In ICJ case, Israel ‘arrogance of a colonial power’ gives away its genocidal intent in Gaza: Legal expert

South Africa’s case at the International Court of Justice (ICJ) has brought the debate on Israel’s deadly actions in Gaza, deemed genocidal by rights groups and experts around the world, to both the global political and legal realms.

South Africa’s legal team was firm in asserting that Israel is engaged in genocidal activities, requesting the ICJ for special provisional measures compelling its military to halt operations in the Gaza Strip.

When it comes to charges of genocide, proving intent is a key requirement, and Israel’s defence focused on denying that ever existed.

However, Penny Green, a Professor of Law and Globalisation at Queen Mary University of London, believes that there is enough evidence to suggest that Israel’s actions in Gaza are tantamount to genocide – and with intent.

Part of that, she asserted, is simply because of the way Israel has conducted its military offensive in Gaza, with a sense of impunity and overtly exhibiting its animosity.

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“Genocidal states rarely commit their genocidal plans to policy or public scrutiny. So, it normally has to be inferred through an analysis of state actions or leaked memorandum,” Green told Anadolu.

“Israel is, in this case, something of an exception. It has the hubris, the arrogance of a colonial power and the knowledge that it can kill and destroy and expel and humiliate and imprison and dispossess with impunity.”

Israel has operated with “the knowledge that it has the continued financial and moral support of Western nations, particularly the US,” she added.

“With that behind it, Israel couldn’t really have made its intention to annihilate the population of Gaza any more explicit than it has done,” said Green.

“We can see that intention embodied in its announcement of a state of total siege for Gaza, cutting off food, water, fuel, electricity and medical supplies.”

Green described it as “a clear statement of intention to commit genocide”, referring to the Genocide Convention adopted by the UN General Assembly in 1948, which addresses the intentional imposition of conditions on a group with the aim of causing its complete or partial physical destruction.

As the world awaits the ICJ’s verdict, Israel’s genocide continues – [Cartoon / Mohammad Sabaaneh]

‘They don’t have a leg to stand on’

Israel’s ongoing assault on Gaza, launched after the 7 October cross-border attack by Hamas, has now killed more than 25,000 Palestinians and injured nearly 63,000 others.

According to UN figures, the Israeli offensive has left 85 per cent of Gaza’s population of over 2 million internally displaced, amid acute shortages of food, clean water and medicine, while 60 per cent of the enclave’s infrastructure has been damaged or destroyed.

UN experts warned again, last week, that Israel’s actions in Gaza are an “unfolding genocide”, warning that “Gazans now make up 80 per cent of all people facing famine or catastrophic hunger worldwide.”

For Green, Israel’s arguments at the ICJ were “very weak” and she characterised their legal team’s performance as “lacklustre” and “unpersuasive”.

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“They don’t have a leg to stand on actually, quite frankly. So, it’s very difficult for them to build a case against the South African arguments,” she said.

That is why the Israeli team focused on the issue of the ICJ’s jurisdiction over the case, she added.

“But they couldn’t defend themselves against the charges of genocide which the South African legal team was making,” she stressed.

‘Very strong legal arguments’ from South Africa

In contrast, Green praised South Africa’s legal presentation, particularly for their emphasis on the crucial element of intention in proving genocide.

“I think that they made some very strong legal arguments. I think that they worked very hard to establish intention,” she said.

Genocide, she explained, has two components that must be proven in court: intention and the execution of that intention.

The South African team spent a lot of time discussing the “the bombardment of Gaza, the laying to waste effectively of Gaza with indiscriminate bombardment, the mass killing of tens of thousands of civilians, almost half of whom are children,” she said.

They spoke about the “razing of whole residential neighborhoods and medical and other educational infrastructure … the forced displacement … (and) about the imposition of a total siege,” she added.

“We’re now seeing famine and disease as a result of that siege. The South Africans also talked about the targeted killings of eye-watering numbers of medical personnel, of journalists,” said Green.

“So, this is the visible execution or the conduct of genocide.”

Evidence of genocidal intent

When we look at the entire spectrum of Israel’s political and military leadership, including the command leadership, we observe this genocidal intention has been expressed at every level, Green said.

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Despite Israel’s claim that it was individuals making statements implying their intention to commit genocide, the evidence suggests otherwise, she said.

“In fact, there is an organisation, Law for Palestine, which has produced a really vital database of over 500 statements by senior political figures, senior military figures and senior popular culture figures inside Israel,” she said.

“So, the evidence of the Israeli state’s desire, intention to commit genocide is very, very clear,” she said, citing Israeli Prime Minister, Benjamin Netanyahu’s threat “to flatten Gaza, reducing it to an island of ruins” and him likening Palestinians to an ancient tribe known as Amalek, referenced in the Hebrew Bible as a recurring foe of the Israelites that must be wiped out.

Netanyahu declared that this was somehow “a battle of Israel against the barbarians, a battle of civilizations … a battle for Israelis that requires the total destruction of Gaza,” she said.

“So, I’m afraid that the Israeli case has no validity at all, because at every level of the Israeli Knesset, at every level of the Israeli military, we have seen very, very clear statements, expressions of a desire to exterminate the Palestinians,” Green asserted.

There is additional evidence indicating intent, particularly when considering Israel’s “foundational goal”, according to the expert.

From the outset, Israel aimed to establish a Jewish Zionist supremacist state in historic Palestine, mirroring the objectives of settler colonial states, she said.

“That foundational goal, which necessarily requires the annihilation of the indigenous population … which was conceived in 1948 by the new Israeli state, explicitly called for the systematic and total expulsion of Palestinians from their homeland and has been the motivating force behind Israel’s systematic persecution of the Palestinians,” she said.

Expectations for ICJ ruling

In Green’s assessment, the ICJ will likely accept South Africa’s plea for provisionary measures.

“It will probably say that, yes, there is a plausible case that genocide is being committed by Israel against the Palestinians in Gaza,” she said.

“In that case, they will instigate preliminary provisional measures against Israel to stop the genocide.”

She emphasised that a ruling against South Africa will have grave consequences for the international legal order.

“If the Court finds against South Africa, if the Court supports Israel and says that genocide isn’t being committed, then, from my perspective, the ICJ and the international legal order is finished,” Green said.

However, she is also uncertain about whether Israel will actually honour the Court’s word.

“Netanyahu has already made very clear that he is not going to stop until, as he describes it, Hamas is eliminated. And what he means is until Gaza is destroyed completely,” she said

“I think that the Court will probably find with the South Africans. Whether or not this will have any impact on Israel, I doubt it, but it may have an impact on the US and it may have an impact on countries like Saudi Arabia and other Middle Eastern countries who are already finding it less favourable in their interest to support the US wholly in its support of Israel.”

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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.