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Dr Pogačnik: Slovenia Has Joined The Group Of Failing Countries

Minister of Foreign and European Affairs Tanja Fajon said that Slovenia is not yet in a position to join South Africa’s case against Israel at the International Court of Justice (ICJ), but that it will participate in the ICJ proceedings on alleged Israeli violations in the Palestinian territories, which were initiated on the basis of a UN General Assembly resolution in 2022. International lawyer Dr Miha Pogačnik believes this move is unnecessary for Slovenia and that it could do more harm than good.

Regarding South Africa’s lawsuit, which is currently in the process of conducting a public hearing in The Hague, Dr Miha Pogačnik believes that it is possible to take certain interim measures to prevent even more victims but that it is unnecessary for Slovenia to define itself on a matter that should be decided by a competent court.

“Today, in accordance with Article 96 of the UN Charter, Slovenia has joined the group of failed or failing states. I hope that at some point, someone will be held concretely accountable for this move, which will have perceptible negative effects. The President of the country, the Prime Minister and the Foreign Minister, and then others,” wrote Dr Pogačnik on the social network X. He went on to explain that by “failing” states, he meant mainly “non-nuclear” and that this was the opposite of what Foreign Minister Tanja Fajon was promising at the beginning of her mandate. Namely, that Slovenia would move towards a nuclear Europe. “But none of the nuclear countries, nor any other developed countries in Western Europe and the developed world in general, have joined this campaign,” said Dr Pogačnik, who is convinced that this will have negative consequences for Slovenia.

“Slovenia does not need to do this, because it is not the initiator of this action and does not need to choose its position on this matter yet,” said Dr Pogačnik. “It can monitor what is going on, but the fact that it is actively going along with the four countries that have joined the lawsuit is a bit, well, odd,” continued the international lawyer, who wonders whose idea it was. Dr Pogačnik believes it is important to note that any substantive prediction is premature, but that this move was certainly not necessary for Slovenia. “It cannot benefit Slovenia because others have already pulled it, but it can put it in a club that is not the most respectable. The developed democracies have seen this trap and avoided it, but we have stepped into it and taken a position on a matter that has not yet been decided in substance,” he said.

It is a temporary measure to prevent further damage

Israel is accused of genocide, which is the most serious accusation, agrees Dr Pogačnik, who does not deny that many people were killed, but that it is difficult to say whether or not it was genocide and that this is a matter for the competent court to decide. He said that it was still too early to comment on anything, and that the current request from South Africa was for interim measures, which could be legitimate if there were human tragedies. “But this is not yet jurisdiction, this is just an interim measure to try to prevent possible damage, if, of course, there is any.

Even if the court now takes provisional measures, it does not mean that Israel will be found guilty in the end,” Dr Pogačnik explained.

Dr Pogačnik believes that this is an anti-terrorist operation against a terrorist movement, because, as he explains, “Hamas does not have the status of an army or an armed force, and this is absolutely an anti-terrorist operation, because Israel is clearing the terrorist cells underground in its own territory.” The situation would be different, he says, “if Hamas were really a legitimate liberation movement and fought according to the rules, with soldiers and not civilians, then they would eventually be a liberation movement. They would have the partial status of an armed force. Then they could hardly be accused of being terrorists, then it would not be an international conflict, but an internal armed conflict, and they would be protected under international law by that other protocol of the Geneva Convention.”

His position is that this was a reaction by the legal authorities of the State of Israel on Israeli territory against the people who started the terrorist massacre on the 7th of October. “Whether the reaction was excessive, whether there were too many collateral victims and whether this is really genocide, the court will have to say,” he argues.

Is this a succession of “fraternal friendship between Palestinian and Yugoslav terrorists”?

He also pointed out the fact that Yugoslavia had been a supporter of the Palestinian Liberation Movement for all its years of existence, “funding and training terrorists. I hope that this is not a continuation of this policy, but to identify oneself a priori with someone, even though there is a court of law that needs to rule on the matter first, is really risky, it is not a diplomatic move,” he said. He added that the phrase “occupied territories” is also frequently mentioned, which, in his view, is not only an accusation of genocide, but also a qualification in favour of “certain Palestinian occupied territories, which thus results in the denigration of Israel as the aggressor, and this in territories that are an integral part of Israel.”

Dr Pogačnik argued that both Israel and South Africa are superpowers in the field of international law, and he therefore believes that Israel will respond to South Africa’s accusations with the same profound content as the accusation itself. He believes that this will be of particular interest to all international lawyers, “they have really great professors of international law, and it will be a great pleasure for us international lawyers to review all this,” he said, adding that this is why it is difficult to predict in substance exactly what will happen. He believes that the court will announce some action in order to prevent and protect human lives, but that still means nothing, “much less that Israel has been proven guilty of genocide.”

Tanja Brkić

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