“Genocide is a very difficult thing to actually convict people of, it’s not an easy process because you have to establish a chain of accountability, the crime, and intent as well,” explains Donnchadh MacGabhann, who’s watching developments at the International Court of Justice with keen interest.
He feels the legal definition of what genocide constitutes is outdated and he believes that proving genocide in Palestine will be difficult, unlike what happened in Rwanda 30 years ago or even the Holocaust.
“Here it can be contested a bit by Israelis who’ll say maybe ‘We didn’t intend to do that, we were just attacking Hamas’. So it’s not as clear-cut as people might think.”
Before South Africa accused Israel of genocide in its campaign against Hamas in Gaza, Gambia brought Myanmar (Burma) to The Hague in 2019 levelling similar accusations in relation to the treatment of the Rohingya people.
A point not lost on Donnchadh, is that the killing in Gaza is “still going on”.
“With the Myanmar killing, it had pretty much finished the year before. That’s usually the case. It’s usually already done and dusted, so the trial comes afterwards.”
The Israel-Palestine conflict though is still “evolving” day by day.
Fog of war
“Usually the court will send a fact finder out, and it’s easier in a way when it’s already over because you can collect everything, but this is an evolving situation on the ground in Gaza and it’s hard to see what’s going on a lot of the time. The fog of war, I guess.”
If Israel is “liable” for anything, Donnchadh believes it could be for making “life unbearable” for the Palestinian people.
“They actually blocked access to aid. It’s hard to justify a military purpose for that. What advantage does it give them over Hamas by starving people to death?”
Donnchadh is aware of calls from some political quarters demanding Ireland join South Africa in proceedings against Israel. Ireland did make a referral to the ICJ against Russia in respect of the war in Ukraine and have thus been accused of “double standards” by Sinn Féin’s Matt Carthy.
“It’s quite a serious charge to bring against a nation State,” explains Donnchadh of genocide. “You’re basically accusing them of the worst of the worst international crimes you can commit. Under national law, if you say there is a genocide going on, if you’re party to the convention, then you’re obligated to prevent it. Not that many people are going to be willing to do that with Israel.”
Donnchadh therefore sees the allegation as “pre-emptive” but at the same time “happening in real time”.
“There are loads of countries at war, whether war or ethnic cleansing and lots else going on but they’re not brought forward. I think a matter of fact with Israel and Palestine is that currently it is the centre of attention in global media, so everyone sees it, and part of the narrative is that South Africa is representing the global south against the West in a wider sense.”
He adds: “For a lot of people watching the news it seems so simple: they’re killing innocent women and children who can’t defend themselves, obviously it’s genocide. But that’s not how it works most of the time, and that’s what makes this so interesting.”
