COMMENT: SA case against Israel: Expect US sanctions!

We can never forget the day the US government imposed sanctions on International Criminal Court (ICC) prosecutor Fatou Bensouda and another senior prosecution official, Phakiso Mochochoko.

It was September 2, 2020.

Bensouda’s crime: Prosecuting US servicemen over alleged detainee abuse in Afghanistan.

Then US Secretary of State Michael Pompeo said pompously: “In theory, the ICC holds perpetrators of the most egregious atrocities accountable for their crimes, provides justice to the victims and deters future abuses. In practice, however, the court has been ineffective, unaccountable and indeed, outright dangerous.”

The actions of the US were unsurprising and not unexpected. The ICC is only good for persecuting America’s perceived enemies.

The US had no problems with last year’s warrant of arrest for the President of Russia, Vladimir Vladimirovich Putin, or the 2009 warrant of arrest for former Sudanese leader Omar al-Bashir.

There are no prizes for guessing who will have a problem with another court in The Hague that is dealing with genocide supported by the US. South Africa has initiated a case against Israel at the International Court of Justice (ICJ), accusing Israel of genocide against Palestinians in Gaza.

The ICJ is the United Nations’ top court, established after World War Two, to settle disputes between states and give advisory opinions on legal matters.

The court will consider whether Israel is committing genocide against the Palestinians in Gaza. South Africa alleges that Israel’s response to Hamas attacks breaches the 1948 Genocide Convention. The case highlights Israeli public rhetoric, including comments from Prime Minister Benjamin Netanyahu, as evidence of “genocidal intent”.

It is important to note that the case is not a criminal trial and the ICJ will deliver an opinion on the genocide allegation.

Juliette McIntyre, a lecturer in law at the University of South Australia, told The New Arab that at this stage, South Africa “does not need to prove that Israel is committing genocide. They simply need to establish that there is a plausible risk of genocide occurring”.

The Gaza Strip has experienced a shortage of resources since Hamas attacked Israel on October 7 killing 1 200 people and kidnapped some 200 others. Since Israel launched its military campaign against Hamas in response, more than 23 000 people, mainly women and children, have been killed in Gaza, according to the Hamas-run health ministry.

Evidence submitted by South Africa claims “acts and omissions” by Israel “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group”.

This refers both to what Israel is actively doing, such as carrying out air strikes and what it is allegedly failing to do, such as, according to South Africa, preventing harm to civilians.

This is only the second time that a State has tried to litigate the perceived atrocities of another State under the Genocide Convention, following the precedent set by the Gambia, which took Myanmar to the ICJ in 2019 for its treatment of the Rohingya. In that case, the court imposed provisional measures on Myanmar in 2021 and rejected its objections to the court’s jurisdiction and Gambia’s legal standing in 2022. The final ruling on the merits of the case is still awaited.

The current case before the ICJ is uncomfortable for America.

Dr Omer Bartov, a professor of Holocaust and Genocide Studies at Brown University, Rhode Island, told TNA that: “If the ICJ decides on an injunction for Israel to cease actions in Gaza — deliberations on the actual merit of the case may take years — this would go to the UN Security Council, which has the authority to impose the injunction on Israel or penalise it for refusing to abide by it. “In this case, if the US vetoes such an action, it would be in an even more uncomfortable and exposed position than before, in view of the severity of the accusation.” We will be patiently waiting for the ICJ’s decision and Israel’s next move. And what the US will do next following this direct challenge to her hegemony. We smell sanctions!