February 1, 2024
From Socialist Project

Martin Lukacs: Welcome to The Breach Show, featuring sharp analysis on politics and social movements in Canada. I’m your host, Martin Lukacs, and today we’ll be talking about the International Court of Justice’s (ICJ) historic ruling ordering Israel to prevent its forces from committing genocide in Gaza. 

Last month, South Africa initiated proceedings at the United Nations’ top court accusing Israel of engaging in acts that are “intended to bring about the destruction of a substantial part of the Palestinian national racial and ethnic group.” Their 89-page application was meticulously damning. 

On Friday, the ICJ came back with an initial decision. At this stage, the court wasn’t determining whether or not Israel is guilty of the crime of genocide. It was examining whether it could be plausibly accused of that. And the court found that indeed it is plausible. And so South Africa’s case will move ahead, though it could take several years. 

Meanwhile, the court also ordered several provisional measures, including that Israel must prevent a genocide, prosecute those Israeli officials inciting violence, allow aid to enter Gaza, not destroy evidence of any of its crimes, and report next month to the ICJ. 

Groups in Canada are already pointing out that for the Canadian government to comply with the ruling, it would need to end all weapons exports to Israel and reassess its diplomatic support for Israel’s actions.

Our guest today, Mark Kersten, is going to help us take a dive into the meaning of this initial decision and the Canadian dimension. In a moment when it seems like everyone on the internet has overnight become an expert in international jurisprudence, Mark is actually the real deal. He’s an assistant professor of criminal justice at the University of the Fraser Valley in British Columbia, who has written extensively about the International Court of Justice. He’s also a fellow of the Montreal Institute for Genocide Studies. Mark, thanks for joining us.

A crowd watches the announcement of provisional measures outside the International Court of Justice on Friday. Credit: Danya Chaikel/Twitter

ICJ decision is ‘a mixed bag’

Mark Kersten: Thanks for having me and thanks for covering this case in such great depth. It’s pressing and it’s important.

Lukacs: You’ve been up, I understand you’ve been up since like 4 a.m. Pacific time, watching the ruling being delivered and you’ve had a full day of media interviews.

Kersten: Yeah, it’s been wild, but you know, I always think about my younger self. And if five years ago, I told that younger version of myself, “Hey, you’d be up at 3:30 in the morning watching this incredible court case and this important court case and then have the opportunity to share your views on it with Canadians,” I’d take that any day.

Lukacs: Your impressively composed insta-reaction at around 5 a.m. according to a tweet that you wrote on Twitter or X, was that the decision was a quote, “mixed bag.” Is that still how you feel a few hours on? Give us your summary of the decision.

Kersten: Yeah, I do think it is a mixed bag, at least when we’re thinking about those preliminary or provisional orders that were put forward. So in a sense, everyone got, all of the parties got something out of this, no one got everything. So obviously, the biggest thing that South Africa had sought was an order from the International Court of Justice for Israel to agree to a ceasefire or to implement a ceasefire. And it did not get that. But at the same time, South Africa did get a number of other provisional measures, including requiring Israel to allow sufficient humanitarian relief into the Gaza Strip. And as you noted from the top, Israel has to prevent or avoid any acts that could be genocidal, including things like killing and starvation.

South Africa’s ambassador to the Netherlands Vusi Mandonsela presents at the International Court of Justice. Credit: International Court of Justice

Now, when I kind of digested the provisional orders a little bit, I came to the conclusion and also reading some other reactions that if you take those two provisional measures together—if you take, “You can’t commit genocidal violence or acts that could be genocidal,” with, “You have to allow in enough humanitarian relief to stave off starvation”—that’s not a ceasefire, but it has to mean that there would be a reduction of hostilities. Because you can’t allow sufficient humanitarian relief in if there’s an ongoing bombing campaign with the intensity that we’ve seen over the last few weeks.

