The Ceasefire Resolution at the UN Security Council: Why the U.S. Position is both Wrong and Harmful

Posted on April 3, 2024 by Mark Kersten

The following is a guest post by Thomas Obel Hansen. Thomas is the Maria Zambrano 2023-24 Distinguished Researcher with the Universidad Carlos III de Madrid (Spain) and a Senior Lecturer in Law with Ulster University Law School/ Transitional Justice Institute (UK).

(Photo: Flickr/DSmith)

For almost six months, the United Nations Security Council (UNSC) had been unable to reach an agreement to take meaningful action with regard to the Gaza War. But on 25 March, the UNSC finally adopted Resolution 2728 (2024). The operative paragraphs of the resolution states that the UNSC: 

1. Demands an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire, and also demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs, and further demands that the parties comply with their obligations under international law in relation to all persons they detain.

2. Emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip and reiterates its demand for the lifting of all barriers to the provision of humanitarian assistance at scale, in line with international humanitarian law as well as resolutions 2712 (2023) and 2720 (2023)

Resolution 2728 passed by a vote of 14 in favor to none against, with the U.S. abstaining. 

From the moment that Resolution 2728 was adopted, a debate was triggered as to whether the resolution creates legally binding law. Hannah Birkenkötter has already offered insightful reflections on this question, concluding that the resolution is indeed legally binding since it effectively makes a ‘decision’. That UNSC resolutions which make ‘decisions’ are legally binding ought to be absolutely clear. Article 25 of the UN Charter has been interpreted by the International Court of Justice ICJ in the Namibia Advisory Opinion in 1971 to imply that any decision by the UNSC is legally binding, even if it does not explicitly use the term ‘decision’ and even if it is not adopted under Chapter VII of the UN Charter. 

What is the U.S. and other States saying?

On the same day the resolution was passed, U.S. State Department spokesperson Matthew Miller made clear the U.S. view that the resolution is “a non-binding resolution” (a point also made by U.S. representative to the UN, Linda Thomas-Greenberg in the context of the resolution’s adoption). Asked if he expected Israel would announce a ceasefire in light of the Resolution 2728, Matthew Miller responded: “I do not”. White House National Security Spokesperson John Kirby similarly stated: “it’s a nonbinding resolution. So, there’s no impact at all on Israel and Israel’s ability to continue to go after Hamas”, further emphasizing that the U.S. abstaining on its vote “does not — I repeat — does not represent a shift in our policy”.

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An alleged Nazi was invited to Parliament. But why are there Nazis and war criminals in Canada in the first place?

Posted on February 14, 2024 by Mark Kersten
Canadian Parliament in 2023 (Photo: AP)

Last fall, Canadians were rightly appalled to learn that an alleged Nazi veteran had been invited to sit in the House of Commons and received a standing ovation from MPs across the political spectrum. The story was not left behind in 2023. Reports now show that Prime Minister Justin Trudeau invited the Yaroslav Hunka to a special reception. Amid these embarrassing revelations, few have asked: why was a Nazi in Canada anyways?

The unfortunate truth is that Canada is more likely to host a Nazi in Parliament than to prosecute one.

Canada is home to dozens, even hundreds of perpetrators of international crimes – war crimes, crimes against humanity and genocide. It refuses to investigate and prosecute suspected perpetrators in its own courts, despite having the powers to do so. Canadians should rightfully be ashamed that their Members of Parliament – from all parties – stood and applauded a Nazi. And they should also demand that any war criminal who travels to Canada will be prosecuted. 

Canada has its own dark history with Nazism, one that only gets scarce attention. Former Liberal Prime Minister William Lyon Mackenzie King admired the Nazis. He groveled for Adolf Hitler’s attention, sought to appease the Nazi leader, and befriended numerous senior Nazi officials. In a forthcoming academic article on the subject, I recount how he did so – and how he later travelled to Nuremberg to watch some of his former Nazi friends as they were prosecuted for war crimes and other atrocities in 1946.

After the end of WWII, Canada became a refuge for war criminals. It sadly remains so to this day. In 1985, the Commission of Inquiry on War Criminals in Canada, also known as the Deschênes Commission, studied how Nazis had gained safe haven in the country following the end of WWII. Some alleged Nazis were eventually prosecuted by Canadian authorities, but numerous high-profile prosecutions failed. 

