Let’s get the context right, if we dare to be honest. Israel's policies are the policies of a racist, settler colonial, apartheid state and it is committing a plausible genocide in Gaza. “Israelis are wrong to think that genocide should look like the Holocaust.” Those who choose to deny the reality of the genocide in Gaza, as confirmed by a growing body of internationally recognised, ethical individuals, organisations and institutions, are the same individuals who denied that South Africa was a racist apartheid state and who claimed that the ANC and Mandela were terrorists, that black people were savages and inferior and needed to be civilised, and that South Africa was a land for a people without a land. The squatters came from the colonial motherlands, despite having a land of their own. They used brutal violence on the indigenous people, stole the land, claimed ownership, asserted dominance by claiming superiority, committed ethnic cleansing of the indigenous, labelled the indigenous as terrorists and violent savages, and then claimed that the land was empty and that they had “improved and modernised” it. Israelis argue that a God they do not believe in (Zionists are secularists/atheists) gave Palestine to them. It should be remembered that the Torah is neither a historical nor a legal document.

........

It should be remembered that the Torah is neither a historical nor a legal document.

........

Israel’s government has stated that it can “legislate anywhere in the world”, that it is “entitled to violate the sovereignty of foreign countries” and that it “is allowed to ignore the directives of international law in any field it desires”. All of the settlements that Israel has constructed since 1967, including the kibbutz settlements around Gaza, are considered illegal under international law. This has been reaffirmed in the UN by numerous resolutions – the same UN that recognised Israel as a state in 1948. Article 49 of the Fourth Geneva Convention states clearly that an occupying power (in this case Israel) is forbidden from any transfer of its civilian population into territory it is occupying. Israel has been importing riff-raff from all over the world to relocate as squatters onto stolen, mostly private Palestinian land. Many of the adult Israelis who live in these illegal settlements are Israeli Defence Force (IDF) reservists and often engage in violent incursions against Palestinians. Extremist squatters in the West Bank aim to expel Palestinians from the 60% of the territory classified as Area C, placing it under full Israeli control. However articulated, their goal has always been a homogeneous Israel “from the river to the sea” – constituting ethnic cleansing. These squatters commit crimes with impunity in full view of and with support from the US-backed apartheid state of Israel.

The colonisation, ethnic cleansing and occupation of Palestine began and was planned before the Holocaust. The Balfour Declaration was a letter sent on 2 November 1917 by the foreign secretary, Arthur James Balfour, to the Jewish community leader, Lord Rothschild. The letter expressed support for the establishment of a national home for the Jewish people in Palestine, then an Ottoman region with a small minority Jewish population. The Holocaust timeline suggests that the persecution of the Jews began around 1933, with the systematic mass murder of European Jews occurring around 1941. Dr Ralph Wilde’s argument at the ICJ’s hearings for an advisory opinion on the Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem questioned the legality of Britain’s mandate to create a Jewish state in Palestine. The recognition of Palestine as an independent state was originally envisioned as a provisional acknowledgement, rooted in the sui generis right established by Article 22 of the League Covenant within the Versailles Treaty. Wilde’s analysis reveals a deviation from this trajectory. The UK and other League Council members sought to circumvent this right by incorporating the commitments outlined in the 1917 Balfour Declaration into the mandate governing Palestine’s administration. He highlights the illegitimacy of this approach, because “Palestine’s Class A mandate status meant that it was already recognised, per Article 22 of the Covenant, as a state; just not as an independent state”. Thus, the Council lacked the legal authority to override the provisions of the Covenant, rendering their actions ultra vires and the relevant mandates legally void. Consequently, there exists no legal basis within the mandate instrument for the establishment of a specifically Jewish state in the state of Palestine or to pardon the UK’s failure to fulfil its obligation to facilitate Palestinian self-determination. Yet, Israel’s statehood was recognised, and it was admitted as a member of the UN, despite the illegality of its secession from the mandate, while full Palestinian membership in the UN has as yet not materialised. A big shout-out to Norway, Ireland and Spain, who announced yesterday [22 May 2024] that they now recognise Palestine as a state based on the 1967 borders.

........

South Africa’s lawsuit against Israel at the ICJ has been about defending the defenders. It represented voices long silenced through hegemonic narratives, propaganda and bullying. It is not merely a legal manoeuvre; it is a moral and ethical position.

........

