote:
It is a legal absurdity to suggest that a country that is defending itself from genocide is thereby guilty of genocide.
Avi Lewis responds:
That sentiment may resonate with many Jews in Canada, but some of us find it distressingly detached from reality.
He goes on to describe that reality — one where it is Israel, not Hamas, that has:
- Killed more than 100 Palestinian children every single day for almost 100 days.
- Levelled entire Gazan neighbourhoods, flattening them to dust.
- Choked the supply of food and water into Gaza to induce mass starvation.
- Destroyed 33 per cent of all the buildings in Gaza.
Avi Lewis writes that it is “deeply upsetting” to read South Africa’s “utterly convincing” case and then adds:
A legal absurdity to call this genocide? It’s a moral absurdity to call it anything else.
Lewis next quotes from a letter published in Haaretz in September 1967, 100 days into the Israeli occupation of Palestinian territory that is now 56 years long:
Our right to defend ourselves against annihilation does not grant us the right to oppress others. Conquest brings in its wake foreign rule. Foreign rule brings in its wake resistance. Resistance brings in its wake oppression. Oppression brings in its wake terrorism and counterterrorism. The victims of terrorism are usually innocent people. Holding onto the territories will turn us into a nation of murderers and murder victims.
He ends his comment with this call to action:
Today, nearly 100 days into Israel’s belligerent fury in Gaza, many Jewish Canadians are rising up to say to the government of Canada: support South Africa at the International Court of Justice. Stop the genocide now.
UN human rights experts welcome South Africa’s case
See also the press release from the Office of the UN High Commissioner of Human Rights (OHCHR) from 33 current UN human rights experts strongly welcoming the South Africa case:
We commend South Africa for bringing this case to the ICJ at a time when the rights of Palestinians in Gaza are being violated with impunity. We call on all States to cooperate with the Court as it interprets the Genocide Convention and to respect the role of the ICJ as an independent court of law.
Canada supports the ICJ but not the “premise” of the South African case
As we reported in last week’s post, upon South Africa’s filing of its genocide case against Israel, Prime Minister Trudeau had expressed strong support for the role of the International Court of Justice (ICJ) but had declined at the time to indicate Canada’s stance with respect to the case itself.
On Friday, 12 January 2024, the situation was somewhat clarified.
Prime Minister Trudeau, at a press conference in Guelph, Ontario, first reiterated Canada’s support for international law and the “key part” that the ICJ plays in ensuring it is “respected and enforced.”
He then went on to say:
Our wholehearted support of the ICJ and its processes does not mean we support the premise of the case brought forward by South Africa.
A formal statement soon followed from Global Affairs along the same lines — effusive praise for the Court but potential disagreement with the premise of South Africa’s case. Notably, however, the statement goes further and reiterates Canada’s support for “urgent international efforts towards a sustainable ceasefire.”
Canada’s ambiguous statement on South Africa’s genocide claim against Israel is deeply disappointing but certainly falls far short of the full-throated defence of Israel demanded by the Conservative Party and the powerful Israeli lobby.
The pernicious impact of “special treatment”
It is useful at this point to quote from a recent BBC Today interview with the Saudi Ambassador to the UK, Prince Khalid bin Bandar Al Saudi.
After asserting that Israel should be treated no differently than any other country, he continued:
if anyone else had done what the Israelis are doing today you would have seen them cut off from the rest of the world, you would have seen sanctions …. the blind spot towards Israel is a real problem because it provides a blind spot to the peace.
Provisional measures sought by South Africa
In last week’s blog post we discussed the provisional (interim) measures sought by South Africa “as a matter of extreme urgency, pending the Court’s determination of this case on its merits”. We wrote:
South Africa has asked the ICJ for “provisional measures” — an order, binding on Israel under the treaty — to “immediately suspend its military operations in and against Gaza” as well as all actions relating to the expulsion and forced displacement of Gazans and to the deprivation of their essentials of life.
For the full text of South Africa’s application for provisional measures and Israel’s response, click HERE.
No definitive finding of genocide is needed for provisional measures to be granted.