In 1994, the Supreme Court of Canada upheld the acquittal of Imre Finta, a Hungarian police officer who had been charged with, among other things, assisting the Nazis in the deportation of Jews from Hungary. In the early 2010s, Canada also prosecuted individuals involved in the 1994 Rwandan Genocide. One led to a conviction, another to an acquittal. The cost of these trials led to a reluctance in Ottawa to investigate war crimes, crimes against humanity and genocide cases. But perpetrators of these atrocities still call Canada home.

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Why it is wrong to say Israel could never commit Genocide: Victims of Atrocities can and do become Perpetrators of Atrocities

Posted on February 2, 2024 by Mark Kersten
(Photo: BBC / Getty Images)

Israel is facing charges of genocide at the International Court of Justice (ICJ). This was not inevitable, and reasonable people can disagree over whether the contemporary legal threshold of genocide has been met. But the suggestion that a state created by victims of genocide could never be implicated or responsible for genocide, as made by some observers, does not face up to scrutiny or history. It is simply wrong. No one has a monopoly on being a victim of international crimes like genocide or war crimes. Recent history is full of examples of victims of mass atrocities subsequently becoming perpetrators. One antidote to that awful trajectory is justice for international crimes. As the late Nuremberg prosecutor Benjamin Ferencz’s would say, “law, not war” can help end cycles of violence and atrocity.  

I have seen the victim-perpetrator dynamic first-hand. In northern Uganda, where I conducted research on war crimes prosecutions and their impact on peace processes, the issue was ever-present. Between the mid-1990s and the early 2000s, thousands of children were kidnapped from their villages to fight for a notoriously brutal rebel group, the Lord’s Resistance Army (LRA), led by Joseph Kony, he of “Kony 2012” fame. These children were often forced into committing awful acts of violence, sometimes against their own families and communities.

Some of those victim-perpetrators were later prosecuted for committing the same international crimes that they were victims of. The International Criminal Court (ICC), for example, prosecuted Dominic Ongwen, a former child soldier-turned-LRA commander. Among the charges he faced was the conscription of child soldiers, the same war crime that was committed against him as a child. In coverage of Ongwen’s story, some authors asked: what happens when a victim becomes a perpetrator? In 2021, Ongwen was convicted and sentenced to twenty-five years in prison. 

There have also been reports of those victimized by genocide becoming perpetrators of genocide. A notable example is the 1994 Rwandan Genocide in which some 800,000 ethnic Tutsis were massacred in just three months by Hutu militias. In 2010, the United Nations released a report detailing what some concluded was a counter-genocide against Hutus by Tutsi forces in what is now the Democratic Republic of Congo. 

Looking further into history as well as into more recent events, while the civilian toll of World War II was extremely high in the Soviet Union – with an estimated 19 million civilians killed – today Russia stands accused of genocide in Ukraine at the ICJ. Russia’s President, Vladimir Putin, is the target of an ICC arrest warrant, and Russian forces have allegedly committed tens of thousands of war crimes since February 2022.

Those familiar with Palestine will also know the unfortunate victim-becomes-perpetrator pattern all too well. It would be hard to find anyone in Gaza or the West Bank who was not a victim of a human rights abuse or atrocity. There are now over 100 unlawful Israeli settlements in the West Bank. The illegal blockade on Gaza has been in place since 2009. Thousands of Palestinian young men are in what Israel calls “administration detention”, imprisoned without charge for months, even years. Since October 7 over 10,000 children have been killed in Gaza. On average ten children a day lose either one leg or both. Over 80% of Gaza’s population is facing famine and even if enough aid entered the country tomorrow, it still won’t fully stave off starvation.

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Rights without Remedies: The Failure of the International Court of Justice to Order a Ceasefire to stop alleged Genocide in Gaza

Posted on February 1, 2024 by Mark Kersten

Kerstin Bree Carlson joins JiC for this guest-post on the ICJ’s interim decision in the South Africa case. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.

(Photo: Patrick Post / AP)

Much has already been written about the historic interim ruling in South Africa v. Israel by the International Court of Justice (ICJ). All sides have claimed victory: South Africa, because their erga omnes claim under the Genocide Convention was not thrown out; Palestine, because the ICJ has recognized the devastating conditions in Gaza; Israel, because it was not ordered to cease its war effort. All sides have also noted disappointment: South Africa and Palestine because the ICJ declined to order a ceasefire; Israel, because the ICJ found that its war efforts could plausibly constitute genocide.

