Interweaving with Somdeep Sen: The ICJ’s Investigation of Israel and the Possibilities and Limitations of International Law
Dr. Somdeep Sen
On December 29, 2023, South Africa brought a case against Israel before the International Court of Justice (ICJ) in The Hague, arguing that Israel was committing genocide against the Palestinian population in Gaza. On January 11-12, 2024, the ICJ held public hearings on South Africa’s request for provisional measures of protection for the people of Gaza and eventually ruled that Israel was responsible for taking all necessary measures to prevent “acts of genocide” in Gaza.
The ongoing ICJ case has been the subject of significant debate. To explore the issue further, I reached out to Dr. Somdeep Sen (left), a frequent Weave News contributor and a professor at Roskilde University.
What was your immediate reaction when watching the presentation of South Africa’s initial case against Israel at the ICJ?
In a way, I had expected South Africa to take on a leading role as a global advocate for Palestinian rights in the wake of the ongoing genocide in Gaza. I was in South Africa in late November around the time that South Africa cut diplomatic ties with Israel. I had seen the uncompromising nature of the pro-Palestine activism in the country. There is also the shared history of settler colonialism and apartheid which makes South Africans particularly adept in recognizing settler colonialism when they see it.
Of course, what I wasn't expecting was the feeling of euphoria when watching the presentation of South Africa’s case. Obviously, it was a very competent presentation of the case by an extremely capable legal team. But it also felt like a watershed moment where the South was taking the lead and a moral stance against ongoing crimes against humanity while the West chose to remain on the wrong side of history.
ICJ South Africa v. Israel (Genocide Convention), ICJ, CC BY-SA 4.0, via Wikimedia Commons.
In terms of the Western response, Germany and France have stood out as especially unwilling to subject Israel to even a minimal amount of critical scrutiny, much less take any concrete steps to hold Israel accountable. How do you read the position of those two governments and of European governments in general vis-a-vis the struggle for Palestinian freedom? What is driving the disjuncture between those governments and their people, who seem to be increasingly sympathetic to the Palestinian struggle? Is there any hope on the horizon for a shift in policy?
In a way, we’re witnessing an obvious generational shift which in turn has shed light on an uncomfortable disconnect between the mainstream political elite and young citizens. The latter have come out in droves and very publicly expressed their solidarity with the Palestinian people, while their governments have been reticent to do so. So, one hopes that in the future, this generational shift will eventually lead to a shift in state policy. Here we should also recognize that marginalized and racialized communities in the Global North, which includes Palestinians, have taken the lead in some of these public displays of solidarity. Having themselves been subjected to the violence of the state in its varied forms, they are more astutely aware of its corrupt moral compass.
With regard to countries like Germany and France, we could talk - as many have - about how imperial forces use Israel as an extension of their political sphere in the region. There is, however, a much more uncomfortable reality, namely, that in the Global North, there is very limited recognition of the humanity of racialized peoples. And the reason why they’re able to very conveniently express unequivocal support for Israel despite being witness to the massive levels of Palestinian suffering, is that they are often immune to, or not significantly affected by, the suffering of racialized peoples. In a way, they are expected to suffer. But, as we saw with the collective outrage of the West when it came to the Russian invasion of Ukraine, Ukrainian suffering was seen as unconscionable because they were ‘civilized’, ‘European’ and had ‘blonde hair’ and ‘blue eyes’. [Author’s note: Sen and I discussed this issue previously in Episode #24 of the Interweaving podcast.]
I’d like to go a bit deeper on the significance of South Africa’s intervention here. You mentioned that it could be a watershed moment. Could you say more about that? Will we look back on this case and see it as a key chapter in the decline of Western hegemony? And how does it fit into the ongoing story of the anti-apartheid movement in South Africa and beyond?
As I mentioned, there is the obvious symbolic potency of the South taking an ardent ‘friend’ of the North to task. Then there is South Africa showing the way for how states in the Global South can operate in the international political system and take a morally and ethically grounded political stance that remembers and draws on lessons learned from their own colonial past. Here South Africa is responding to what’s happening in Palestine with a keen eye on its own history. The structures of settler colonialism and apartheid seen in South Africa are very much mirrored in the conduct of the State of Israel vis-a-vis Palestinians. So, South Africa is probably best placed to lead the international call to end settler colonial rule in Palestine/Israel.
In this sense, what South Africa has done could indeed be a key chapter in the decline of Western hegemony. In a way, the untenability of the Israeli position and the position of the West has been self-evident, not just in the ICJ. That said, Western hegemony is deeply entrenched not just in terms of who drives a deeply hierarchical global order but also in terms of the kinds of values and ideologies that have proliferated. So, this decline is hardly going to be straightforward.
One of the lessons of the anti-apartheid struggle in South Africa is that economic pressure can have a significant impact in terms of forcing political change. How confident are you that the ICJ ruling will lead to an increase in meaningful economic pressure on Israel? Can this kind of pressure, organized from below, make up for international law’s notorious lack of enforcement mechanisms?
Absolutely, we have already seen dockworkers and labor unions organizing protests and strikes, often calling for an end to arms sales to Israel. Companies like Starbucks that have been in solidarity with Israel and therefore complicit in the ongoing genocide have seen a dramatic fall in sales thanks to awareness campaigns and protests led by Palestine solidarity and BDS (Boycott, Divestment, and Sanctions) activists. This sort of action fills in the gaps in the enforcement mechanisms of the international legal system. It is also important to remember that as in Palestine today, western powers were similarly lax in their approach to the apartheid regime in South Africa and hesitant to take any definite, punitive action. It was these sorts of measures led by the civil society that pushed apartheid South Africa into isolation. I feel that we would have to follow a similar strategy when it comes to the State of Israel.
Meanwhile, the ICJ is continuing its work. As we complete this interview, the Court is beginning a new round of hearings addressing the post-1967 Israeli occupation. Will these kinds of legal efforts be able to make a dent in the structures of Israeli impunity?
I would like to believe that the ICJ hearings are the start of the end of the structures of impunity that the State of Israel has enjoyed. Undoubtedly, the ICJ proceedings have played a role in further shaping public opinion globally, to the detriment of Israel. Realistically, however, we have to interrogate where the foundations of these structures of impunity are situated. They have never been located in South Africa, Brazil, Bangladesh or Bolivia. They are situated in places like Washington and London. Unless we see the foundations crumbling in the halls of political power and government in these places, we cannot hope for an end to Israel impunity in a substantive way.