So, I think it is a mixed bag. Where Israel clearly lost and unequivocally lost is that they wanted the case to be dismissed from the outset. They wanted it not to go forward. And it took me a little bit of time because I was so consumed with these provisional measures to realize, wait a second, the most remarkable thing about this case is the first finding that the International Court of Justice has announced that there is a plausible case that Israel’s conduct in Gaza constitutes genocide. And again, thinking about who I was not five years ago, but a month ago, or who my colleagues were a month ago, that was not something anyone thought was possible.

Lukacs: There were so many Wise Men and Women of Twitter who were just a few days ago saying, “There’s no way that we’ll get any kind of positive decision from the ICJ. It’s rigged from the start. The United States will put too much pressure on the various judges.” Those people are a lot quieter today.

Experts did not expect a ceasefire order

Lukacs: I’m curious to parse a bit more this issue of the non-ceasefire call. Some have been lamenting that they didn’t explicitly call for it. Others, like the South African foreign minister, said that the ICJ by telling Israel to prevent genocide is implicitly or de facto calling for a ceasefire. I found it interesting that here in Canada, outlets like the National Post were using the lack of an explicit ceasefire call to run headlines spinning the decision as quote, “Top UN court rejects South Africa’s request to halt war against Hamas,” which seems like quite a brazen distortion of what the decision was. One of my understandings is that because South Africa didn’t actually ask the court to specifically rule on the legality of Israel’s military operations, it was highly unlikely that the ICJ in any case was going to call for the operations to stop. What’s your assessment of that?

Kersten: No experts that I trusted that were watching this thought there would just be this unilateral ceasefire ordered on Israel, in part because as you alluded, I think there’s a recognition among the judges at the International Court of Justice that you can’t request a unilateral ceasefire when Hamas would still issue rockets and then you would be violating international law by not responding to the rockets.

It goes back to this question of self-defence and the law of self-defence is Israel doesn’t have to accept rockets from Hamas. No one’s claiming that. People are claiming that the ceasefire should hold on both sides because lives would be protected, including the hostages held by Hamas.

But the right to respond to Hamas rockets is just distinctly different than setting up mines underneath universities to demolish them into smithereens or to indiscriminately bomb refugee camps, which at least creates the presumption that war crimes have been committed. So in a sense, I don’t think anybody expected or very few people I know have expected a ceasefire because of that.

I think we need to see the ICJ as only one part of a larger effort that includes the vast, vast majority of states at the United Nations voting for a ceasefire. So, [there is] political and diplomatic pressure. And there are really just a couple of holdouts, including states like Canada, where [they] actually don’t think that the lives of Palestinians deserve to be protected through a ceasefire.

Canada is one of the last standing countries doing that and whether or not that changes, we’ll see. But, I don’t think anybody should rightfully have expected a ceasefire for those reasons to be ordered.

If Israel ignores orders, ‘it’s pulling a Putin’

Lukacs: So the ICJ’s orders are legally binding, but a lot’s been made about how there isn’t an enforcement mechanism. The UN Security Council can enforce it, but we all know the U.S. sits on the council and vetoes practically everything that’s critical of Israel. So what’s the point, some detractors say?

Kersten: Yeah, it’s an obvious question, and it’s a question that’s levied all the time with international law because so much of it is not enforceable. Of course, it’s important to note that the orders from the International Court of Justice are legally binding. It’s just the International Court of Justice doesn’t have a police force, so it can’t go out and enforce them. So what typically would happen if this was a normal world of ours and one that abided by a rules-based system, is the UN Security Council would enforce the decisions by the ICJ. Rightly noted.

I think the first thing you can expect is that the United States will veto any effort to enforce those measures because the United States has vetoed every single independent and partial international mechanism with any power to investigate—let alone prosecute—international crimes committed in Palestine. So, I think there’s a tendency to end the story there and people will say, “Oh, okay, well then international law is dead.” “International law is pointless.” Or, “Nothing is going to change.” And I don’t think that’s the case.

So, the state that has most wantonly disregarded the ICJ’s orders in a genocide case is Russia. And Ukraine brought Russia to the ICJ over alleged genocide. And the International Court of Justice issued a number of provisional measures in that case, including requiring Russia to stop its military operations in Ukraine. And that was back in March 2022.