The one group that is especially excited by the ICJ’s order is international lawyers; many have praised the Court’s strong rhetoric and near unanimous decision. And the one group that is  largely disillusioned are Gazans, who had hoped the ICJ might order immediate injunctive relief.

This post argues that those Gazans disappointed in the interim decision have it right because the ICJ’s order purports to recognize a right but declines to order a remedy. Here remedy refers to the injunctive relief South Africa requested in the form of a ceasefire. The disconnect between recognized right and absence of meaningful injunctive relief – remedy – makes the ICJ’s ruling conceptually problematic. This deprives the ruling of the rhetorical power that has been claimed for it.

The foundational idea of “no right without a remedy” is that if you bring a claim to a court (asserting a right) and the court doesn’t have a concrete way to address your claim (providing a remedy), then that right does not in fact exist. The conclusion derives from U.S. constitutional lore, specifically the 1803 Marbury v. Madison case that established the powerful governance function for the U.S. Supreme Court. 

Consider the rights asserted by South Africa and the actions taken by the ICJ. In December 2023 South Africa filed an “Application Instituting Proceedings” before the ICJ which characterized Israel’s military campaign in Gaza as genocidal. It requested a series of injunctive provisional measures, centrally a ceasefire. 

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International Law and the Stories We Tell: Reflections on International Law(yers), Narratives and the Situation in Israel-Palestine, Part 4

Posted on January 31, 2024 by Mark Kersten

Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. Click here for part one, here for part two, and here for part three.

(Photo: LA Times)

Part Four – Disruption and Transformation

Over twenty years ago, Hilary Charlesworth famously characterised international law as a ‘discipline of crisis’, cautioning that a crisis-focused lens skews the discipline towards becoming ‘a source of justification for the status quo’. Reflecting on this trend, Dianne Otto more recently observed how crisis talk tends to be accompanied by certain ‘technologies of crisis governance’, including a heightened tolerance for executive law-making, the adoption of increasingly securitised and militarised responses to societal problems, the shutting down of democratic debate in the name of necessity, and recourse to quick-fix measures that ignore wider contexts of causation. 

Are such repressive technologies of governance inevitable in response to crisis situations? Striving to turn the opportunitiesafforded by moments of crisis towards more emancipatory outcomes, Otto argues for a ‘crisis of discipline’ amongst international lawyers, entailing ‘a radical rebellion against the cultural order of the discipline of international law, which has proved to be so well-suited to normalizing crisis governance and its attendant silencing of critical politics’. 

In this post, the final in my series exploring what stories international lawyers can usefully tell in response to situations of ongoing mass violence, I reflect on possibilities to construct international legal narratives of disruption that seek to transformthe status quo in favour of more emancipatory politics. I do so by focusing on South Africa’s case against Israel before the International Court of Justice (ICJ), which alleges that Israel’s conduct in Gaza is in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).  South Africa’s claim is not only that Israel is committing genocide against Palestinians in Gaza, but that it is also failing to prevent it. That includes the failure to hold Israeli officials and others to account for their direct and public incitement to genocide.

While caution is undoubtedly warranted about the emancipatory potential of international law in general, and international courts in particular, this post nonetheless seeks to identify three narrative dimensions of South Africa’s application and the ICJ’s recent indication of provisional measures that at the very least have the potential to be  disruptive – whether of violence, frames, or order – whilst seeking to remain cognisant of the risks and limits that the case presents.

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International Law and the Stories We Tell: Reflections on International Law(yers), Narratives and the Situation in Israel-Palestine, Part 3

Posted on January 26, 2024 by Mark Kersten

Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. Click here for part one and here for part two.

(Photo: UNOCHA/Mohammad Lubbad)

Part Three – Framing and Structural Bias

What stories can international lawyers usefully tell when confronted with situations of ongoing mass violence? This is the question at the centre of this blog series, which is concerned with exploring the narrative dimensions of international law within the specific context of the current situation in Israel and Palestine. In my previous post, I began by considering the significance of analogies and comparisons – whether for learning lessons from the past or for setting expectations concerning the emancipatory potential and limits of particular fields of international law. 

