Canada and Israel/Gaza: Look to courts to ensure that international law prevails

January 21, 2024// Alex Neve

Humanity’s heart aches and soul weeps

Still, the bombs do not relent in Gaza’s skies as the harrowing death count on the ground now exceeds 25,000. Still, over 100 hostages are held captive amidst the destruction. Surely it is not possible that this has continued for more than 100 days. But it has and it does.

Humanity’s heart aches and soul weeps for the Palestinian grandmothers who begin each day in fear that their family will end the day buried under the rubble of their destroyed Gaza home.  Humanity’s heart aches and soul weeps for the Israeli mothers who begin each day longing for news that their loved ones have been freed from captivity in Gaza.

It cannot go on, but it does. It should not have come to this, but it did. It must end today, but it does not. And while vetoes are wielded or resolutions watered down to near nothingness at the United Nations, arms and weapons flow unchecked, hospitals and universities are attacked and destroyed, and hostages continue to be denied their freedom, are we truly left only to ache and weep, to rage and disbelieve?

The worst is that this was not unimaginable, not impossible to foresee. For it has, of course, been building to this point for years and decades.  All in plain sight. That the people of Gaza could not withstand the oppressive weight of subjugation and apartheid was foreseeable. That there would be attacks against Israeli civilians of this scale and brutality was foreseeable.  Even the chilling prospect of genocide against Palestinians in Gaza was imaginable.

Imaginable and foreseeable because over those years and decades, at every turn when it truly mattered and when there were choices that would have opened up very different paths, human rights were contemptuously pushed to the side. Violations compounded. Insecurity deepened. Suffering intensified. Inequality expanded. Illegality and unlawfulness became entrenched.

And at all times the architects and perpetrators of war crimes and crimes against humanity have been shielded and protected by the wretchedness of impunity. When impunity consistently and contemptuously prevails over justice and accountability, October 7th is imaginable, and genocide is foreseeable.

Humanity’s heart aches and soul weeps for those different paths not taken, which would have put human rights at the very centre of lifting up Palestinian dignity, building true security for Israelis and Palestinians alike, and forging regional peace.

And today, humanity’s heart aches and soul weeps with sorrow, rage and disbelief that is all the greater because even now, when human rights should be pursued and embraced as never before, they are instead disingenuously weaponized and cynically and blatantly disregarded.

Turning to the International Court of Justice

And so we come to the furor and indignation over South Africa’s historic and important case against Israel at the International Court of Justice, seeking to enforce and uphold the UN’s Convention on the Prevention and Punishment of the Crime of Genocide.

Many commentators and many governments have slammed South Africa, insisting that to even file the case is groundless, antisemitic and an abuse of the international legal order. It is blood libel to make such an accusation insists the Israeli government. Iconic retired Supreme Court of Canada Justice Rosalie Abella has decried the case as an “outrageous and cynical abuse of the principles underlying the international legal order that was set up after the Second World War.” The US government has unequivocally criticized the South African case as “meritless, counterproductive, and completely without any basis in fact whatsoever”. 

The arguments advanced against the South African case are many. Genocide is a baseless charge because Israel is only responding in self defence to the heinous Hamas attacks of October 7th, as is its right and obligation. Alleging genocide is patently untrue because Israeli forces have taken extensive efforts to warn of attacks and minimize harm to civilians. It is groundless because it is Hamas that has the true genocidal intent, evidenced by calls for the destruction of Israel in their founding documents. Israel faces the risk of genocide, and thus cannot be accused of genocide itself, goes this argument. It is hypocritical for South Africa to bring these charges as they have not pursued such cases against other governments, and do not have clean hands due to their failure to act on an International Criminal Court arrest warrant issued against President (at the time) Omar al-Bashir of Sudan, on charges of genocide in Darfur, while he was in South Africa in 2015.

Yes, Israel should and must take action in response to horrifying attacks such as those unleashed on October 7th, though there is extensive international law that governs that response. Yes there have been steps taken to warn and protect Palestinian civilians in Gaza, though the scale of civilian death and suffering at a time and in a place where UN officials have repeatedly said there truly is nowhere safe, speaks to how genuine or effective those measures have been. Yes, Hamas has much to answer for, both with respect to war crimes and crimes against humanity directed against Israeli civilians, as well as grave violations and abuses within Gaza.  And of course, South Africa’s failure to arrest al-Bashir was disgraceful and a breach of international legal obligations.

Whatever the legitimacy of any of those arguments, it does not answer accusations of genocide, it does not negate the fundamental international obligation to prevent genocide, and it does not in any way excuse genocide, for which there is never any justification.

