Dáil Éireann Debate, Thursday - 7 March 2024
7. Deputy Gary Gannon asked the Tánaiste and Minister for Foreign Affairs if the Government has made a decision on if and when Ireland will support South Africa's case against Israel in the ICJ, which alleges that the latter is committing genocide in Palestine. [11134/24]
View answer12. Deputy Matt Carthy asked the Tánaiste and Minister for Foreign Affairs in light of his statement of 30 January last, if he has received legal analysis of the genocide convention, the court's provisional measures order and consultation with other contracting parties regarding the case taken by South Africa against Israel; and if he has concluded his urgent consideration in respect of to the filing of a declaration of intervention. [10949/24]
View answerHas the Government made a decision on if and when Ireland will support South Africa's case against Israel at the ICJ? On 30 January, the Tánaiste informed the Dáil that an urgent legal analysis of South Africa's case to the ICJ had commenced. Has that analysis been concluded? What was the determination in that regard? I would like to know what the Government is going to do.
I propose to take Questions Nos. 7 and 12 together.
I have been closely monitoring developments in the case taken under the 1948 Convention on the Prevention and Punishment of Genocide, the genocide convention, by South Africa against Israel at the ICJ. I welcomed the court's January order in this case, particularly the direction that Israel take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance in Gaza. Ireland has been consistent in calling for this since the start of the conflict. Israel filed a report to the court on foot of the order on 26 February, but this has not been made public.
My officials continue to analyse the legal and policy aspects of this case. We are in contact with South Africa and other like-minded partners in that regard. As stated previously, however, the Government will not make a final decision on intervention until after South Africa, as the applicant state, files its written memorial. The reason for awaiting the filing of the applicant state's memorial is to enable third states to make informed decisions on whether to intervene, based on a complete as possible understanding of the matters in question before the court. This grants a state considering intervention the time to carry out a detailed and rigorous analysis of those matters in advance of intervention. In turn, this means that any intervention is more likely to be permitted or be deemed admissible by the court, depending on the legal basis of the intervention. It also means that interventions are more likely to be relevant, comprehensive and helpful to the court in its consideration of the legal issues before it.
Let me make it very clear that this is exactly what we did in the Ukraine v. Russia case, which was also taken under the genocide convention. Our intervention in that case was deemed admissible. No state has ever successfully intervened in an ICJ case before the applicant filed its memorial. Only one state, namely, Nicaragua, has requested permission to intervene in the South Africa v. Israel case to date. The court has not yet decided upon that request. It is important to note that when third states seek to intervene in ICJ cases, they do not join one side or another. Rather, they submit a statement that asserts their interpretation of the provision of the convention at issue, or they must identify a specific legal interest affected by the proceedings.
Beyond the case taken by South Africa under the genocide convention, Ireland has actively supported other efforts to promote respect for interactional law and accountability for violations of international humanitarian law across the occupied Palestinian territory. On 22 February, Ireland was represented by the Attorney General at public hearings relating to the request by the UN General Assembly for the ICJ to give an advisory opinion on the legal consequences arising from Israeli policies and practices in the occupied Palestinian territory. The Attorney General provided Ireland's legal analysis of the Israeli occupation of the West Bank, concluding that Israel has violated international law.
Separately, the International Criminal Court, ICC, is investigating potential war crimes and crimes against humanity committed in the occupied Palestinian territory since 2014, on foot of a referral made by Palestine in 2018. The ICC prosecutor has confirmed that this includes the events of October 7 and all actions since that date. It is vital that the ICC is given the support it needs to carry out its investigation effectively. The court has made it clear that it is facing severe financial constraints. Ireland has committed additional voluntary funding to the ICC of €3 million to assist its work across all situations, including in relation to Palestine. I met with ICC prosecutor Karim Khan at the Munich Security Conference and discussed the investigations under way by his office, including in respect of Palestine, Ukraine, Afghanistan, Myanmar and Sudan.
My question pertains specifically to South Africa's case at the ICJ. I welcome that the Attorney General represented Ireland very well at the public hearings, but my question specifically relates to the process by which we will align ourselves with South Africa's case. I would like to understand the work that has been undertaken to this point. How many people, for example, are working on this matter in the Department of Foreign Affairs, and what is the timeline regarding our announcement concerning an intervention? Why are we leaving South Africa with the sole responsibility? We also have a responsibility in view of the fact that we also signed up to the genocide convention. Nothing is stopping us from initiating our own case, which the court, if it chose, could align with South Africa's case. It was built very strongly on the area of the Israeli Government's rhetoric. We would also have particular foreign affairs-related expertise concerning many factors. One achievement of the Tánaiste's Department has been the banning of the use of large-scale munitions in urban environments. Israel is dropping 2,000 lb bombs every day around Rafah, which is a tent city. Does the Tánaiste not think that we have expertise here that would allow us not only to intervene but to initiate proceedings of our own to add weight to South Africa's case?
On 30 January, the Tánaiste said he was seeking a legal analysis of the genocide convention and the court's provisional measures. Has he received that analysis and, if so, has he taken any action on foot of it? South Africa has again gone before the ICJ to seek further provisional measures in light of recent developments. I agree with Deputy Gannon that it is unfair of the international community to put the entire burden on South Africa. To be quite clear, and this is important, there is no prohibition on Ireland seeking to intercede formally at this or any other time. In the case of Ukraine v. Russia, the court observed that the articles of the statute "do not restrict the right of intervention to a particular phase of the proceedings". Notwithstanding that point, the questions I have put to the Tánaiste are not about the actual date of intervention. I was instead asking about the date of making a declaration concerning intervening. The Tánaiste knows this would send a very strong message internationally on the part of Ireland.