In this post, I consider a different narrative dimension of international law – framing and structural bias. When international lawyers look at the Israel-Palestine situation, what do they see?  Reflecting on debates and disagreements amongst international lawyers in the weeks following the attacks of 7 October, Vivek Bhatt observed how the partiality of international lawyers ‘to legally selective stories in moments of crisis reveals just how closely the legal, the political, and the personal are intertwined’. Rather than an invisible college, international lawyers may be better understood as constituting a ‘divisible college’, encompassing a diversity of perspectives, traditions, and positionalities. Importantly, whenever international lawyers examine a particular crisis, it is through acts of framing that certain aspects of the situation are rendered visible and prominent, while others are marginalised and excluded.  

Borrowing from Jorge Viñuales’ work on legal inquiry, techniques of framing may be understood from two perspectives. First, the ability to set the scale from which a situation is viewed – zooming in to capture particular incidents or zooming out to capture the broader context. Second, the ability to select the criteria for highlighting certain features at a given scale – the criteria of international human rights law and international humanitarian law, for example, tend to direct attention towards different, albeit at times overlapping, dimensions of a situation. It is in this way that we may speak of a certain politics of framing that can have a significant bearing on the way a situation is understood and subsequently treated. 

Importantly, the scale and criteria relied upon within particular fields of international law and their attendant institutions, while always open to contestation, over time come to reflect a certain structural bias. This is understood as ‘the way in which patterns of fixed preference are formed and operate inside international institutions’. As Martti Koskenniemi explains, even if it is possible to support and contest many kinds of practices through the use of professional argument, legal institutions still prefer ‘de facto some outcomes or distributive choices to other outcomes or distributive choices’ and come to serve ‘typical, deeply embedded preferences’. As such, when reflecting on the emancipatory potential of particular vocabularies and institutions of international law, identifying their structural bias can help define what may be expected of them in practice and what may need to be challenged.

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International Law and the Stories We Tell: Reflections on International Law(yers), Narratives and the Situation in Israel-Palestine, Part 2

Posted on January 25, 2024 by Mark Kersten

Barrie Sander joins JiC for this second article in a four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. The first part of the series, can be found here.

(Photo: Banksy)

Part Two – Analogies and Comparisons

When confronted with situations of ongoing mass violence, what stories can international lawyers usefully tell? I want to begin reflecting on this question in the context of the situation in Israel-Palestine by considering analogies and comparisons. 

It was cultural thinker John Berger who famously remarked, ‘The past is never there waiting to be discovered, to be recognised for exactly what it is. History always constitutes the relation between a present and its past’. One way in which international lawyers may try to make sense of moments of crisis is to situate such events within the wider trajectory of the field – identifying continuities, contrasts, and ruptures with past situations, as well as silences, absences, and stories untold. Drawing on traditions such as the critical race theory (CRT) tactic of counter-storytelling, the Third World Approaches to International Law (TWAIL) tactic of counter-narration, and the feminist method of searching for silences, international lawyers often call particular analogies and comparisons in the field into question and create space for alternative understandings of the relationship between the past and the present.

Recent commentary on the situation in Israel-Palestine has been marked by frequent recourse to historical analogies and comparisons. Consider, for example, references made to the Allied bombing of Dresden during the Second World War seemingly in an effort to justify the proportionality of Israel’s current military campaign in Gaza. The analogy is not only highly selective but also flawed. The Allied bombing of civilian population centres was of questionable legality even at the time, with several commentators characterising such acts as a war crime. And whatever legal ambiguities may have remained during that period, the illegality of so-called ‘morale bombing’ campaigns became incontestable soon afterwards with the adoption of the 1949 Geneva Conventions. These campaigns also proved unsuccessful in their military aims, with one commentator noting how their brutality ‘far from shattering the enemy’s morale, may have even encouraged a spirit of resistance which prolonged the war’.

A counter-reading of the relevance of Dresden to the current crisis in Israel-Palestine would be to reflect on how the city may be viewed as a symbol of the tendency for the field of international criminal justice to be subservient to the balance of power between States beyond the courtroom. In the aftermath of the Second World War, not only was there a failure to investigate or prosecute the Allied bombing of Dresden, but charges concerning mass bombing campaigns of civilian population centres conducted by the Axis powers were also omitted from the indictments of Axis personnel in the criminal trials conducted in the aftermath of the Second World War. In this way, those trials were not only one-sided in solely prosecuting Axis personnel, but also selective in their substantive orientation in ways that sought to protect Allied interests and avoid embarrassment. 