And none of those arguments in any way shift the weight and gravity of the evidence compiled in South Africa’s thorough and comprehensive 84 page brief, replete with detailed legal analysis and extensive evidence.  The brief is a harrowing catalogue of Israeli military operations and government policy, raising patently evident concerns about genocidal acts that will “destroy, in whole or in part, a national, ethnical, racial or religious group” and it includes a chilling compilation of pages of statements made by numerous Israeli political leaders and military personnel expressing the chilling intent to destroy a national, ethnical, racial or religious group, that is central to a charge of genocide.

There is nothing remotely libelous, cynical or meritless about South Africa’s application to the ICJ. That such cases do not happen as often as they should is absolutely true. But the undeniable fact that there have been and are many other governments that should similarly be brought before this and other courts and made to answer accusations of genocide and other serious and systematic breaches of their international human rights obligations – to the eternal shame of the international community – does not take away from the importance and urgency of it happening in this case.

The South African case builds on three other notable human rights cases that have been filed at the International Court of Justice over the past four years. Gambia launched a case at the Court in 2019, seeking to apply the Genocide Convention against Myanmar, and Ukraine brought Russia before the Court in 2022, also under the Genocide Convention. Canada and the Netherlands resorted to the Court in 2023, to enforce the UN Convention against Torture against Syria. These groundbreaking cases give hope that states will increasingly make use of the ICJ to play what is, after all, one of its most important roles, providing a venue for states to press other states to uphold the international human rights obligations to which they readily commit, but which they notoriously fail to respect.

Canada: Equivocation or clarity?

And what of Canada?  The most recent indication of Canada’s position comes, not in a press release or official statement, but from media reports clarifying an earlier confused statement:

Canada will abide by all rulings arising from South Africa’s genocide case against Israel at the International Court of Justice (ICJ), officials at Global Affairs Canada have told CBC News.

The realization that something so middle of the road as essentially saying we will respect the law was news and had been uncertain, to put it generously, and contested, for several days, is a dismal reflection of how skewed and polarized political and public discourse about the situation in Gaza has become in Canada (and elsewhere of course).

Let’s be clear. This was not a matter of expressing explicit support for or opposition to the substance of South Africa’s case. All that was in play was reaffirming that Canada’s longstanding and strong support for the important role that the International Court of Justice plays as an arbiter – in many respects the ultimate arbiter – of international law and the global rule of law, means that Canada will respect and abide by the Court’s rulings in this high-profile case.

Reassuringly, the clarification provided on January 15th puts to rest, somewhat, the earlier muddled statements from Prime Minister Trudeau and Foreign Affairs Minister Joly, which seemed to be all about trying to have it both ways by combining “unwavering support for international law and the International Court of Justice”, alongside a convoluted qualification that such support “does not mean we accept the premise of the case brought by South Africa.” 

The awkward contortions of “does not mean we accept” was decidedly different from saying “we do not accept”, nonetheless many interpreted that statement as indicative of Canada rejecting the South African case. There had been a widely-held expectation that Canada was likely to take a position against South Africa, particularly given our tendency to follow the US lead when it comes to international level decisions and positions with respect to Israel/Palestine.

But how would taking such a position square with “unwavering support” for the ICJ?  It wouldn’t, and thus the twisted semantics of “does not mean we accept the premise”. Clearly it was an attempt to stay somewhere in the middle without saying we were trying to stay in the middle, and an attempt to please everyone who held views about the case while, effectively, pleasing pretty well no one.

The clarification that has been provided, simply that Canada will abide by ICJ rulings in the case, has drawn sharp criticism, notably from Iddo Moed, Israel’s Ambassador to Canada, who calls on Canada unequivocally to state that South Africa’s case has “no legal or factual basis.”

Many of the critics of the South African case argue that it is a misuse of and will in fact undermine what is often referred to as the “rules-based international order.” Nothing could be further from the truth. Quite the contrary, it is indeed absolutely time to turn to the full breadth and range of what is offered through that vaunted, but systematically ignored and disrespected, “rules-based international order.”  The very clear, longstanding problem that lies at the heart of decades of war crimes, crimes against humanity and other widespread violations of international human rights law and international humanitarian law in Israel and Palestine, now amplified dramatically with serious concerns about unfolding or, at the very least impending, genocide in Gaza, is that the rules-based international order which so many are now commending and championing has been consistently undermined and ignored.

South Africa’s application seeks to rectify that colossal failure to put international law, in its entirety, at the heart of resolving this entrenched conflict, by taking one of the world’s most important international laws, the Genocide Convention, to what is arguably the world’s most important international court, the ICJ, and putting it in the hands of 17 international judges to deliberate and resolve.

Rather than excoriate South Africa for taking this step we should all say, “at last”. 