Last week we also discussed the lower burden of proof required for the granting of provisional measures than for a final determination of the case. A Just Security blog post explains further:
In its decision on provisional measures, the Court will determine whether it has prima facia jurisdiction, including whether South Africa has based its application on treaty rights and obligations that are “plausible,” and whether there is a sufficient link between the measures requested by South Africa and the rights whose protection is sought.
It will also consider whether there is a risk of irreparable harm and a situation of urgency, two criteria likely to be easily met in these circumstances.
This means in turn that
at this initial stage… it is not necessary for the Court to make a finding as to whether Israel’s conduct in Gaza amounts to genocide.
In the succinct language of the Guardian Editorial Board in their ringing statement in support of the case, discussed earlier in this post:
A decision on which of the provisional measures requested by South Africa should be taken requires only that they find its case plausible, not proven, or that they believe there is a risk of genocide occurring.
The ICJ and Israel’s claim of self-defence
A recent post of EJIL: Talk! (the blog of the European Journal of International Law) addresses the question:
Does the ICJ have the legal authority to pronounce itself on the right of self-defence?
Its author, Marc Weller, a professor of international law at the University of Cambridge, begins by citing a recent post by American lawyer Jesse Lempel, who alarmingly asserts:
the International Court of Justice, the principal judicial organ of the United Nations, cannot ‘order provisional measures that impair a state’s right to self-defence’…. an ‘inherent’ attribute of states according to Article 51 of the Charter.
Weller responds by contrasting the “neo-classical right of the state to preserve itself from external harm” and the “modern view”, which focuses on the interests of the international system as a whole, including the interest in maintaining a credible prohibition on the use of force.
This in turn requires the imposition of limits to claims to self-defence put forward by states.
In a brief, brilliant summation of the essential understandings that underpin the UN Charter’s prohibition on the use of force, he writes:
The League of Nations Covenant recognized in Article 11 that matters of war and peace are ‘a matter of concern of the whole League,’ rendering a failure to comply with the Covenant ‘an act of war against all other members of the League.’ [Article 16].
Hence, the system as a whole took on an identity of its own.
Preserving its key rules would preserve the territorial integrity and independence of member states while also helping to preserve the system as such.
Weller then reviews the long history of the ICJ addressing issues concerning the use of force, writing:
Starting with the Nicaragua litigation as far back as the 1980s, the ICJ has addressed a whole series of contentious cases involving the use of force…. As self-defence is the principal justification for the use of force available to states, virtually all of these [cases] turned on arguments of self-defence.
Right of self-defence cannot prevent an order for provisional measures
Citing numerous past instances of the ICJ adopting interim measures of protection where the use of force and claims to self-defence are concerned, Weller asserts:
If the [Court] has the authority to review issues concerning the use of force, and if it can pronounce itself on self-defence, then it is not easy to see how a bar to adopting provisional measures can be constructed in those instances.
In Weller’s view:
Israel cannot avoid scrutiny of its use of force and associated practices, and possible interim measures of protection, simply by invoking self-defence.
The use of force by one state, whatever the justification offered, is a matter of concern for the organized international community as a whole. Cases of this nature can be addressed by the competent international institutions, including the ICJ, through all the legal instruments at their disposal.
ICJ may order effective provisional measures without addressing self-defence issue at this stage
But the ICJ could order Israel to limit/ modify military ops to prevent commission of constituent acts under the convention, incl. unlawful killing, serious bodily & mental harm, imposition of destructive conditions of life etc. Here lies real scope for judicial wisdom…” – Mark Lattimer
Readers may recall from an earlier discussion that it is not just the scope of Israel’s right of self-defence that is at issue in this case but also whether, in the specific circumstances of its occupation of the Palestinian territories as well as the fact that Hamas is not a state, it can assert the right at all. And if it cannot, does that make any difference?
While it is manifestly absurd to argue that the ICJ could not order a state to cease genocidal operations because they were part of what began as a legitimate act of self-defence, the Court may exercise more caution when it comes to provisional measures before it has ruled definitively on the issue of genocide, given the many complex issues surrounding Israel’s alleged right of self-defence in this case.
It may choose instead to craft provisional measures that stop short of ordering Israel to suspend all operations in Gaza, but that nonetheless, if complied with, would end Israel’s multiple, ongoing violations of international law and actions that could constitute genocide.
