One Year Later: Seven Big Lessons from South Africa's Genocide Convention Case Against Israel

Biden's phony "ceasefire" rhetoric was used to distract from ICJ orders. What's needed is strategic moves to get the General Assembly to use Uniting for Peace to put concrete pressure on Israel.

Ramy Abdu of Euro-Med Human Rights Monitor: “This is how the story of Kamal Adwan Hospital ends… Israel arrests the medical staff of Kamal Adwan Hospital in northern Gaza. Merry Christmas.”

On December 29, 2023, South Africa invoked the Genocide Convention against Israel at the International Court of Justice.

To some people, this came out of the blue.

Some are aware there was a concerted effort to that end through the fall of 2023 which involved myself and others.

Few are aware that the story goes back further.

And tragically few are aware that there are clear steps that can be taken now to give it force which the US government has insidiously undermined.

In 2000, Prof. Francis Boyle published the piece “Palestine Should Sue Israel for Genocide before the International Court of Justice.”

Boyle reiterated such calls periodically, particularly when Israel would decimate Gaza.

During one such assault — in 2014 — on Gaza, the late Michael Ratner of the Center for Constitutional Rights did a commentary for The Real News — "UN's Investigation of Israel Should Go Beyond War Crimes to Genocide" — which coincided with some of Boyle’s arguments.

I then did a piece: “A Global Legal Intifada: If It's a Genocide in Gaza, then Invoke the Convention to Stop it” which quoted Boyle, Ratner, as well as Prof. John Quigley.

In that piece — from 2014 — Boyle laid out the legal strategy that South Africa began implementing a year ago:

Immediately institute legal proceedings against Israel before the International Court of Justice in The Hague on the basis of the 1948 Genocide Convention, request an Emergency Hearing by the Court, and obtain an Order by the Court against Israel to cease and desist from committing all acts of genocide against the Palestinians. This Order will then be transmitted by the Court to the United Nations Security Council for enforcement as required by the United Nations Charter.

But Boyle also outlined a second part of the strategy which has not yet happened:

In the event the United States were to exercise a veto at the Security Council against the enforcement of this World Court Cease-and-Desist Order against Israel, you can then invoke the General Assembly’s Uniting for Peace Resolution of 1950 in order to have the World Court Order turned over to the United Nations General Assembly for enforcement against Israel. Under the terms of the Uniting for Peace Resolution, the General Assembly can recommend enforcement measures against Israel to every state in the world that would be lawful for them to carry out. In addition, the U.N. General Assembly could also admit Palestine as a full-fledged U.N. Member State. 

The General Assembly should have passed a resolution using Uniting for Peace with teeth to enforce the Court’s orders but it hasn’t.

Specifically:

On May 25, the ICJ issued an emergency order for Israel to stop its invasion of Rafah.

On May 28, Reuters reported the Algerian government, which is on the UN Security Council, reportedly drafted such a resolution, which a properly functioning Security Council would have passed.

But on May 31, Biden made a phony proclamation that Israel had agreed to a ceasefire.

I objected to all this in real time, see my June 4 piece for example: “The US Government is Using ‘Ceasefire’ Rhetoric to Try to Obstruct International Law in Gaza.”

The Security Council then ridiculously adopted a US resolution on June 10 which made no mention of the Court orders and gave its blessing to the phony “ceasefire proposal”. The Russian representatives talked about how phony the resolution was, but didn’t veto it, allegedly because the Algerians (who voted for it) and other Arab states asked them not to.

On June 25, when I was finally able to get a question in at the State Department about this, I highlighted the chicanery, see video.

So the US government effectively assaulted the ICJ orders and international law. And most critics of Israel were clueless about many of the machinations.

Still, South Africa (as well as Nicaragua in its case against Germany’s backing of Israel’s genocide), can be urged to push for additional orders. Other nations could do likewise.

And countries like Algeria (which becomes president of the Security Council in January) should be pushed to get proper resolutions through the Security Council to implement those orders. The US government would obviously veto such resolutions, but its criminality should be exposed more and more.

Critically what’s needed is for the UN General Assembly to pass resolutions using Uniting for Peace with teeth to make Israel stop. These could include an arms embargo, economic sanctions, even the use of a peace keeping force.

(I should note that the South Africa case is continuing at the ICJ, but could take years. Little is stopping requests for more emergency orders, like the one in May that the US stopped from being implemented. And the General Assembly has passed other resolutions, but they so far are lacking in actual teeth.)

Lessons:

• Ceasefire rhetoric is not just insufficient, it has been used as a block to implementing international law and actual peace. Many were duped by Biden’s rhetoric. People need to scrutinize government claims much more than they currently are.

• This is a long term struggle. It was at least 23 years between when Boyle proposed that the Genocide Convention be invoked against Israel and that actually happening.

• But a sense of urgency is needed. If a country had invoked the Genocide Convention in 2014 for example, a great deal of suffering may have been avoided.

• Don’t dismiss ideas because they seem to push the conventional wisdom. Indeed, it’s probably only ideas that do push the envelope that stand much of a chance of making a real difference.

• Many should have pushed for a country invoking the Genocide Convention in 2023, and before, and didn’t. Now, some of these same alleged critics of Israel — often with the biggest megaphones — are failing to focus on getting the General Assembly to pass Uniting for Peace resolutions with teeth. This includes Arab governments and others.

• Denouncing Netanyahu, or Biden or Trump is easy. Progress was made here because people got the South Africa government — which was saying good things — to actually act on them. As I documented, in the fall of 2023 — and in 2014 — many countries were calling Israel’s carnage genocide, but were failing to act on that rhetoric and invoke the Genocide Convention. Rhetoric without action is worse than hollow.

• People around the world now need to be pushing governments that are saying the right things to take maximal concrete steps to stop Israel’s genocide. This should include protests at the UN as I recently argued: