27th Feb 2024


Understanding EU's silence on ICJ Gaza 'genocide' case

  • Some EU officials fear that the war in Gaza will cause further damage to geopolitical relations between Europe and Africa (Photo: R Boed)
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While the legal tussle between Israel and South Africa over Pretoria's claims to the International Court of Justice in the Hague that Israel's military assault against Gaza amounts to "genocidal intent" against the Palestinian people has intensified the international community's divisions on the war, the EU has been conspicuous by its silence.

In presentations on 11 January, lawyers for the South Africa government presenting the case accused Israel of committing genocide in Gaza in violation of the 1948 Genocide Convention. Israel has described the allegations as a "blood libel", describing their military actions which have so far killed more than 23,000 people in Gaza as an act of self-defence following the 7 October terrorist attacks by Hamas that killed some 1,200 Israelis and seized more than 200 hostages. Israel's military response has so far claimed more than 23,000 lives.

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Some EU officials fear that the war in Gaza will cause further damage to geopolitical relations between Europe and Africa that have already been strained by the fallout from Russia's invasion of Ukraine. Unlike Germany, the US and the UK, all of whom have rejected South Africa's case, the EU has remained silent on the ICJ case so far.

Namibia has denounced its former colonial ruler Germany's decision to "explicitly reject" the accusations of genocide, with president Hage Geingob stating Germany could not "morally express commitment to the UN convention against genocide, including atonement for the genocide in Namibia" and support Israel, which has intensified the pressure on Brussels to stay out of the case.

"The German government is yet to fully atone for the genocide it committed on Namibian soil," added Geingob.

During a debate in the European Parliament on Tuesday (16 January) on the humanitarian situation in Gaza, Belgian foreign minister, Hadja Lahbib, whose government holds the six month EU Council presidency, refused to be drawn on the legal proceedings.

"The EU cannot be a party to or intervene in a contentious case before the ICJ," Lahbib told MEPs, adding that the bloc was "firmly committed to the rules-based international order."

Only The Left, plus Slovenia

The parliament's Left group is the only faction to unequivocally support South Africa's case. In resolutions on Gaza that will be voted at the parliament's plenary session in Strasbourg this week, the Socialists & Democrats, liberal Renew Europe and the Greens "take note" of the case, while the centre-right European People's Party does not mention it.

EU divisions on the war in Gaza are not new. At their pre-Christmas summit in December, EU leaders failed to agree on a joint approach to the war.

"I'm supposed to represent a common position, but there is no common position," said EU foreign affairs chief Josep Borrell ahead of the summit.

Slovenia is currently the only EU state to have publicly backed South Africa's case.

"This is a very broad spectrum of alleged violations that have been committed in the region for decades and whose horrific consequences are still visible today. In the light of recent events in Gaza and the West Bank, Slovenia, as one of the few EU countries, has decided to actively participate and present its views in these proceedings before the International Court of Justice, which has been asked to give an advisory opinion," said Tanja Fajon, minister of foreign and European affairs, at a press conference last week.

Similarly, few African states have made public statements on the case — although the Organisation for Islamic Cooperation, whose 57 members include 26 African states, has backed South Africa's suit.

However, it is the BRICS group (Brazil, Russia, India, China and South Africa), which expanded to include Ethiopia, Iran, Egypt and the United Arab Emirates last year, that has been the most vocal in criticising Israel's response to the Hamas attacks.

Though the BRICS have not formally backed South Africa's case en masse, the chair's summary of a November BRICS meeting on the Middle East, chaired by South African president Cyril Ramaphosa, stated that "the acts of violence against the Palestinian and Israeli citizens were condemned, including war crimes, indiscriminate attacks, and the targeting of civilian infrastructure" and called for the "immediate and unconditional release of all civilians who are being illegally held captive."

It also condemned the military assault against Gaza which "constitute grave breaches of the Geneva Conventions and war crimes and violations under International Humanitarian Law."

That statement paved the way for South Africa to challenge Israel in court first at the ICC and then at the ICJ.

Though South Africa's governing African National Congress, particularly former president Nelson Mandela, had close relations with the Palestine Liberation Organisation (PLO) and its then leader Yasser Arafat during the Apartheid era and its liberation struggle, the case has been taken seriously by Israel, whose legal team is headed by British barrister professor Martin Shaw and includes former Supreme Court chief Aharon Barak.

In the meantime, South Africa's nine-person legal team, headed by Cambridge University don, veteran international law expert John Dugard, a former United Nations rapporteur on Palestine, has received praise for the quality of its presentation.

University of Cape Town professor, Tim Murithi, has described the case as "a significant judicial test to the functionality of the international multilateral system"

Though the chances of the ICJ finding that Israel is guilty of "genocidal intent" are small, if the court agreed to grant "provisional measures" to demand a ceasefire, that would have profound implications for both Israel and to what Dugard has referred to as the illusion of a "global rules-based order".


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