Heidi Matthews, York University, Canada
January 17, 2024
South Africa has made submissions at the International Court of Justice in its genocide case against Israel. It’s requesting the court order provisional measures to safeguard the rights of Palestinians in Gaza that would protect them from genocide until the case is heard.
South Africa alleges that Israel is engaging in genocidal acts violating the United Nations’ 1948 Genocide Convention. It accuses Israel of engaging in killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the physical destruction of the Palestinian people in Gaza in whole or in part, and imposing measures intended to prevent births within the group.
South Africa argues that statements by Israeli officials, including Prime Minister Benjamin Netanyahu’s comment that Israel is waging “a battle of civilization against barbarism,” constitute evidence of its intent to destroy Palestinians in Gaza.
Among other measures, South Africa is asking the court to order Israel to immediately suspend its military operations in Gaza.
Immune to genocide accusations?
In presenting its defence to the court on Friday, Israel said it was conducting its war in Gaza in line with international humanitarian law. As such, it argued, the court could not plausibly infer that Palestinians in Gaza require protection from genocide.
Israeli officials have called the lawsuit “blood libel” and the United States has dismissed it as “completely without any basis in fact whatsoever.”
Nonetheless, an increasing number of states have voiced support, including the 57-member Organization of Islamic Cooperation, the Arab League, Brazil, Turkey, Malaysia, Jordan, the Maldives, Bolivia and Namibia. France has indicated it will support the court’s decision.
On Friday, Prime Minister Justin Trudeau said that while Canada believes in the importance of the International Court of Justice as an institution, that “does not mean that we support the premise of the case brought forward by South Africa.”
UN experts, international organizations and numerous Canadian and international legal scholars have warned that Israel’s war risks becoming — or has already become — genocide.
Other prominent Canadian legal voices disagree. Former Supreme Court Justice Rosalie Abella argued South Africa’s case is “an insult to what genocide means” because Hamas attacked Israel on Oct. 7, 2023, and because the crime of genocide was defined in response to the Holocaust.
Such a stance suggests Israel should be shielded from accusations of genocide. Yet as South Africa argued, no atrocity can justify genocide. It also ignores how structural conditions of apartheid and unlawful occupation set the stage for genocide to occur.
Canadian hypocrisy
No state is immune from genocide, including Canada. In fact, Canada’s history of genocide against Indigenous Peoples puts it in a unique legal and political position with respect to Gaza. Over the last decade, the Canadian government has exhibited both colonial self-awareness and intransigence.
Trudeau has accepted findings by the National Inquiry into Missing and Murdered Indigenous Women and Girls that Canada is responsible for a “race-based genocide.” But the federal government has continued to defend many of the discriminatory policies that constitute a pattern of genocidal conduct.
Canada finds itself at a crossroads when it comes to its genocide policy, both at home and abroad.
In November 2023, Canada joined Denmark, France, Germany, the United Kingdom and the Netherlands as an intervenor supporting The Gambia’s genocide case against Myanmar. It did so based on the “common interest” in supporting the UN Genocide Convention, which calls for the prevention and punishment of genocide.
In that case, Canada advanced some important legal positions that would mean its objections to South Africa’s case would go beyond hypocrisy; they represent a complete departure from legal interpretive frameworks Canada has already accepted.
Particularly noteworthy is the expansive interpretation in the Myanmar case — adopted by Canada and the other intervenors — of the genocidal act of imposing conditions of life calculated to bring about the physical destruction of a group of people.
When assessing whether particular actions will cause group destruction, the joint intervenors submitted that special attention should be paid to the impact on children.
Citing examples of food insecurity, the deprivation of access to medical care and forced displacement, it notes that a “situation in which children are unable to survive might … lead to the inability of the group as a whole to regenerate itself.”
The intervenors in the Myanmar case further argued that because “genocidal intent is rarely formulated expressly,” efforts to destroy a group in whole or in part can be inferred based on a pattern of conduct — for example, the deliberate creation of a situation in which children are unable to survive.
Canada’s opportunity
Israel’s war in Gaza is widely recognized as one of the most destructive in recent memory.
More than 23,000 Palestinians have been killed and 59,000 have been injured — mostly women and children — and 85 per cent of the population has been displaced. Gaza is facing a grave public health crisis, and the World Food Programme warns that “everyone in Gaza is hungry.”
Like all parties to the Genocide Convention, Canada has a legal obligation to take concrete actions to prevent genocide. Working to end Israel’s war on Gaza and address the root causes of the conflict is an important part of fulfilling that duty.
How can Canada exert influence on Israel and the world to advance Palestinian human rights and self-determination while maintaining its credibility at home and abroad?
Ironically, the answer may lie in Canada’s self-awareness, however limited, of its domestic human rights situation in terms of genocide.
By supporting The Gambia’s case and accepting genocide has taken place against Indigenous Peoples, Canada has opened itself up to criticism and potential legal responsibility. Its vulnerability to liability for genocide presents an opportunity for it to act as an honest broker to facilitate a long-term resolution of the conflict in Israel and Palestine.
Next steps for Canada
Today, international legal struggles centre the rights of individuals and peoples, as opposed to states, more than ever before. International criminal justice tribunals have proliferated, and UN bodies now accept genocide prosecution as a means to achieve international peace and security.
Canada must clarify its stand on South Africa’s case. Even if Canada does not support South Africa’s argument that Israel is currently committing genocide, it would be unreasonable and immoral were it not to accept that there is a serious and imminent risk of genocide in Gaza requiring some form of interim relief by the court. Canada’s international reputation is on the line.
Heidi Matthews, Assistant Professor of Law, Osgoode Hall Law School, York University, Canada
Subscribe to our newsletter.
This article is republished from The Conversation under a Creative Commons license. Read the original article.