South Africa’s legal effort to declare Israel’s actions ‘genocidal in character’ poses dilemma for Canada

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Canada faces an awkward political dilemma as it weighs its response to South Africa’s bid to take Israel to the International Court of Justice for its military actions in Gaza, legal experts say.

South Africa said on Friday it is applying for an urgent order to declare Israel’s offensive in Gaza – including its bombing campaign and siege of the Palestinian territory – is “genocidal in character” and a violation of the 1948 Genocide Convention.

Its application is supported by an 84-page document with legal arguments and evidence of Israel’s actions in Gaza. The ICJ, based in The Hague, is the highest United Nations court, although its rulings are sometimes ignored.

South Africa, a strong supporter of the Palestinian cause and a frequent critic of Israel, is asking the ICJ to issue orders for the immediate halt of Israel’s military campaign in Gaza and the restoration of sufficient supplies of food, water, medicine and other humanitarian aid.

The Canadian government has often intervened at the same court in support of human-rights cases against the governments of Myanmar, Syria, Iran and Russia over the past two years. As a supporter of Israel, it is likely to oppose the South African application, but will struggle to explain the apparent inconsistency, legal analysts say.

In a submission to the court in the Myanmar case last month, for example, Canada and five other Western governments argued that the evidence of genocide can include “a violent military operation triggering the forced displacement of members of a targeted group” and can also include “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the induction of essential medical services below minimum requirement.”

It also argued that the scale of the deaths is “merely a starting point” in considering the intent of atrocities, and the victimized population should not be limited to those who are killed.

All these arguments could equally apply to Israel’s actions in Gaza, and Canada will appear hypocritical if it ignores the similarities, according to Mark Kersten, an assistant professor of criminal justice at the University of the Fraser Valley who specializes in international justice issues.

“The parallels are blatantly obvious,” Dr. Kersten said.

He predicts that the Canadian government will object to the South African application to the ICJ. “Canada will oppose any attempt to use international law to hold the Israeli government to account over any type of international crime,” he said.

“I don’t believe the Canadian government even studies the validity of legal applications like this to the ICJ or the moral imperatives of holding perpetrators of international crimes to account,” he said. “It will immediately position itself to protect Israel from scrutiny under international law, and then find some legal arguments that fit the bill.”

Alex Neve, an international human-rights lawyer and a senior fellow at University of Ottawa’s Graduate School of Public and International Affairs, said Canada has often argued for justice and accountability to counteract the impunity that shields countries responsible for mass-atrocity crimes. “However, that principled approach does not stand when it comes to Israel,” he said.

Canada has already opposed the International Criminal Court’s investigation into alleged crimes by Israel in Gaza, and it will face pressure to take the same stance on South Africa’s application to the ICJ, but it should resist that pressure, Mr. Neve said.

The South African application raises “legitimate and serious questions” under the Genocide Convention, especially the obligation of all countries, including Canada, to prevent genocide, he said.

“UN experts and legal scholars around the world have laid out an authoritative analysis that makes it clear that is precisely what is at stake in Gaza, right now.”

Taking the Gaza issue to the ICJ would remove it from “politics and social media mudslinging” and would put human rights first, Mr. Neve said. “Bodies such as the ICJ, guardians of the rule of law in our world, absolutely should be at the forefront of that effort.”

Palestinian officials said they welcomed the South African court application and agreed with its conclusions. The Organization of Islamic Cooperation, with 57 member states, also praised the South African application.

The Israeli government, in a statement by its Foreign Affairs Ministry, said the international court should reject the application. “South Africa’s claim lacks both a factual and a legal basis, and constitutes a despicable and contemptuous exploitation of the Court,” it said.

Even if the court rules in favour of the South African application, there is no assurance that its ruling would be followed. In 2022, the court ordered Russia to halt its military campaign in Ukraine, but the order was ignored.

Israel’s assault on Gaza has killed more than 21,000 people, Palestinian health officials say. The war began on Oct. 7 when the Gaza-based Hamas militant group launched a cross-border raid that killed about 1,200 Israelis and abducted 240 hostages, by Israel’s count.

In its full application, South Africa includes a nine-page compilation of statements by Israeli officials that, it says, show evidence of intent to commit genocidal acts in Gaza or an unwillingness to prevent them.

While the ICJ has not scheduled a hearing on the application yet, South Africa is asking for an urgent hearing this week.