‘We believe in international law, or we don’t’: South African envoy counters claims of moral equivalence in ICC warrant applications

Published in The Hill Times newspaper

Written by Neil Moss

As the Canadian government rejects any equivalence between Israeli and Hamas leaders after the International Criminal Court prosecutor applied for arrest warrants, South Africa’s top diplomat in Canada says the equivalence is in the breach of international law, not who is doing it.

On May 20, International Criminal Court (ICC) prosecutor Karim Khan applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. The warrants have to be approved by the court before they can be issued.

Since the announcement, Prime Minister Justin Trudeau (Papineau, Que.) and his cabinet ministers have repeated the refrain that they respect the independence of the ICC, but that “there is no equivalence between Israel and Hamas—one is a state, the other is a terrorist organization.”

South African High Commissioner to Canada Rieaz Shaik said the equivalence isn’t about the “who,” but about the “what.”

“We shouldn’t seek equivalence with respect to who. We should seek equivalence in respect of what. And the ‘what’ here is the crime against humanity—whether committed in the name of resistance, or whether committed in the name of self-defence. They are still alleged to be crimes [against] humanity or genocide, and those that perpetrate those crimes within the norms of international law should be held accountable for it,” he said.

Shaik said he wouldn’t prescribe what the Canadian government should be doing, but outlined “general principles” to which all should be accountable.

“The first of the principles is whether we believe in international law, or we don’t,” he said. “All nations, all states, all countries, and all individuals with respect to the ICC [are] held accountable for their actions.”

Khan said he has “reasonable grounds to believe” that Netanyahu and Gallant have committed a series of war crimes and crimes against humanity, including willfully causing suffering, starvation of civilians, and intentionally directing attacks against civilians, among others. He announced that he has “reasonable grounds to believe” that Sinwar, Deif, and Haniyeh have committed war crimes and crimes against humanity, including murder, taking of hostages, rape, and torture, among other crimes.

At the same time that Khan is pursuing arrest warrants against the two Israeli and three Hamas leaders, South Africa has been pursuing an action at the International Court of Justice (ICJ) against Israel over alleged violations under the Genocide Convention.

The ICC pursues personal responsibility for breaches of international humanitarian law, while the ICJ has a mandate for state responsibility.

In January, the ICJ provisionally ruled that Israel had to prevent genocide, but didn’t set out if it was committing genocide in Gaza. In a follow-up ruling last week, the ICJ ordered Israel to stop its offensive in Rafah. On May 26, an Israeli strike in Rafah killed “at least” 45 displaced Palestinians sheltering in a camp, and injured hundreds of others, the BBC reported, citing the Hamas-led Gaza health ministry. Israel’s attack came soon after the first Hamas missile attack launched on Tel Aviv in months.

Foreign Affairs Minister Mélanie Joly (Ahuntsic–Cartierville, Que.) told the House of Commons on May 27 that the “killing of innocent civilians is completely unacceptable,” asserting that the ICJ decision is binding. In a post on X, Joly also reiterated that “Canada does not support an Israeli military operation in Rafah.”

“The level of human suffering is catastrophic. That is why we need an immediate ceasefire,” she said.

Shaik said the central question is whether Israel has the right to “exceptionalism.”

“And of course, clearly the answer to that question is no,” he said. “There is no right of any state to exceptionalism. There is simply a demand of international law that holds all states—and in the case of the ICC, individuals—accountable for their actions that have been perpetrated in the category of crimes against humanity. So international law must be pursued.”

He said the global community needs to pursue an international order in which everyone is equally held accountable for their actions.

As a signatory to the Rome Statute, Canada is bound to arrest any of the five accused individuals if they are within its borders, and if the ICC decides to issue the warrants.

Joly didn’t answer whether Canada would act on an arrest warrant for Netanyahu or Gallant if they were within its borders, calling the situation “hypothetical,” according to a CBC report.