So, obviously, Russia was like, “No, I’m not doing that,” and has continued to not only bomb and attack Ukraine but also commit a whole series of mass atrocities in Ukraine. Now, that’s really interesting. And in a sense, because it was Vladimir Putin’s Russia that has so wantonly disregarded international law and its obligations to the ICJ, I think that actually raises the stakes for a state like Israel because if it wantonly disregards the orders of the International Court of Justice, then it’s basically pulling a Putin. It looks like it’s in the same basket of states that treat international law and the World Court with utter suspicion and disregard.

I don’t think that’s something that Israel wants to do. Indeed, so far we can see from the fact that Israel did not ignore this case. It showed up. It presented its side, which I didn’t find particularly compelling for the most part, but it presented its side. It didn’t just disregard or attack the ICJ only. It participated in proceedings. I think what you should take from that is Israel’s extremely concerned about this case, and it wants to win it as a matter of law, not just as a matter of rhetoric.

Foreign Affairs Minister Mélanie Joly speaks at a meeting in Brussels on Nov. 28, 2023. Credit: Mélanie Joly/Twitter

Canada has changed its position on ICJ’s relevance

Lukacs: Let’s talk about where Canada fits in. The ICJ ruling, as I understand it, imposes legal obligations on all signatories to the Genocide Convention, including the U.S. and Canada. Canada has been very slippery about taking a position in the lead-up to this decision. They stopped short of saying that they would respect the decision. I think Trudeau had this to say earlier this month: “Our wholehearted support of the ICJ and its processes does not mean we support the premise of the case brought forward by South Africa.” Very classic Trudeauvian speaking out of both sides of his mouth.

Kersten: The left-hand doesn’t know what the right hand’s gonna do.

Lukacs: Exactly. And then they put out a statement today that appears like it was just cut and pasted from their last one, and also seems to pretend that a decision wasn’t in fact made today. What do you make of it?

Kersten: So, I think there’s a lot of people still trying to navigate what the heck is going on in Ottawa over this ICJ case, because yes, they released that statement. And then like a day later, Evan Dyer of CBC reported [Global Affairs officials] saying that Canada would respect any decision by the ICJ, both at the interim stage and in its conclusions on the merits of whether genocide happened or not.

I think everyone who read that was like, “Well, that should surely appear in today’s statement.” But, then, it didn’t. And you’re right. The statement kind of assumes that nothing really happened, right? It doesn’t say anything about aid and requiring aid to get into Gaza. It doesn’t say anything about the order that Israel must prosecute those inciting violence. It very quickly moves on to international humanitarian law. So the protection of civilians under Geneva Conventions and international criminal law—which is, of course, important—but has nothing to do with the ICJ’s case. But there was one thing that really struck me that I had not previously seen in statements. And I have it here. Canada said, “Canada supports the ICJ’s critical role in the peaceful settlement of disputes.”

Lukacs: What does that mean to us lay people?

Kersten: The reason why that struck me as important is because this past summer, Canada issued a legal filing at the International Court of Justice opposing a case brought by the UN General Assembly in relation to the legal consequences of Israel’s occupation of the West Bank and other parts of Palestine. 

Lukacs: I was going to ask you about this, so it’s great that you brought it up.

Kersten: So, in that statement, if you read their legal filing back in the summer over that case, the impression you get is that Canada does not believe that the ICJ has any role in peace in the Middle East, which is terrible because it’s basically saying international [law] doesn’t matter to peace, which is nuts. So, the fact that they put that statement in again, that Canada supports the ICJ’s critical role in a peaceful settlement of disputes is exactly the opposite of what it said this past summer in relation to the other ICJ case and something that I think probably wasn’t by accident.

Now, of course, there are different people with opposing viewpoints in the Liberal party and a lot of moral injury, I think, in the Liberal party over whether there should be a ceasefire, whether Canada should support the ICJ or the International Criminal Court over its investigations. But I did notice that, and in the statement that was otherwise vapid and not particularly relevant or interesting, it does move the dial. Maybe I’m wrong, but I definitely…took notice of it.

