What does South Africa stand to gain from accusing Israel of Genocide in Gaza?
And is the crime of Genocide amenable to a legal definition or is it a 'I know it when I see it' situation? And at the bottom, can Israelis recover their democracy from Bibi?
Hello Orderers,
HAPPY VALENTINE’S DAY. Nothing says Romance like a few thousand words about what constitutes the international legal definition of Genocide. So I thought I’d not let my subscribers down and would deliver for them true Romance on this V-DAY.
So it is Wednesday and hence it is time to Order the Disorder via substack. Please bear with me as I am learning this new format. As I mentioned, I am going to try to provide extra perspectives and content on the topics covered in each week’s pod. This week, we looked at South Africa, its history, the long shadow of apartheid, the current corruption cases against Zuma, and why all of these might shed light on South Africa’s decision to pursue a Genocide case against Israel at the ICJ.
Much ink has been spilled about the legal definition of the crime of Genocide and if Israel has committed it in Gaza or if Hamas committed it on October 7th as a long overdue case by the Oct 7th families is finally bringing forward to counter the South Africa case.
In this pod, we are not examining those legal or moral issues. Adopting a non-legal, and non-humanitarian frame of mind, we are going to examine what are the underlying geopolitical, historical, and diplomatic reasons for South Africa bringing a genocide case against Israel at the International Court of Justice (ICJ)?
In this episode of Disorder, Jason Pack speaks to Sasha Polakow-Suransky -- deputy editor of Foreign Policy and author of ‘The Unspoken Alliance: Israel's Secret Relationship with Apartheid South Africa’. The duo turn the telescope around and look squarely at South Africa, rather than looking at Israel or the Palestinians. They discuss the global implications of the ICJ case for South Africa and how it fits in the country’s decades long whiplash romances first with Israel then with the Palestinians, how South Africans see their role in the world, and whether South Africa’s actions and media campaign will further intrench ideas in the Global South that America’s stance on Israel’s actions in Gaza is grounded in hypocrisy. Then in our Ordering the Disorder segment, we debate is South Africa proposing an alternative order to the American-led international system or merely an alternative disorder?
Further background on Sasha’s writing, on the ICJ, and the UN Convention on Genocide:
Read: ‘What South Africa Really Won at the ICJ’ by Sasha at https://foreignpolicy.com/2024/02/01/south-africa-israel-gaza-genocide-icj-global-south-ukraine/
Read: ‘The Year Geopolitical Competition Returned to Africa’ by Sasha at https://foreignpolicy.com/2023/12/27/africa-geopolitics-sudan-niger-nigeria-mauritania-brics-wagner-prigozhin-2023/
Listen to Today, Explained episode, ‘Israel at the International Court of Justice’ https://pod.link/todayexplained/episode/fb0b755e2647db090569dd9f14dd4cf3
Read the Convention on the Prevention and Punishment of the Crime of Genocide
Get Sasha’s book The Unspoken Alliance: Israel's Secret Relationship with Apartheid South Africa https://www.penguinrandomhouse.com/books/132145/the-unspoken-alliance-by-sasha-polakow-suransky/
SETTING THE STAGE:
We live in an increasingly fractured and partisan world, isolated in our own filter bubbles. In this disordered environment where agreeing on basic facts and the underlying fundaments of reality is so tough, it is increasingly apparent that one woman’s version of order can appear to be another man’s version of disorder. These alternative realities and opposite sides of the looking glass are profoundly exemplified by opposing takes on the Israeli-Palestinian conflict and interpretations of how international institutions should act to affect the issue. It is literally impossible to conclusively demonstrate what constitutes justice as pertains to this conflict or what international institutions should and should not do to affect the conflict.
Consider: One man’s freedom fighter is another man’s terrorist… one man’s genocide is another man’s legitimate self-defense… to some the IDF is accurate when its spokesmen proclaim that it is most moral army in the world and to others the IDF is a 21st century version of fascism. Some proclaim that Israel is itself an apartheid state and that it practices a version of settler colonialism, while others understand Israel as an embattled democracy with a nearly unblemished record of respecting the rights of all sorts of minorities.
Is Genocide something which is amenable to a legal définition or not:
Everything about the October 7th Hamas atrocities and subsequent Israeli reprisals and ongoing war in Gaza has sparked controversy, contentions, claims and counterclaims… yet no part of the ever escalating rhetorical war has been as divisive and as polarizing as claims that the IDF, and by implication the Israeli state, is perpetrating ‘genocide’ in Gaza. Such is the legal case against Israel at the International Court of Justice (ICJ) brought by South Africa under the Convention for the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly which was adopted by the UNGA on 9 December 1948.
South Africa’s accusation against Israel of perpetrating ‘the Crime of Genocide’ is so emotionally charge and so loaded and the accusation so vicious to level against Israel given that it is a state that was born out of the ashes of a genocide. Just to repeat ad nauseum, this podcast episode is decidedly not about the justice of that case nor the technical legal ways in which the court case is prosecuted and its findings implemented by the UN but for those who are interested in the technical aspects of that case please allow me to direct you to an excellent episode of Today Explained by Vox https://www.vox.com/world-politics/2024/1/26/24051839/icj-south-africa-genocide-case-israel-gaza
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So while making clear THAT WE ARE NOT DEBATING THE MERITS OF THE CASE OR WHETHER ISRAEL’s actions constitute genocide or not… on the podcast episode, Let’s briefly further set the stage here by provide some deeper background by considering two views on the ICJ and its unique ability to convict on the crime of genocide.
