Former Supreme Court judge Rosalie Abella is one of Canada’s foremost progressive jurists in Canada, responsible for numerous expansions in rights. Social justice is her wheelhouse. And, perhaps to the ire of some of her fans on the political left, she is an Israel supporter.
Abella made her stance clear Tuesday, with the publication of an op-ed for the Globe and Mail entitled, The Genocide Case Against Israel is an Abuse of the Postwar Legal Order. Her qualm was with South Africa, which brought a case to the International Court of Justice, that was heard Thursday, accusing Israel of working to exterminate Palestinians. South Africa hopes to have the court make Israel cease all military activity in Gaza and desist from any destruction of the Palestinian people. Hearings for the proceeding have begun.
“To me, this case represents an outrageous and cynical abuse of the principles underlying the international legal order that was set up after the Second World War,” Abella wrote.
“It is a legal absurdity to suggest that a country that is defending itself from genocide is thereby guilty of genocide.”
Abella sees the issue quite clearly: Israel experienced a savage terror attack at the hands of Hamas on Oct. 7, and is now preventing this from happening again. Fascinatingly, this puts the ultra-progressive judge on the side held more commonly by conservatives, and has resulted in her name landing in hot water within the left for her “shameful, vibes-based Israel defence” and even among former students.
“Now, we find ourselves in the perverse situation where a genocidal organization such as Hamas is able to escape legal scrutiny or sanction for committing genocidal acts, while the country that is the intended target of its genocidal intentions is being called upon by the International Court of Justice to defend itself from allegations of genocide,” Abella wrote.
She’s clearly frustrated with the international legal order, and that’s understandable. What’s perplexing, though, is the fact that she so valiantly ushered into Canada so many of the principles that are now being used as a springboard for political thrusts against Israel.
Not happy with an international legal order informed by oppressor-versus-oppressed narratives embraced warmly by nations hostile to the West? Perhaps the ideology of equity wasn’t wise to normalize in Canada after all.
Fans and critics alike will remind legal circles of Abella’s many accomplishments. She laid the foundation for the federal affirmative action program, also known as the Employment Equity Act — which is currently being primed for an expansion.
She’s played a role in expanding the notion of Aboriginal rights and the interpretation of section 35 of the Constitution, authoring Supreme Court decisions that expanded Indigenous status to the Métis, and attempted unsuccessfully to expand Aboriginal rights to include a requirement for government to consult Indigenous groups on any piece of legislation (in Australia, a parallel system was left up to democracy through a referendum, which the people rejected).
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Abella doesn’t believe in treating people equally. Instead, she favours equity, or “substantive equality” as it’s known in Canadian law. Some people don’t have the same advantages as the rest, goes the thinking, so a little boost here and there is a good thing for society. Most people can agree with this on a small scale — a runt of a litter may need special care to stay healthy, for example. But Abella applied her beliefs at scale, commanding the government to impose hiring preferences for Indigenous people, women, visible minorities and the disabled.
Apply these concepts to Israel, which is exactly what Israel’s critics do, and you get today’s discourse. Israelis have markedly better outcomes in life than their Palestinian neighbours; the Israeli military is performing drastically better than their opponents (as it did in the numerous wars it faced in the last century).
No matter what happened to Jews in the past, Israel has the upper hand today, and this is used to justify a strong barrage of criticism from the international community — particularly Muslim states as well as nations enamoured with anti-colonial identity (Ireland).
The idea that an “occupying” nation, a colonizer, must somehow recognize the “true inhabitants” of the land, the indigenous, with special rights and privileges, was woven into Abella’s work as she sat on various courts.
It’s an idea equally woven into South Africa, a country where mainstream political parties can openly chant, “Kill the Boer” in a clear call for violence against a racial group, and a country where the governing administration has restricted trade, added racial quotas for management jobs, and has sought to seize land and even allocate water rights (a critical component of agriculture) by race. Also, importantly, a country where oppressor-versus-oppressed violence is commonplace.
South African President Cyril Ramphosa governs a hotbed of hate, which his party is willing to institutionalize in law. Ramphosa can do this because his flavour of discrimination is in line with the “equity”-based ways of thought so often found in Abella’s own decisions. It does make sense, though, that his country would be the one to ask an international court to implore “oppressors” to simply shut up and take it.
We’ll have to wait and see what comes of South Africa’s case. Until then, perhaps the progressives fighting for policies of ethnic redistribution at home can reflect on just how toxic their politics become when granted full stage in the international arena.