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Will the law or political considerations sway the ICJ judges?

January 16, 2024 at 3:02 pm

Judges take their seats prior to the hearing of Israel’s defense at the International Court of Justice (ICJ) against South Africa’s genocide case in Gaza against Israel, in the Hague, Netherlands on January 12, 2024 [Dursun Aydemir/Anadolu Agency]

No lawsuit would ever be able cover all the details of the genocide to which the Palestinian people have been subjected for more than a hundred years. It started with the infamous 1917 Balfour Declaration, followed by the notorious British Mandate era, through to the 1948 Nakba and 1967 Naksa. It continues to this day with events in the besieged and bombarded Gaza Strip and the occupied West Bank and Jerusalem. However, the appearance of Israel, the settler-colonial spoilt child of the West, before the highest international judicial body for the first time to be held accountable for at least some of its crimes is a victory against the impunity with which it is allowed to act.

No court ruling, though, no matter how fair it may be, will ever be able to restore the pre-1948 status quo.

The thousands of Palestinians killed by Israel over many decades will never come back into our lives; those who have been disabled will have to live with this for the rest of their lives; and the Gaza Strip will need many years, and billions of dollars, to be inhabitable again.

The lawsuit filed by South Africa on 29 December at the International Court of Justice (ICJ), while giving a historical preview, focused on what is described by many as the genocide committed by Israel against the Palestinian people in the Gaza Strip since 7 October. The South African legal team provided a summary of Israel’s criminal acts punishable under the 1948 Genocide Convention.

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The ICJ began its hearing on 11 January to decide on whether or not to impose interim measures requested by South Africa before deciding on the genocide itself. Nine provisional measures have been asked for by South Africa, primarily a halt to military operations and the protection of civilians from the ongoing killings, physical and psychological abuse and torture; and the provision of medical supplies, food and fuel. The urgent matters cannot be delayed until the case is decided, as it may take years, during which Israel will have completed its mission of clearing every Palestinian out of the Gaza Strip.

The ICJ’s approach does not require a decision on the court’s jurisdiction over the subject matter. It is sufficient for the court to ensure that it has reasonable jurisdiction at first glance and that the requirements of Article 9 of the Genocide Convention apply to both parties to the case, and that there is a connection between the provisional measures and the rights to be protected.

The first requirement has been satisfied since South Africa and Israel are parties to the Genocide Convention and neither of them has a valid reservation on Article 9, which provides that the International Court of Justice is the authority settling any dispute arising from the interpretation, application, or implementation of its provisions.

As to the second requirement, Article 9 provides that for the jurisdiction to be established, there must be a clear dispute between the two parties to the lawsuit regarding the interpretation, application or implementation of the agreement. The dispute must be determined by the date of registering the lawsuit with the court registrar. Malcolm Shaw, a member of Israel’s defence team, tried to prove that the dispute does not arise between the State of South Africa and Israel, claiming that South Africa did not enter into bilateral correspondence with Israel expressing its concerns over acts committed by Israel that meet the provisions of the Genocide Convention.

Shaw’s argument is weak and baseless, as the state of South Africa played a groundbreaking role ahead of all countries, which revealed the huge conflict between South Africa and Israel. In addition to bilateral correspondence about acts of genocide, it issued statements denouncing Israel’s crimes and withdrew its diplomats from Tel Aviv, declaring that genocide cannot be allowed under the nose of the international community.

Furthermore, South Africa, with several other countries, has referred the crimes committed to the International Criminal Court, and joined major efforts in the UN Security Council and General Assembly to halt the crimes that Israel is committing. The resultant UN resolutions were decried by Israel which alleged that they are hateful and anti-Semitic.

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Thus, the dispute between the two parties to the lawsuit was established, based on the ICJ’s reference to its decision on interim measures in the Ukraine-Russia case and the Gambia-Myanmar case. The court not only relied on bilateral correspondence, but also on journalistic data and on the state’s action at all levels, individually or with other countries, which highlighted the violation of the provisions of the Genocide Convention.

In the lawsuit on the genocide of the Rohingya, brought by Gambia against Myanmar, the court’s focus was on the moral value that prompted the states when ratifying the Genocide Convention and collective commitment of states to prevent genocide. Hence, there is no requirement for the state filing the lawsuit to be directly affected by the alleged acts of genocide. In this regard, the court stated that the relevant provisions of the Genocide Convention are defined as obligations erga omnes, meaning that any state party to the Genocide Convention, not just the particularly affected state, may invoke the responsibility of another state party with the aim of verifying the alleged failure to comply with its obligations to all, and to put an end to this failure.