First view (the legal one): The definition as laid out in the 1948 convention is actually quite a lower bar than people might imagine when they think of the crime of genocide in layman’s understanding of the deliberate attempt to wipe out an entire people (as defined as an ethnic, religious, or other definable group). As under Article II of the convention, merely killing some members of the group (for being from the group) or bringing about conditions that impede the group in reproducing can be termed as ‘Genocide’ and therefore given the international legal logic of this convention and its lack of reference to self-defense or retaliation for previous acts or attempts to catch terrorists among civilians, or to kill militants who use human shields, the South African case could in theory prove over the next two years that Israeli actions constitute genocide as per article II. And that they do so in a slam dunk. As targeting any Gazans as Gazans or denying Gazans the ability to reproduce and stay nourished EVEN IF HAMAS IS USING GAZANS AS HUMAN SHIELDS, can fall under article II as committing ‘the crime of genocide’. Nowthis is NOT WHAT A NON LEGAL MIND WOULD THINK OF AS GENOCIDE. Hence, I personally don’t believe reference to this definition is how one should determine if Genocide has or has not been committed, but I am not a legal scholar and maybe I am missing something. But do look at the UN Conventions definition and draw your own conclusions: https://news.un.org/en/story/2007/02/210142
Now a second non-legal view also questions the very possibility of an international legal body determining what is a genocide: Given our fractured disordered international system and that we live during a global enduring disorder which is characterized by the inability of states to coordinate to solve collective action problems (like how to set up a court to be neutral to try genocide cases), one might ask if any international courts are fit for such a purpose: are any courts neutral enough when justices are appointed by states with interests and biases to produce genuinely neutral judgments which dispassionately rule on and implement international law rather than the interests and biases of the states that appoint the justices??
Hence, you could argue that if you really care about genocides and their prevention and punishment of those who try to commit them, you would be very uninterested in the letter of the law of the 1948 genocide convention (as it defines the crime down) and in its current interpretation by a non-neutral body like the ICJ (as it is not neutral— states appoint their own justices… what a dumb system). Similarly, you could care very highly about the concept of international law and international justice and international institutions in the abstract (as I do) but be fairly uninterested (as I am) in what the letter of a specific UN Security Council resolution as its text was only arrived at based on what the Russians wouldn’t veto or a specific ICJ ruling as it is based on what European and Global South’s populaces want their justices to find and hence the supposed will of the international community is in fact a very biased thing.
Therefore taken from a philosophically and historically grounded view of genocide, you could conclude that genocide is the most heinous crime individuals and institutions can commit yes the ICJ system isn’t the way to find people or states guilty of it. And we can already see this from how it has played out. Rwanda was not found guilty by the ICJ of Genocide. And then we also have the finding of the ICJ that Srebrenica constituted a genocide and that Serbia was guilty not of committing the genocide but of failing to prevent it. This ruling is complex on multiple accounts as is actually a misuse of the term genocide which the convention allows because of how the crime has been defined downward by article II and proof that the law and the court which adjudicates that law are not fit for purpose and grounded in reality.
The Srebrenica ruling was based on the idea that actions against a subset of a group in an ethnic cleansing style fashion even in a small area dealing with a small subset of the group can constitute genocide as per the convention, even if no genocide was committed overall. To this anti-legal, and more historical or philosophical cast of mind, these actions referred to by the ICJ are again not what people think of as genocide… i.e. the systematic attempt to wipe out the whole group or the whole group which the perpetrators can wipe out.
But by the legal view of Article II hundreds of genocides have been committed in the last 75 years they just haven’t been tried at the Hague. Realizing this at this point this second view would need to sharply differentiate btw ethnic cleansing and genocide as two very very separate concepts. There have been scores of examples of ethnic cleansing in the 20th and 21st century, but by the man in the street definition possibly only three to five real genocides which demonstrated a genuine desire, intent, and follow through attempting to (and at least significantly succeeding in) extinguishing an entire definable and distinct and historically entrenched group through systematic mass murder to the extent the perpetrator could. To sum up this second anti-legal view of genocide, making a definition out of it would draw on the famous quote of Supreme Court Justice Potter about pornography, “I know it when I see it.” Justice Potter’s wisdom here might be that when it comes to something like trying to define genocide in a technical and legal sense would be to inherently miss the point of the world historical tragedy that such a crime entails.
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So this is the deep background as to why I reached out to Sasha to make this episode with a deeply non-legal cast of mind that I was thinking we consider the recent accusations by South Africa that Israel is committing genocide in Gaza… not assessing if they are accurate or not vis international law… not discussing whether it is or is not genocide… nor whether or not it may be ethnic cleansing rather than genocide, but rather if we look at things from a different angle that of the global implications of the ICJ case for South Africa and how it fits in the countries decades long engagement with Israel and Palestinians. I find this question particularly interesting from the perspective of looking at the current historical moment as presenting alternative orders and alternative disorders depending on one’s perspective and filter bubble. It is also extremely interesting to turn the telescope the other way around and look at what the case tells us about South Africa’s role in the world rather than Israel’s…. and how it will be affecting SA domestic politics and international profile.
Share more info about Genocide with those you love this Valentine’s Day:
Lastly, before signing off allow me to share the following video and podcast I was just on that also addresses these themes. It was Episode 1956 of KEEN ON, Andrew talks to me (Jason Pack), co-presenter of DISORDER podcast, about Netanyahu, Hamas, Biden and why he still have faith in the Israeli people to come to their senses and realize that Bibi is a neo-populist disordering charlatan leading them down the garden path. We also discuss why it is so challenging to know what is actually transpiring in intra-palestinian politics.
What chance peace in Israel?
Jason Pack on Netanyahu, Hamas, Biden and why he still have faith in the Israeli people to come to their senses
You can listen on Apple Podcasts here. or click on the video above.