Support for the International Criminal Court

Alongside welcoming the involvement of the International Court of Justice, Canada and other states should also express support for investigations being carried out by the International Criminal Court, which predate October 7th. Canada’s position to date has been one of opposition to the ICC investigation, the basis for which lies in the fact that the State of Palestine is a party to the ICC’s Rome Statute.  The Court has ruled that Palestine’s accession to the Statute provides a lawful basis for investigations linked to Gaza, the West Bank and East Jerusalem. That extends to crimes authorized by Israeli leaders and committed by individual members of Israeli forces in those Occupied Palestinian Territories. It also applies to individual fighters with Hamas and other Palestinian armed groups operating within the OPT and from the OPT into Israel.

Canada maintains that Palestine is not an internationally-recognized state and that the Court therefore does not have jurisdiction.  That view, however, did not prevail and was rejected by the Court. As such, it is time to see more of Canada’s “unwavering support” for international law. The ICC investigation should be welcomed and encouraged by Prime Minister Trudeau and his ministers, particularly at this time.

Support for the ICC is the obvious companion to support for the ICJ. While the ICJ focuses on state responsibility, the ICC offers a venue for pursuing individual criminal responsibility for genocide, crimes against humanity and war crimes.

That means the prospect of accountability for Israeli politicians and military leaders and soldiers who have never faced justice for war crimes and crimes against humanity. That is a game changer when it comes to piercing the impunity that has long shielded Israeli officials.

But it does not end there. Crucially, unlike the ICJ, the ICC’s jurisdiction is not limited to governments That means that it also provides a venue in which allegations of the responsibility of Hamas and other Palestinian armed group leaders and fighters for international crimes, on October 7th and previously, can and should be taken up. The answer to the frequent defence advanced by Israel that it is Hamas that should be judged culpable of genocide, on the basis of its founding documents as well as the scale and nature of the attacks mounted on October 7th, is to look to the ICC to investigate, charge and prosecute. That would include acting on the mounting evidence that Hamas fighters systematically raped Israeli women on October 7th. 

Yet Israel continues to reject the ICC investigation, and Canada, a longtime champion of the Court, has yet to express support. Can it truly be Canada’s position that Palestinians deserve no access to international justice to vindicate their rights, and that the one international court effectively able to hold members of Hamas and other armed groups accountable for international crimes should be kept at bay?  

Decades of impunity must give way to justice

Contempt for international law, by the Israeli government, by Israeli Defence Forces, by Hamas and by other armed Palestinian groups, has been the hallmark of the Israel/Palestine conflict for decades. That includes:

  • more than fifty years of Israeli occupation of Palestinian Territories, marked by the expansion of illegal Israeli settlements and extensive war crimes and grave human rights violations;
  • a 16+ year blockade of Gaza, amounting to unlawful collective punishment, that has had devastating impacts on health, education, freedom of movement, the economy, livelihoods, and access to food and water, and has left the Palestinian population living in what is often described to be the world’s largest open air prison;
  • a system of control and governance of the Palestinian people by the Israeli government that has been widely documented as constituting the international crime of apartheid;
  • refusal of states and armed groups throughout the region to guarantee the existence, borders and security of the state of Israel;
  • missile attacks from Gaza into Israel that have killed and terrorized Israeli civilians for years;
  • numerous previous devastating Israeli military campaigns against Gaza, marked by massive aerial bombardment widely condemned for war crimes due to the deliberate or indiscriminate targeting of the civilian population and infrastructure;
  • concerns about Hamas and other armed groups using human shields and other tactics in Gaza that expose civilians to risk of attack, also amounting to war crimes; and
  • inflammatory, hate-filled and inciteful speeches and commentary by both Israeli and Hamas officials.

Against this backdrop, before and since October 7th, confrontational rhetoric that the International Court of Justice and International Criminal Court should play no role in responding to the unrelenting violence in Israel/Palestine only deepens divisions. Of course none of this will be solved, magically and overnight, by either of these important international courts. But what a difference it would be to allow laws, human rights and judges to take over from 2,000 pound bombs, rockets and the hate and fearmongering of politicians.

Let there be no more equivocating statements from Canada when it comes to the vital role that international law and courts must play in preventing genocide in Gaza, and in ensuring justice and accountability for war crimes and crimes against humanity throughout the Occupied Palestinian Territories as well as in Israel. 

And let that not be exceptional, let it become Canada’s clear mantra with respect to grave human rights crises anywhere in the world. The bottom line must always be full respect for international human rights and international humanitarian laws, backed up by full and yes, unwavering, support to national and international courts as they seek to enforce those laws and hold perpetrators accountable.  Only then might the ache of humanity’s heart and weeping of humanity’s soul begin to ease.