Germany to intervene on behalf of Israel when main case of genocide is heard
On 13 January 2024 German government spokesperson Steffen Hebestreit announced that Israel is acting in self-defence and Germany will intervene on its behalf when the main case of genocide is heard in the Hague.
RI President Peggy Mason comments:
Acting in self-defence is a legal justification for the use of force. It is an entirely separate question as to whether the actions taken in support of the alleged right of self-defence are legal under the rules governing the conduct of war. This essential difference is what supporters of Israel are shamelessly trying to obfuscate.
We commend both the NDP and the Green Party for their courage in forthrightly supporting the primacy of international law and the human rights of all peoples in the face of a determined lobby to suppress critics of Israel and despite the shockingly biased mainstream media coverage which has largely ignored these important statements.
So my signature in support of this South African appeal to the ICJ is not against Israel. It’s for Israel and against the Israeli government and its policies. – Ofer Cassif, Jewish lawmaker
To read about a strong voice of resistance from within Israel, see “They Want to Silence Us”: Knesset Member Ofer Cassif Faces Expulsion for Backing South Africa Genocide Case (democracynow.org, 12 January 2024).
There must be no ambiguity in Canada’s support for the rulings of the ICJ
Canada’s strong statement of support for the primacy of international law and for the integral role that the UN’s top court plays in ensuring it is respected and enforced leaves no wiggle room when it comes to supporting the rulings of the ICJ.
In the words of the 33 UN human rights experts referenced earlier:
ICJ decisions are final, binding, and not subject to appeal. Adherence to any order the Court may make by the parties involved is imperative for protecting the rights of Palestinians and reinforcing the primacy of international law.
In other words, it will not be enough for Canada to abstain from criticizing rulings of the ICJ in this case. Canada must demonstrate fulsome positive support for its rulings by expressly calling on the parties to fully comply with them.
We call on the Government of Canada, once a ruling on provisional measures is made by the ICJ, to forthrightly call on Israel and South Africa to fully comply with them.
We also reiterate past calls on the Government of Canada for a cessation of arms exports to Israel as well as tangible steps to help bring about an immediate humanitarian ceasefire.
Arms embargo parliamentary petition E-4745
THIS PETITION NOW HAS 46,492 SIGNATURES AS OF 2:11 PM EST ON 13 JANUARY 2024.
PLEASE CLICK HERE TO SIGN THE PETITION before it closes for signature at 4:25 pm EST on 19 February 2024.
WE ALL HAVE A ROLE TO PLAY IN SECURING A GAZA CEASEFIRE
WE MUST CONTINUE TO PRESS OUR GOVERNMENT TO TAKE CONCRETE STEPS IN SUPPORT OF AN IMMEDIATE CEASEFIRE, FULL HUMANITARIAN ACCESS TO GAZA AND FULL SUPPORT FOR ICJ RULINGS IN THE CASE OF GENOCIDE AGAINST ISRAEL.
Prime Minister Justin Trudeau: < firstname.lastname@example.org >
Foreign Minister Mélanie Joly: < email@example.com >
Leader of the NDP Jagmeet Singh: < Jagmeet.Singh@parl.gc.ca >
Leader of the Conservative Party Pierre Poilievre: < firstname.lastname@example.org >
Leader of the Bloc Quebecois Yves-François Blanchet: < Yves-Francois.Blanchet@parl.gc.ca>
Green Party Critic Elizabeth May: < Elizabeth.May@parl.gc.ca >
And find your local Member of Parliament HERE.
AND DON’T FORGET THE POWER OF LETTERS TO THE EDITOR
As the war drags on, the Russians will slowly gain advantages and reduce any leverage Kyiv may have in peace talks. – Anatol Lieven
For yet another compelling set of arguments as to why Ukraine, with the full support of its Western allies, must open peace talks with Russia while it still has sufficient leverage for a meaningful deal, albeit short of a “complete victory” that is no longer achievable (if it ever was), see Ukraine facing increasingly unfavourable odds (Anatol Lieven, responsiblestatecraft.org, 4 January 2024).
Photo credit: Wikimedia images, UNICEF UK, Gaza destruction
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