Lukacs: It does seem like it was some sensible policy person or lawyer in the Ministry of Justice who was like, “Wait a second.”

Kersten: Yeah. And, you know, I don’t think there’s a lot of agreement in the cabinet right now over this. If you listen carefully to Foreign Minister Joly’s statements and approach to some of this stuff, it is not the exact same as the PMO.

She creates spaces at times in the way that she discusses these issues around accountability and international law that we have not seen from the prime minister who comes up with weird stuff like, “Palestinians, civilians cannot bear the brunt of justice,” or something like that. It was like, “What do you mean by justice?”

Lukacs: I think he meant justice for Israelis, which is the perversity of that statement, that Palestinians can’t be the collateral of justice for Israelis.

Kersten: Yeah, but then the problem is that justice is violence, right? Because he’s saying that if you’re a target of justice, then you’re a target of bombs. So bombs are justice. Is that Canada’s approach now?

And, of course, this is nothing to say of Pierre Poilievre who has called Trudeau’s position on this incomprehensible, which isn’t entirely wrong, but his position is just reprehensible. I don’t think Pierre Poilievre has figured out yet that Gazans have human rights.

An activist carries a sign in French reading “Thank you South Africa,” at a march for a ceasefire in Paris on Jan. 13, 2024. Credit: Shutterstock

Movements should continue pushing Canada to call for a ceasefire

Lukacs: If Canada were to respect the ICJ decision, what would that look like? Or in other words, what should movements be pushing them to do now to play Canada’s part in this decision?

Kersten: Well, one thing that I think gets regularly lost in the fray is what the genocide convention is even about. So its title is not: “Genocide Convention.” It is: “The Convention on the Prevention and Punishment of the Crime of Genocide.” And every state party has an obligation to prevent genocide wherever it’s happening. And in a case in 2007, the first real genocide case before the ICJ relating to Serbia, the ICJ said something really important. It said, “Look, if you read the genocide convention, it would be crazy to say, ‘We should only do something about genocide once it’s happened and we know that it’s happened.’” You don’t, I mean, that’s nuts. And again, the convention is, its first major word after the word “convention” is “prevention.”

And so what [the ICJ] said is where there’s a serious risk that genocide has been occurring or will occur, all states parties to the genocide convention have a legal obligation to prevent it. And explicitly, those states do not need to wait and indeed should not wait for any legal determination as to whether that genocide has taken place or not.

So in some ways, the question as to whether Canada has the obligation to stop and prevent genocide as much as it can where there’s a serious risk that it is happening. And I’ve said this many times, reasonable people can disagree as to whether the very high threshold of genocide in Gaza has been met or not been met, but you can’t read South Africa’s submissions or have two open eyes and ears and say, “Yeah, there’s zero risk of genocide.” That would be beyond the pale….beyond even a modicum of reason. So because that risk exists, Canada already has an obligation to do something about it. And in my view, morally, ethically, and in line with international law, the only reasonable thing that Canada can do is to call for a ceasefire and to use its influence to push for a ceasefire.

In Myanmar case, Canada argued that starvation is genocide

Lukacs: You submitted a really interesting brief to the House of Commons standing committee on foreign affairs earlier in January after testifying in November, pointing out that in some cases, Canada has played a constructive role with these international bodies, supporting the [International Criminal Court] investigation of Russia’s invasion of Ukraine, also Myanmar’s genocide of the Rohingya.

But its commitment, you wrote, reflects a quote, “remarkable and consistent embrace of double standards,” only supporting justice and accountability for international crimes and human rights violations in some places, for some people, and some of the time.

Kersten: It sounds better when you say it than when I write it.

Lukacs: Break down what you meant by that.

Kersten: Look, I think that our world—for lots of different reasons—is full of double standards. I think it is just a fact of international relations and global politics that only some people get justice and accountability for international crimes, war crimes, crimes against humanity, and genocide in some places, sometimes.