I regret how this debate is being conducted because it is more about playing politics. It is important that we be upfront with the public. The Attorney General's presentation last week demonstrates that we are doing the right thing from a Government perspective. Our action involved a robust legal submission to the ICJ on the question of the UN seeking an advisory opinion. This was followed up by oral participation in the court on well-informed and well-researched legal grounds. I refer to a legal intervention that has credibility and impact.
When this debate started, on social media and everywhere else there were calls for Ireland to join, support and align itself with the South African case. This was despite the fact that Deputies were told, on numerous occasions, that countries do not join or support a case in this way, but rather legally intervene and try to use the genocide convention or identify a legal route in that can have a real impact in this context. This approach would be one that would be opposed to just simply saying something, which we could do, because it is very easy to write a press release and say we are politically joining this and doing that, but one which means nothing. There are two basic, narrow grounds possible in this regard and I have been briefed by my legal advisors on this aspect. Articles 62 and 63 make it possible for a country to potentially intervene. It makes absolute sense that we work with South Africa. The Opposition Members, however, have now suddenly turned from asking why we would not join the case to saying we should not put the whole burden on South Africa. The Opposition is really playing politics with this matter.
Why would we-----
Just as in the case of Ukraine v. Russia, it makes sense that South Africa would submit the substantive case, which is called a memorial. It normally takes four to five months for such a memorial to be lodged. It makes absolute sense in this context for us to work with South Africa. Our legal advisors are very clear on this point, and in saying that we may identify our own grounds in respect of how we intervene. We are proactively looking at approach in terms of what basis to intervene on if we were to do so. In my view, the grounds in this regard are narrow but we are actively looking at this and we are in touch with South Africa in respect of its lodging of its memorial. This is the honest and factual position.
What possible motivation would we have to play politics around genocide? The Tánaiste can nod his head, but the insult of that suggestion is extraordinary.
But why-----
We are not the only ones who take to our social media. Six days ago, the Tánaiste had a big post on his social media saying how he was doing everything in his power in respect of this matter. This is a Chamber where we debate ideas and discuss the most serious issues.
What Deputy Carthy and I have said - the Tánaiste has backed this up - is that there are other means by which we could intervene. South Africa built its case and its 83-page submission on the rhetoric of the Israeli Government. We could come in and base our case on other issues, such as enforced starvation of a population and the dropping of large-scale munitions. There are other bases on which we could intervene or initiate our own proceedings. This is not the first time this is being brought to the floor of the Dáil. The Tánaiste may not like the argument in the debate. There is no intent to be personal here. I do not know why the Tánaiste keeps rendering it in that way. It is unbecoming. He should cop himself on.
I concur with that. The Tánaiste reaches for the political card, the performative card and the accusation card if anybody asks him to do something. Regarding those accusing people of playing politics, I remind him that the very first response from Government was from An Taoiseach, Deputy Varadkar, whose words were that Ireland had no intention of joining the South African case. That was the language used. I welcome that the Government has moved on to such a point that the Tánaiste brought a motion before the Dáil in January, albeit in response to Opposition motions. He talked about urgently considering intervening in this case. That was six weeks ago. Where is the urgency today? I commend the Attorney General on his role in respect of the advisory opinion. Nobody is asking us to do anything other than our utmost to stop what is happening in Gaza. That is what this is about.
It is not.
The Tánaiste should not question people's motives. I do not question his.
The Deputy does. He has.
I do not. I have not. What I have asked of the Tánaiste is to do more. That is entirely legitimate for an Opposition spokesperson to do. It is not legitimate for the Tánaiste to try to play political games and go down into the gutter on this issue as he has done consistently.
We are way over time. I call on the Tánaiste to respond.
We are asking the Tánaiste questions in respect of the ICJ. I ask him to please keep his responses to that.
With the greatest of respect to the Deputies, they have played politics with this. They did not quote my full statement to the House on the motion in question, when I made it very clear that we would await South Africa's filing a substantive case and that our legal people would, in the meantime, examine any particular grounds we could explore in respect of any legal intervention we might make. They are very narrow. I am very clear that the Deputies opposite have condemned Government. They have tried to create a wedge in domestic politics on this issue, as have others in this House. Let us not pretend that has not happened. They have successfully and critically condemned Government over the expulsion of ambassadors, on which they have flip-flopped, and a range of other issues.
I hope the Tánaiste will listen to himself and recognise the inconsistency in what he is saying.
We have been very clear. This is a legal intervention and needs to be done properly and with credibility as we have done all along. Ireland has been one of the few countries within the European Union that is utilising the international courts properly, effectively with due analysis, looking at these things rigorously. Six weeks ago, in the debate on that motion, I said that we would consider intervening, but we first of all had to see preliminary findings in the South African case. This is exactly what happened with Ukraine v. Russia; it was four to five months after the preliminary hearings. So far South Africa has engaged in the preliminary hearings. The court ruled, made conclusions and provisional conclusions on which we all agreed regarding an immediate humanitarian ceasefire and unhindered access to aid. That is the preliminary stage, but South Africa has to file the substantive case. It makes sense. I have to stress I have been advised of legal grounds on this and I have no issue with that. We need to look at this through the legal prism if we want to be effective. We could write a press release. Either we want to be effective from a legal perspective or not. I think we need to examine this given the very high threshold within the genocide convention that is there already.