Indeed, beyond these charging decisions, at times the very drafting of legal categories was structured to guard against allegations being directed towards the Allied powers. As Robert Cryer explained, when drafting the provision on crimes against humanity in the Nuremberg Charter at the London Conference, US representative Robert Jackson was aware that if the category was not restricted to circumstances connected to illegal war, ‘not only could colonialism (embarrassing for France and the United Kingdom), or the Gulags (still a secret in the USSR) be evaluated with reference to the law, but so could the segregationist policies in the United States’.

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International Law and the Stories We Tell: Reflections on International Law(yers), Narratives and the Situation in Israel-Palestine, Part One

Posted on January 24, 2024 by Mark Kersten

Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs.

(Photo: Getty Images)

Part One – Introduction

International law, like life, is awash with stories. Yet, what stories can we – international lawyers – usefully tell when confronted with ongoing scenes of mass violence and devastation? This is a question I’ve been struggling with recently and I confess I’m yet to arrive at a fully satisfying answer.

International law is more than a set of rules; it is a language through which people try to make sense of the world around them. Moments of crisis often trigger periods of self-reflection amongst international lawyers about whether and in what ways the language of international law matters. In the immediate aftermath of Russia’s invasion of Ukraine in 2022, the field was captivated with the question of what the crisis signalled for a so-called ‘rules-based international order’. This question has arisen once more with the devastating escalation of violence and atrocities in Israel and Palestine in recent months. For some, international law is already dead; for others, the language of international law has reached a moment of reckoning that may signal either a new dawn or its oblivion; still others, rely on images rather than words to convey their despair.

Yet, what unites these reactions is that each tells a story – a particular narrative about international law and its role in the world around us. When we encounter a crisis situation and try to understand it, what we often search for is not merely consistent and reliable facts but a compelling story. Importantly, storytelling involves more than the mere sequencing of events, but encompasses a process of narrative construction through which events are given shape and meaning. As Thomas Skouteris explains, any intellectual process of narration is always ‘positioned’, entailing ‘assumptions and choices (e.g. which facts to mention, how to tell the story, whose common knowledge to use, etc.) that are far from natural, mechanical, or neutral’. And while stories can help cement the status quo, in international law narratives can also be invoked to resist dominant structures of power. It is perhaps for this reason that storytelling can become so fraught with tension.

Within the field of international law, there has been extensive interest in the relationship between law and narrative. Understanding this relationship is important for moving beyond treating international law as a response to societal problems and to instead ‘position law itself as constructing the very problems it seeks to solve’. In this series of four posts, I reflect on different dimensions of the relationship between international law and narration in the context of the situation in Israel-Palestine.

Why do I offer these reflections? To answer this, I need to tell you a little about my own story. Although the Netherlands is where I currently call home, I’m originally from the UK where I grew up in London. I’m also Jewish and was initially drawn to the field of international law by an interest in learning more about mass atrocities, including those perpetrated against the Jewish community during the Second World War. I wanted to understand how and why these types of atrocities occur, and what avenues for justice, if any, might be possible in response. 

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Let the International Court of Justice Decide: It is Law, not History, that holds the Promise of Protecting Life in Gaza 

Posted on January 22, 2024 by Mark Kersten

The following article was written by Amanda Ghahremani and Mark Kersten and originally appeared in the Toronto Star. Amanda is an international lawyer, research fellow at the Human Rights Center, UC Berkeley, and at the Simone de Beauvoir Institute, Concordia University. Mark is the founder of Justice in Conflict, and an assistant professor of criminology and criminal justice at the University of the Fraser Valley.

The Peace Palace, home to the International Court of Justice (Photo: Mark Kersten)

South Africa has accused Israel of committing genocide in Gaza. The world is listening. As advocates of international law, we are profoundly disappointed by the recent discourse in Canadian media, which has distorted what is at stake here: not politics, nor history, but human life.

Last month, South Africa instituted proceedings at the International Court of Justice (ICJ) over allegations that Israel is committing a genocide in Gaza. The ICJ is an impartial and independent international court that adjudicates disputes between states. Canada has often been involved in cases before the court. It is currently supporting The Gambia’s case against Myanmar for genocide against the Rohingya people and has brought Syria to the ICJ over alleged breaches of the Convention Against Torture.

Some critics have suggested that South Africa is disqualified from bringing a case to the ICJ in relation to Gaza, because its previous government refused to surrender former President of Sudan, Omar al-Bashir, to the International Criminal Court (ICC) to face charges of genocide. This argument is nonsensical.

