Israel’s unrelenting, devastating attacks on the Gaza Strip in its war against Hamas has spurred South Africa to formally raise the issue of potential genocide before the International Court of Justice.
It has asked the ICJ for a provisional ruling calling on Israel to stop its combat operations that began three months ago, killing more than 22,000 Palestinians thus far.
After several countries issued statements supporting South Africa’s initiative, Israel announced it would defend itself in court. This reverses Israel’s decade-long policy of boycotting the ICJ – the United Nations’ highest court with 15 elected judges from various nations.
The first hearing, in The Hague, has been set for Jan. 11-12. Precedence indicates the ICJ will issue a provisional ruling within weeks, the Guardian said in its report-cum-analysis on the case. “The wheels of global justice – at least interim justice – do not always grind slowly,” it added.
South Africa’s request for a provisional ruling follows a recent trend at the ICJ: Nations have been seeking – and obtaining – provisional measures with increasing frequency. In the last decade, the Guardian reports, the ICJ has issued provisional measures in 11 cases, whereas only 10 were issued over 50 years of the court’s existence (1945-1995).
ICJ provisional measures seek to freeze the legal situation between state-parties to ensure the integrity of a future final judgment.
Have these final judgments been implemented? It appears that ICJ rulings were complied with by the state-parties in only 50 percent of the cases. And in most high-profile recent cases, the losing parties defied the international court.
In the case against Israel, should the ICJ provisionally order the government to desist from any act ruled as genocide, the Guardian opined: The fact that Israel has chosen to defend itself at the ICJ and is a signatory to the Genocide Convention makes it harder for the government to brush aside an adverse finding.
In its 80-page claim/submission to the ICJ, South Africa relies on detailed references to senior UN officials and reports, seeking to prove Israel’s genocidal intent. Much of the argument, it says, is derived from the ICJ’s judgment on provisional measures it issued on the Gambia versus Myanmar case in 2020.
“Acts and omissions by Israel are genocidal in character,” the claim declared, “as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group [and that] the conduct of Israel – through its state organs, state agents and other persons and entities acting on its instructions or under its direction, control or influence – in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
“Provisional measures are necessary… to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continues to be violated with impunity,” the claim stressed.
By seeking provisional relief, not a definitive ruling, South Africa seeks to lower the threshold of what is required to be proven before the court provides interim relief.
“The [ICJ] is not required to ascertain whether any violation of Israel’s obligations under the Genocide Convention has occurred,” the claim argues. “[S]uch a finding would probably depend on an assessment of the existence of an intent to destroy, in whole or in part, the [Palestinians]. But such finding could be made only at the stage of the examination by the court of the merits of the present case.”
What the ICJ is required to do, at the stage of making an order on provisional measures, is to establish whether the acts complained of, or at least some of the acts… could fall under the provisions of the Genocide Convention.
South Africa seeks to prove that the measures Israel has taken go beyond self-defense, which has been its repeated justification for its war on Gaza. But this leads to the destruction of the Palestinians. The claim filed at ICJ details the “familiar, if shocking, death toll, forced displacement, deprivation of food and the restrictions on births through attacks on hospitals.” These are sufficient evidence to infer plausible genocidal intent, the claim argued.
Two additional elements cited were: The degree to which the Palestinian cultural life has been targeted, and the degree to which Israel officials, without reproach, have repeatedly advocated for the destruction not just of Hamas but of Palestinians.
Direct and public incitement to commit genocide have been made by Israeli state officials, including Prime Minister Benjamin Netanyahu. There are threats to make Gaza permanently uninhabitable. Palestinians are referred to as “human animals” and calls have been made by Cabinet ministers to resettle Palestinians outside Gaza.
But within Israel itself, opposition to the war is building up. A group of former government officials has asked the state’s attorney general to take action against current public officials and elected politicians who have called for ethnic cleansing targeting the Palestinians. “For the first time that we can remember,” they wrote, “the explicit call to commit atrocious crimes against millions of people have become a legitimate and ordinary part of the Israeli discourse. Today, calls of these types are an everyday matter in Israel.”
Yet again, the Israeli government spokesperson, Eylon Levy, invoked the state’s right to self-defense and the “innovative measures taken to reduce civilian casualties.” But he questioned whether South Africa had a genuine dispute with Israel. He challenged the country’s bona fide as an opponent of genocide, saying it was acting as the “pro bono advocate” of Hamas.
In reply, South Africa pointed out that it had in fact criticized Hamas for the massacre of 1,200 Israelis on Oct. 7, and sent a formal letter to Israel before filing its claim before the ICJ. There has been no reply from Israel.
One can’t help thinking that such a lawyerly, but deeply compassionate approach, by the government of South Africa is worthy of its revered founding father Nelson Mandela.
Published in Philippine Star
January 6, 2024