The court duly concluded that Gambia had prima facie standing to refer the conflict with Myanmar based on alleged violations of obligations under the Genocide Convention.

As to the last requirement, which is about the connection between the nine provisional measures South Africa has called for with the rights to be protected, the court could find that most of these rights, by virtue of their nature, are closely linked to the provisional measures, most notably halting combat operations and confronting any act of genocide. Logically, this means that stopping the killing, destruction, the physical or psychological abuse of group members and displacement, and allowing the flow of all types of aid, necessitates stopping military action.

On the intent element that constitutes the crime of genocide, “there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group” in whole or in part, when committing any of the acts criminalised in the Genocide Convention, which is known as “special intent”, and it is usually difficult to prove. In ordinary crimes, the public prosecutor must delve into the criminal’s mind and the circumstances of the crime to investigate it and prove the intent provided in the incriminating text.

Although intent is not an important element to prove at this stage, South Africa submitted dozens of statements by Israeli military personnel, ministers and the prime minister proving their insistence and determination to commit the crime of genocide, which was reinforced by the massive amount of killing and destruction.

Shaw tried rather trivially to give little importance to these statements and interpreted them in a different way. However, the words, the actions that supported them and the consequences of them prove Israel’s intention to commit the genocide.

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Generally, when the court considers the facts and evidence supported by terrifying statistics, images, videos and international reports, it will be comfortable with the existence of its principled jurisdiction that allows it to impose the preventive measures, and the court would ensure its implementation through the measures it imposes. This include obliging Israel to submit a report within a week from the date of the ruling explaining what actions it took to implement these measures, and then to submit periodic reports within a specified period (for example, every three months) throughout the hearing of the original case.

The case presented by Israel’s defence team ignored and denied facts on the ground. It was merely a repetition of the lies that we have hear throughout the 100+ days of Israel’s military offensive against the Palestinians in Gaza. Palestinian civilians and civilian infrastructure were all militarised, including hospitals, places of worship, UNRWA schools and journalists. Such blaming of the victims of Israeli aggression basically belied the fact that most of the Palestinians killed and wounded by Israel have been children and women. This alone suggests very strongly the existence of an extermination plan in which civilians are targeted deliberately.

It would be sufficient for the judges to evaluate the facts presented before them and check the presence of the three requirements necessary to reject Israel’s requests to strike the case from the public record, and to support the imposition of all or most of the provisional measures. This would only happen if the provisions of the agreement are implemented in the abstract, and if the judges acted independently without any influence from their governments — which appoint judges to the ICJ — whatever their position might be. In other words, will it be the law or political considerations which sway the judges.

The question also remains whether Israel would implement the judges’ decision if it goes against the Zionist state’s perceived interests. Israel’s appearance before the court and submitting its defence means that it has recognised the authority of the ICJ and expressed its willingness to abide by its decision. From experience, though, we know that Israel is adept at circumventing and manipulating such decisions. It has no qualms about violating international law and treating it with contempt.

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It seems that those who have supported Israel in its genocidal offensive will continue their support. The US and Britain both criticised South Africa’s submission to the ICJ. Israeli Prime Minister Benjamin Netanyahu announced that Germany will join Israel in the lawsuit. It would not be surprising for the US and the UK to join Israel’s defence. Such a step would increase the number of defendants responsible for committing the genocide, as these countries would be deemed to be complicit, if genocide is proven.

Other countries may now be prompted to join South Africa and submit requests obligating Israel’s allies to stop their support for genocide. Namibia has already done so, as the victim of the first genocide of the 20th century committed by Germany in 1904.

History is being rewritten to shed light on the colonial legacy of the US and Europe, in which genocide of indigenous people has figured prominently. The evidence for this is overwhelming, and cannot be denied.

I would urge all countries to understand that they have a duty to support South Africa’s lawsuit by all possible means. State parties to the Convention on the Prevention of Genocide that do not have a reservation about Article 9 must join the lawsuit to expand its scope to include all the occupied Palestinian territories, since the crimes committed by the Israeli occupation in the West Bank and Jerusalem also need to be addressed by the Genocide Convention.

The priority remains, though, to stop Israel’s barbaric aggression by any and all means. After more than 100 days, it is no longer acceptable for at least 152 countries in the UN to be incapable of doing anything to confront and deter Israel and its allies. The Arab and Islamic countries can lead these efforts and guide the others to save the remainders of the Gaza Strip, but they need to stop fearing the consequences and abandon their weakness. Only then will they succeed.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.