South Africa’s lawsuit against Israel at the ICJ has been about defending the defenders. It represented voices long silenced through hegemonic narratives, propaganda and bullying. It is not merely a legal manoeuvre; it is a moral and ethical position. Israel has always acted as if it is the victim of a genocide perpetrated by Hamas; any criticism of Israel is anti-Semitic, and it has the right to self-defence. The UN’s special rapporteur on human rights in the occupied Palestinian territories, Francesca Albanese, has clarified that the right to self-defence can only be invoked when a state faces a threat from another state, a condition not met in the ongoing alleged acts of genocide in Gaza. Gaza is not “another” state. Gaza has been under siege by the US-backed apartheid state of Israel for 17 years. In examining the legal framework surrounding self-defence, it is evident that a state cannot assert this right when facing a threat from an armed group within an occupied territory, especially where that territory is kept under belligerent occupation.

At the ICJ, South Africa noted Resolution 3314 of the UNGA of 1979, prohibiting states from “any military occupation, however temporary”, establishing that Israel’s occupation of Gaza and the currently occupied Palestinian territories is illegal. This also set grounds for the recognition of Hamas as a resistance movement. It emphasised Resolution 37/43 of 1984, which reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”. Hamas’s attack on Israel was a response to Israel’s illegal blockade on Gaza. Under international law and according to Israel itself, blockades are acts of war (recall that Israel claimed that Egypt’s blockade on the Straits of Tiran in May 1967 was an act of war). Most people do not know that the majority of states in the UN and the UN itself do not define Hamas as a terrorist organisation. A resolution to label Hamas as a terrorist group failed to pass in the United Nations Security Council (UNSC) in 2018. The resolution was rejected because it had only one in favour (United States), three against (Bolivia, Kuwait, Russian Federation) and 11 abstentions.

........

The ICC prosecutor’s request for arrest warrants for crimes in the Gaza Strip reflects its compromised integrity. The Court cannot remain silent on the ongoing violence, as this would risk its relevance.

........

The ICC prosecutor’s request for arrest warrants for crimes in the Gaza Strip reflects its compromised integrity. The Court cannot remain silent on the ongoing violence, as this would risk its relevance. However, the issuance of arrest warrants sets a significant precedent. Palestine became a state party to the Rome Statute in 2015, and the prosecutor has been investigating the situation for years. In 2018, Palestine referred itself to the ICC per articles 14 and 13(a) of the Rome Statute. In November 2023, South Africa, Bangladesh, Bolivia, Comoros and Djibouti also referred the situation in Palestine to the Court, as did Chile and Mexico in January 2024. In 2021, the Court found that it has territorial jurisdiction over “the territories occupied by Israel since 1967”. The ICC has jurisdiction when the “conduct in question” is committed in the territory of a state party or by a national of a state party (article 12(2) of Rome Statute). Hamas’s readiness to appear before the ICC contrasts sharply with Israel’s stance. Columbia University’s Joseph Massad notes that the West has always considered anti-colonial struggles to be criminal, while its own colonial barbarity is always described as “defensive”.

........

It ignores the broader context of ongoing violence and human rights abuses reported by Palestinian organisations over the past decade, such as the crimes during the Gaza March of Return and settlement expansion in the West Bank.

........

Significantly, the Court’s recent actions include more charges against Hamas leaders (eight) than Israeli ones (seven), with a focus on crimes committed since 7 October. The laying of charges against Hamas for sexual violence and mistreatment of hostages, while well-documented sexual violence and other forms of torture inflicted on Palestinians in Israeli captivity are overlooked, is absurd. It ignores the broader context of ongoing violence and human rights abuses reported by Palestinian organisations over the past decade, such as the crimes during the Gaza March of Return and settlement expansion in the West Bank.

The ICC’s actions are criticised by the US and Israel based on the principle of complementarity. They maintain that the ICC should intervene when a state is unwilling or unable to prosecute serious international crimes. The internal Israeli opposition’s labelling of the ICC accusations as a “moral failure” illustrates Israel’s unwillingness to address these crimes. This justifies the ICC’s intervention. Albanese aptly captures the situation: “To the countries who are ‘outraged’ by ‘the only democracy in the Middle East’ risking being on the dock of the International Criminal Court: time to get out of Wonderland (#WhitePrivilegeLand); time for substantive justice.”

The Prime Minister of Israel has been exposed as an alleged international criminal, and this is a historic achievement considering that according to a senior western leader the ICC was built for “Africa and thugs like Putin.”

Dr Quraysha Ismail Sooliman is a National Institute of the Humanities and Social Sciences postdoctoral researcher in the Department of Political Sciences at the University of Pretoria.

This article first appeared in LitNet on 23 May 2024.

Disclaimer: The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of the University of Pretoria.