Boric on the Hamas vs. Israel Conflict: I Am the State

Ex-Ante, January 14, 2024

During the presidential campaign, candidate Boric and his spokespersons tirelessly insisted on characterizing national foreign policy as lacking transparency and democracy, insufficiently socialized with the people. It is unfortunate to see his administration fall into the very failure they accused, once again demonstrating their confusion between the personal and the state. The international representation of the state at the highest level, treated as a solely personal decision without hearing anyone’s opinion, will express the personal vision of the President of the Republic. But not that of our country. This represents a serious failure in the management of state affairs, but it could still be corrected.

The first half of 2024 feels like it has spanned months in international matters. In the Middle East, the potential for a regional powder keg is growing rapidly. In the Red Sea alone, there are several flashpoints: in Sudan, ethnic cleansing has triggered the largest global crisis of human displacement; in Ethiopia and Somalia, a war is brewing over the latter’s access to the sea, which it currently lacks; and in Yemen, after a decade of civil war, a U.S.-British military intervention this week attempted to limit the Houthi Islamists, who—backed by Iran—are blocking passage through the Suez Canal.

Meanwhile, in Ukraine, the Russian invasion enters its third year; friction is increasing between China and Taiwan; Ecuador has entered an all-out war against drug trafficking; and in Panama, the severe drought affecting the Canal due to climate change is forcing cargo to be transported overland, impacting the global economy.

Each of these issues deserves analysis, but the first of the year should be dedicated to the Hamas vs. Israel war. 2024 began with the news that, before the International Court of Justice in The Hague (ICJ), Israel has been accused by South Africa of genocide (a very specific offense, distinct from war crimes and crimes against humanity). As South Africa requested provisional measures in the case, both countries argued this week in public hearings.

As this is one of the most important cases in the history of the Court, certain states have expressed support for one of the parties and an intention to intervene in the substantive phase; while others—including countries with a strong commitment to human rights such as Canada, Ireland, and France—have indicated that they value the role of the ICJ but will not become involved in the trial.

It is important to mention that outside of this case South Africa vs. Israel, there are two more international legal proceedings involving the conflict. There is a second case before the ICJ (Advisory Opinion on the Legal Effects of the Israeli Occupation in Palestine), where arguments will be presented on February 19. Additionally, there is an investigation by the International Criminal Court (which deals with individual responsibility, not that of countries), opened in March 2021, covering the entire current escalation in the area.

Is it worth it for Chile to understand this legal aspect of the conflict? The answer is yes. Because in the legal aspect of this dispute, the most intricate of our time, the government of Chile has decided to intervene. Let us examine the details.

The Ambassador to the UN and former presidential candidate Paula Narváez announced last Tuesday that Chile “will present the referral of the situation in Palestine to the prosecutor of the International Criminal Court for the investigation of crimes committed in the occupied Palestinian territories.”

However, as is evident at first glance, the Chilean announcement will have no effect (the ICC Prosecutor is already investigating); and it also revealed bias, as while the Prosecutor constantly emphasizes that it investigates conduct from both sides, Narváez only requested that crimes in Palestine be investigated and not those committed by Hamas in Israel. Furthermore, Narváez’s announcement seems to be a copy of those from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, countries that last November also announced a referral to the ICC Prosecutor solely regarding the situation in occupied territories; which had the same null effect in practice, as the investigation already exists.

It should be noted that these same countries, in South Africa vs. Israel, support South Africa and may possibly intervene directly in the substantive phase. In this same vein, countries in our region such as Nicaragua, Venezuela, Cuba, Colombia, and Brazil seem to logically think that they have asked Chile to join the group. For now, our Foreign Ministry stated last Thursday that it continues to follow the case with high interest, particularly values the request for provisional measures, and is analyzing steps to take regarding intervention in the substantive phase. The submission of a written statement and Chilean argument before the ICJ in South Africa vs. Israel seems likely.

Now, in the second ICJ case regarding the conflict (Advisory Opinion on the Legal Effects of the Israeli Occupation), Chile will present an argument on February 19. Curiously, this has not been the subject of any government announcement, although the decision to allocate resources for it was made some time ago: from the Court’s website, it can be inferred that Chile submitted documents on this matter in July and October 2023.

It is noteworthy that this week the Government, in response to press inquiries, admitted that these efforts for an argument before The Hague have been made without informing Congress or the Foreign Policy Council, not even in a reserved manner. In response to a media outlet, the Foreign Ministry added that the task was entrusted to Ximena Fuentes (former Agent before The Hague in the Silala case) and stated that it does not need to inform anyone about these judicial efforts, with a justification that exacerbates the failure (an absurd comparison with efforts of much lesser rank).

The decision to intervene in some way in three international legal proceedings concerning the Israel-Palestine conflict, the most complex of our times, should be an expression of state policy. But La Moneda, in its clumsiness, not only fails to attempt to agree on a strategy that would have broad support, given that it is a key issue at the global level; but it does not even inform out of deference to the other branches of government.Although the conduct of international relations is the responsibility of the Executive, presentations in the highest legal forums globally commit the state of Chile; not the Boric administration.

The implications of addressing state affairs as if they were expressions of a personal vision are serious and go beyond the evaluation of the advisability of acting regarding the specific case, and the possible risks, benefits, and costs of potential actions. It is inconceivable that the advisory bodies created by law for this purpose (such as the Foreign Policy Council) are entirely unaware of the Government’s strategy to represent the state in the highest legal forum globally—if there is one.

Recalling, during the presidential campaign, candidate Boric and his spokespersons tirelessly insisted on characterizing national foreign policy as lacking transparency and democracy, insufficiently socialized with the people. It is unfortunate to see his administration fall into the very failure they accused, once again demonstrating their confusion between the personal and the state: L’ Etat, c’est moi (“I Am the State”). 

The international representation of the state at the highest level, treated as a solely personal decision without hearing anyone’s opinion, will express the personal vision of the President of the Republic. But not that of our country. This represents a serious failure in the management of state affairs, but it could still be corrected.

Hopefully, it will be done.

Paz Zárate
Senior Researcher, AthenaLab

Source: Ex-Ante