It is, of course, deplorable that South Africa refused to surrender al-Bashir to the ICC in 2015. But if there was a rule barring states that have failed to meet their obligations under international law from bringing cases to the ICJ, then no state would ever have standing before the court. We need look no further than Canada. This country has admitted that it has committed genocide against Indigenous peoples. Rightly, no one suggests that this disqualifies Canada from bringing Syria to the ICJ over state-sponsored torture. Similarly, should Israel be barred from participating in ICJ cases because it offered to sell Apartheid South Africa nuclear weapons? Of course not.

Critics have also implied that Israel’s claim of self-defense against the horrific October 7 attacks absolves it from committing genocide in Gaza. Again, this is wrong.

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Posted in Canada, Gaza, Genocide, International Court of Justice (ICJ), International Law, Israel, Palestine, South Africa | Tagged | 2 Comments

Genocide doesn’t “just happen” – Israel, Gaza and Genocide as a Process, not an Event

Posted on January 19, 2024 by Mark Kersten
“Law, not war”, a bench dedicated to the memory of former Nuremberg prosecutor Benjamin Ferencz, outside of the International Court of Justice in The Hague

Israel has now responded to South Africa’s allegations of genocide in Gaza. In its submissions at the International Court of Justice (ICJ), Israel’s lawyers relied on a combination of legal and political arguments insisting that is not committing genocide.

This is not a post about whether or not the genocide threshold has been met or will be met. The ICJ’s judges are competent and capable of coming to their own conclusions on these allegations. Instead, this article responds to four issues regarding the alleged genocide in Gaza and Israel’s response at the ICJ.

Genocides don’t just happen

Genocide is a process, not an event.

States don’t commit atrocities by mistake. Genocide requires careful cultivation. The population in whose name a genocide is committed must be conditioned, desensitized, made to feel superior, as well as cognitively and physically distanced from the suffering of those singled out for genocidal violence. 

Genocide is likewise not a failure of institutions or politics, but the result of the successful capture of those institutions, the application of discriminatory laws, atrocity denialism, and the manipulation of public opinion combined with the dehumanization of the group targeted with extermination. It is not bloodthirsty monsters that commit genocide. Instead, as both Hannah Arendt and Zygmunt Bauman taught the world in relation the Holocaust, genocide is organized and orchestrated by bureaucrats.

Why does this matter? Because if Israeli authorities and the international courts had addressed widespread allegations of war crimes, crimes against humanity, and apartheid committed against Palestinians, the very grounds of South Africa’s case against Israel would almost certainly not exist. 

To be sure, Hamas might still be the genocidal entity that it is, but it would almost certainly have little popular support, let alone power, if the basic rights of Palestinians had respected, protected, and promoted as opposed to systematically violated over decades. And again, the grounds that South Africa put forward in its application to the ICJ to claim that genocide has been taking place in Gaza would likely not exist.

Had the illegal blockade on Gaza not been imposed for the last seventeen years, Gazans might not be starving to death and have enough medical care to survive this war. If those Israeli officials who incite the ethnic cleansing and apartheid were in jail rather than normalizing ethnic cleansing on TV and in cabinet, there would be no grounds to suggest they incited genocide. If settlers were prohibited from stealing land in the West Bank and sanctioned or punished for doing so, it would be much harder to connect any risk of genocide in Gaza to the mistreatment of Palestinians in the West Bank. The theft of land, after all, is a central, motivating feature of all genocides.

Impunity defines this conflict. South Africa’s case is a symptom of the failure to meet the demands of justice. Had Palestinians and Israelis had the opportunity to plead their cases and seek and secure meaningful accountability, perhaps there’d be no reason for the ICJ proceedings.

The key point is the obligation to prevent genocide 

The full name of the Genocide Convention is the Convention on the Prevention and Punishment of the Crime of Genocide. As International Law Professor Rob Howse writes: “the genocide convention is concerned above all with prevention, and thus should be applied long before a situation metastasizes into full-blown and possibly unstoppable annihilation.”

In 2007, the ICJ decided that all parties to the Convention are under the obligation to prevent genocide wherever there is a serious risk of it being committed, and that this obligation exists even in the absence of a legal determination that genocide has been committed. 

What constitutes a serious risk of genocide? The very same facts laid out above: systematic impunity for and denial of atrocities; the capturing of institutions and government bureaucracies by those who endorse collective punishment and ethnic cleansing; and the dispossession of resources, theft of land, and placation of those do both.

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