By Riad Othman
At the end of December, the government of South Africa initiated historic legal proceedings before the highest UN court, the International Court of Justice (ICJ) in The Hague: Faced with the catastrophic reality of Israel's war on Gaza, the Republic appealed to the Court to issue several legally binding, so-called provisional measures to stop the killing and dying. The Israeli government and military are violating articles of the Convention on the Prevention and Punishment of the Crime of Genocide, according to the lawyers and representatives of South Africa.
Regardless of its outcome, the proceedings that have been opened are already of historic significance. South Africa, formerly the scene of a brutal, racist apartheid system, is suing one of the closest allies of the USA and the Federal Republic of Germany. In a way, a state of the global South is suing the West. Therefore, the South African initiative is seen as an attack on Western hegemony in certain government circles. They themselves make highly selective use of international law and only push for its enforcement against the villains of this world if they come from the Global South or, as in the case of Radovan Karadžić, Slobodan Milošević or Vladimir Putin, from Eastern Europe.
The German reaction to the court hearings on 11 and 12 January was not long in coming: barely more than two hours after the Israeli side had finished its plea, the German government announced that it would intervene in favour of Israel in the event of a full trial. This is possible because the Court can be supported by external legal opinions in favour of the prosecution or the defence or its verdict can be influenced by such opinions. Although the ICJ has not yet even decided whether there will subsequently be an ordinary trial beyond the currently pending summary proceedings for provisional measures against Israel, the German government has already thrown itself into the breach in favour of its ally. A clear signal to South Africa, the ICJ and the world.
Germany for impunity
"This accusation lacks any basis." In its reaction to the pleadings, the German government not only attempted to anticipate the ICJ's decision on the necessity of a trial, but also levelled the serious accusation of misuse of the Genocide Convention against the South African government: "This convention is a central instrument of international law to implement the 'never again'. We strongly oppose its political instrumentalisation." So 'never again' is not now? Or not when it comes to Israel? In the case of Myanmar and Russia, Germany has – despite the differences between the cases – backed such investigations and proceedings. In any case, the German intervention in favour of Israel is not convincing, reason of state or not. Namibia, where German colonial troops committed the first genocide of the 20th century against the Herero and Nama, has clearly condemned the declaration of support for Israel voiced in Berlin.
Whatever one thinks of the accusation of "genocide" from a legal and political point of view, one merit of the proceedings is that Israel had to officially respond to the allegations of South Africa's 84-page, thoroughly researched submission before a proper court. The fact that Israel had to face the allegations in a courtroom and listen to the other side's presentation for several hours was a first.
Although the German reaction to this is scandalous, it comes as no surprise. It is in line with previous interventions against the International Criminal Court (ICC), which is also based in The Hague, opening investigations against Palestinian militants and Israeli forces on suspicion of war crimes. Even after the Pre-Trial Chamber of the ICC had established in 2021 that the court does indeed have jurisdiction in the occupied Palestinian territories – contrary to Israeli and German claims – the German government publicly objected to this legally binding determination. In doing so, it caused considerable political harm to a central organ of international criminal prosecution. This was not an oversight. In the UN General Assembly, Germany opposed an investigation by the ICJ into the more fundamental question of the legality of the Israeli occupation. This investigation is still pending. In the event of a conviction, all of these proceedings would result in legal obligations for third countries that are parties to the UN Convention or the Rome Statute.
The German government's problem therefore does not primarily seem to be whether the term genocide is appropriate for the Israeli crimes currently being committed in Gaza, but rather that Israel's government must answer for its actions at all and, in case of doubt, be held accountable for the crimes it has committed. The German reactions to the ICJ case or the ICC investigations cannot be interpreted in any other way.
More than 100 days of war
All this while the crimes under international law and the need to prosecute them are obvious. Almost 90 per cent of Gaza's estimated 2.3 million inhabitants have been forced to flee in the last three months, with around 24,000 people killed and over 60,000 injured. Thousands are still buried under the rubble of their homes or shelters they wrongly believed to be safer.
People we know in Gaza have fallen silent, even though they are still alive. The horror that has become part of everyday life has gripped them to an extent they never knew. The poverty and despair into which they have been plunged keep an iron grip on them in places like Rafah, on the Egyptian border, and in Khan Younis, just like on the tens of thousands of refugees who surround them, often with inadequate or contaminated water and one meal every two days. In this war, there is hardly time for proper mourning, and the lack of dignity of the dead, some of whom are buried in mass graves, painfully haunts the survivors.
Meanwhile, Israel has been withholding vital humanitarian aid to the extent so badly needed from the people of Gaza for months. The weeks-long total closure of the enclave at the beginning of the war was only eased when criticism from abroad – including from Israel's allies – was voiced. However, the humanitarian goods that Israel is currently allowing into Gaza are only reaching a fraction of the population. In essence, they do nothing to change the deliberate shortage of basic necessities of life and the impoverishment of hundreds of thousands as a result of the bombing everywhere and the Israeli policy of starvation. Human Rights Watch now speaks of hunger as an Israeli weapon of war and UN experts warn of the life-threatening effects of malnutrition, especially in combination with rampant infectious diseases.
The scope of the aid is not designed mainly to alleviate the plight of the population, but to give the impression to the outside world that Israel is fulfilling its humanitarian obligations. However, anyone who looks at the reality in the Gaza Strip and the corresponding figures can hardly come to any other conclusion than that the conditions created here are intended to encourage people to cross the border to Egypt out of bare necessity. Just as several Israeli politicians, including Prime Minister Benjamin Netanyahu himself, have expressed as a wish or a threat.
After the Second World War, international law was further developed and honed for moments like these. The fact that Germany, of all countries, contributes to undermining the international legal order is a fatal signal. There must be no double standards. Especially not while geopolitical disputes increase and the world is threatened by more conflicts. It is precisely then that international law has to be protected and consistently applied.