But I think there’s this huge gap between the way that Canada presents itself as fighting against that and the fact that on so many occasions, it actually furthers those double standards. There are two egregious examples of that. Palestine is one, Israel-Palestine, the fact that Canada has never supported an investigation by the ICC and in fact, attacked the International Criminal Court previously for its investigations in Palestine.

And it’s now meandering, non-committal support of the International Court of Justice. So that’s one, and I think it just evokes a clear set of double standards when Canada is doing the exact opposite in relation to Ukraine and indeed in Myanmar. In the Myanmar case over alleged genocide against the Rohingya that you noted, Canada actually said a lot of really interesting and important things. It said, for example, that genocide is not just the killing of people, it’s not just this kind of pageantry of mass murder, it is also starvation.

And so a lot of people have said, “Look, if you wanted to, you could just copy and paste that and put it into a case supporting South Africa,” if indeed Canada wanted to, because the point that South Africa is making is the same. Yes, there are killings, there’s a horrific number of people dead. But I think if you read their filing, the real core central issue is this structural, systemic violence through the siege and the blockade that has led to people dying through things like starvation or otherwise…The second thing that I think exposes Canada’s double standards—and it’s for another conversation some other time—is of course that we have yet to address or remedy the genocide that Canada has committed here against Indigenous Peoples.

A third thing that I’ll mention in case it’s interesting is that Canada’s home to at least 200 perpetrators of international crimes according to the government’s own last estimates. And I believe it’s true…that Canada’s more likely to host an alleged Nazi in Parliament than it is to prosecute anyone in our own courts for international crimes. And if anything else, that’s gotta make someone think, “Well, that’s not okay.”

What to watch for next

Lukacs: So as the world absorbs this decision from the ICJ and various state actors try to spin it in their own ways, what are things we should be looking out for next?

Kersten: So one of the orders that the ICJ put forward is that Israel has to report back to the ICJ in a month on its progress on implementing the other orders. So humanitarian relief, prosecuting and punishing people who incite violence against Gaza civilians or potentially incite genocide and so on and so forth. That’s definitely something to look out for.

The other thing that I think is worthwhile looking out for is the other court in the Hague, which is the International Criminal Court. And the ICC has jurisdiction in Gaza. It has jurisdiction over international crimes committed in Gaza, the West Bank, including East Jerusalem. It has jurisdiction over crimes committed on those territories. It also has jurisdiction over any crimes that nationals of Palestine have committed. So, if Hamas fighters went into Israel on Oct. 7, the ICC can investigate those too, because Hamas individuals are nationals of Palestine. And the clock is ticking, and I think a lot of people are tired of waiting for the ICC prosecutor to finally act and issue arrest warrants. And I think that’s something to watch out for: the ICJ process and the International Court of Justice’s process in terms of determining this case on the merits.

So whether or not genocide has in fact happened or not is still years, probably, in the making. So let’s look out for those reports that Israel has to now file or whether it does file.

And, of course, the broader point that I’ve been trying to make from the beginning, which is whether you think it’s genocide or not, it doesn’t really matter nearly as much as stopping this madness, stopping this violence, stopping these atrocities. The statistics are staggering. Ten thousand kids killed in Gaza. Ten per day, according to Save the Children, losing one leg or both. It’s even hard to talk about this. I talk about these as if they’re legal facts, but they’re not legal facts. They’re kids’ lives. Stop killing kids.

Lukacs: I think we can all agree on that, or at least we should be able to all agree on that.

Mark, thanks so much for summoning the energy after a long day to do this final interview with us and for summing up what I think is an imperfect but powerful victory, a new tool in the struggle against Israeli impunity and an opportunity for movements to bring pressure to bear on the Israeli government. Thanks so much for joining us.

Kersten: Thanks, Martin. Thanks for having me. Thanks for covering this issue regularly. Thanks for holding the media to account. Yeah, it’s been a long day of interviews, but you know what? I get to close this computer and have a beer and let’s not forget that that right now, for so many people, would be the best possible outcome. Maybe not the beer, but at least turning away from the violence that people are suffering and struggling with every day.

CORRECTION: A previous version of this article misstated the title of the Convention on the Prevention and Punishment of the Crime of Genocide.

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