South Africa was faced with global pressure to act on an ICC arrest warrant against Russian President Vladimir Putin during a BRICS Summit in Johannesburg last August, but the Russian leader ended up only appearing at the meeting virtually.

“Through our diplomatic channels, we did indicate that if we are confronted with a situation where we have to execute an order by the court, we will be put in a very difficult position to execute that order,” Shaik said. “I think all countries and all signatories who are bound by the convention will have to execute the demand of the court. And, of course, it puts many countries in a difficult position.”

He said if Canada were to face a similar situation, it would have to “apply its mind” to deal with a potential visit, remarking that he is comfortable that Canada has the “diplomatic finesse” to deal with such a situation.

In 2015, South Africa chose not to uphold an ICC arrest warrant against then-Sudanese president Omar al-Bashir when he visited the country for an African Union summit.

Conservative deputy leader Melissa Lantsman (Thornhill, Ont.) called Khan’s application for warrants targeting Netanyahu and Gallant “outrageous.”

“The false equivalency drawn between the elected leaders of a democracy and the dictatorial genocidal Hamas terrorists should be a wake-up call to all western countries as a willful distortion of history,” she told the House Chamber on May 22, remarking that it is “even more appalling” that Trudeau “opted against taking a clear stance in rejecting it.”

“He should have the courage to denounce the warrant, and state unequivocally what side Canada is on,” she added.

NDP Leader Jagmeet Singh (Burnaby South, B.C.) said on May 21 that the application was an “important first step towards justice for Palestinian and Israeli victims,” calling on the Liberal government to adhere to an NDP opposition motion that it backed in March, which called for Canada to support the work of the ICC and ICJ.

The Liberal caucus is divided on the issue—as it has been throughout the Israel-Hamas war.

Liberal MP Anthony Housefather (Mount Royal, Que.), president of the Canada-Israel Interparliamentary Group, told reporters on May 21 that the application “discredits the ICC,” and that there is “no way to place the democratically elected leaders of Israel on an equal playing field of the terrorist leaders of Hamas.”

Liberal MP Salma Zahid (Scarborough Centre, Ont.), chair of the Canada-Palestine Parliamentary Friendship Group, posted on X that Canada “must support the legal process” of the ICC.

University of the Fraser Valley criminology and criminal justice professor Mark Kersten, an expert on international law, called the Canadian government’s comments about the ICC warrant application “appalling and duplicitous.”

He said that Canada isn’t respecting the independence of the ICC if at the same time it is suggesting that Khan should have done something differently.

Kersten said there is no test of equivalences when Khan does his work.

“It’s not in the mandate of any independent and impartial process anywhere. It doesn’t happen in Canada, nor does it happen at the ICC,” he said.

“What the ICC prosecutor does is have his investigators collect evidence, and figure out whether any particular individual based on that evidence should be prosecuted for international crimes. And when that evidence points to the fact that yes, they should be, he should absolutely issue arrest warrants,” Kersten said.

He said those who are citing an “equivalency” are only seeking arrest warrants against Hamas, but not for any Israeli officials if there is wrongdoing despite what the evidence shows.

“I think they’re just talking about full-blown impunity for Israeli leaders,” he said.

Former Canadian ambassador to Israel Jon Allen said Canada should be equally as supportive of the ICC now as it was when the court sought to arrest Putin.

“The Canadian government should have been as equally supportive without any suggestions that somehow there was a moral equivalence between the decision to seek arrest for Hamas and Israel,” he said. “For Canada to somehow suggest because these two requests for arrests were announced at the same time that there is some kind of moral equivalence is beyond me.”

Allen said Canada should only say that it trusts the independence of the ICC.

“There’s no moral equivalence. These are determinations of a breach of international humanitarian law in the middle of a conflict. Both sides can breach international humanitarian law, whether one is a terrorist group or one is a state party, you’re still obligated under IHL [international humanitarian law],” he said.