ISRAEL, PALESTINE AND THE WAR ON GAZA
South Africa brings genocide case against Israel at ICJ
The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations… – UN Charter
Established by the Charter of the United Nations as the principal judicial organ of the United Nations, the ICJ rules on disputes between countries that have consented to the jurisdiction of the Court. Both South Africa and Israel did so when they ratified the Genocide Convention, which was written in the aftermath of the Holocaust.
South Africa justifies its standing to bring the case on the basis of its obligation to prevent genocide pursuant to Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, binding on both Israel and South Africa, adding that this
also gives rise to obligations binding on Israel not to commit genocide, and to punish those who directly and publicly incite to genocide.
South Africa is also relying on the erga omnes partes doctrine, which allows a State party to a treaty protecting common legal rights to enforce those rights even if the State is not directly affected by the violation.
The South African court application maintains that Israel’s actions since the war began on 7 October 2023
are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic … group in the Gaza Strip.
That charge fits squarely under the definition of genocide in the Genocide Convention.
In an excellent commentary on the case, whatever one’s views of the hugely influential — and equally controversial — American international relations scholar of the “realist’ school, John Mearsheimer writes:
The application is a superb description of what Israel is doing in Gaza. It is comprehensive, well-written, well-argued, and thoroughly documented.
He outlines the document’s three main components:
- The level of death and destruction inflicted on Palestinians in Gaza since 7 October 2023 and why more is in store for them;
- A substantial body of evidence showing that Israeli leaders have genocidal intent toward the Palestinians; and
- The broader historical context of the Gaza war.
On the issue of intent, Mearsheimer writes:
In essence, the document argues that Israel’s actions in Gaza, combined with its leaders’ statements of intent, make it clear that Israeli policy is “calculated to bring about the physical destruction of Palestinians in Gaza.”
On the broader context, Mearsheimer concludes:
In short, the application makes clear that what the Israelis have done in Gaza since 7 October is a more extreme version of what they were doing well before 7 October.
On the central issue of genocide, Mearsheimer concludes from the South African case that, after the 24-30 November 2023 truce ended and Israel went back on the offensive,
Israeli leaders were in fact seeking to physically destroy a substantial portion of Gaza’s population.
The South African court application includes nine pages of evidence of genocidal intent, including calls from Israeli decision-makers and military officials for Gaza to be “wiped out”, “flattened”, “erased”, and “crushed”, and statements such as
[t]here are no innocents in Gaza; the children of Gaza have brought this on themselves; there should be one sentence for everyone there — death.
The application also contends that Israeli authorities have failed to suppress “direct and public incitement to commit genocide” from a host of Israeli politicians, journalists and public officials in direct contravention of Israel’s obligation under the convention to prevent genocide.
A note of caution
Establishing genocidal intent is extraordinarily challenging, as it requires proof of a specific intent to destroy a group in whole or in part. – Just Security blog, 4 January 2024
For an examination of the challenges in proving genocidal intent, see The Promise and Risk of South Africa’s Case Against Israel (Alaa Hachem and Oona A. Hathaway, justsecurity.org).
Urgent Provisional Order sought by South Africa
Article 41(1) of the ICJ Statute provides that
[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
For a technical discussion of how such measures were considered and ultimately ordered in the application brought by Ukraine against Russia under the Genocide Convention, click HERE.
For its part, South Africa has asked the ICJ for “provisional measures” — an order, binding on Israel under the treaty — to “immediately suspend its military operations in and against Gaza” as well as all actions relating to the expulsion and forced displacement of Gazans and to the deprivation of their essentials of life.
Hearings on that request will occur on January 11 and 12, with an order expected possibly within one month.
The burden of proof for provisional measures is lower than for a judgment. In the case of an alleged genocide, the ICJ only has “to establish whether … at least some of the acts alleged … are capable of falling within the provisions of the Convention.”
the judges can compare the alleged actions of Israeli forces and statements of Israeli officials to the definition of genocide and conclude, fairly quickly, whether the threshold for issuing an order has been met.
And the situation is just getting worse
In a 5 January 2024 analysis in the paywalled Washington Post, entitled Israeli calls for Gaza’s ethnic cleansing are only getting louder, author Ishaan Tharoor cites a parliamentarian from Netanyahu’s Likud party who went on television in the first week of January and said it was clear to most Israelis that
all the Gazans need to be destroyed.
Tharoor then quotes Israel’s ambassador in Britain who told local radio on 3 January 2023 that there was no other solution for her country than to level “every school, every mosque, every second house” in Gaza to degrade Hamas’s military infrastructure.
Israeli public figures accuse judiciary of ignoring incitement to genocide in Gaza
“excessive and blatant” incitement to genocide – letter to Israeli Attorney General
The Guardian also reported in a 3 January 2023 article that
A group of prominent Israelis has accused the country’s judicial authorities of ignoring “extensive and blatant” incitement to genocide and ethnic cleansing in Gaza by influential public figures.
In a letter to the Attorney General and state prosecutors, they demand action to stop the normalisation of language that breaks both Israeli and international law, writing:
For the first time that we can remember, the explicit calls to commit atrocious crimes… against millions of civilians have turned into a legitimate and regular part of Israeli discourse….
Today, calls of these types are an everyday matter in Israel.
ICJ has no enforcement mechanism
While any rulings by the ICJ will be binding on Israel, the court lacks enforcement power. In the case of Ukraine, for example, Moscow continues to ignore the ICJ’s March 2022 provisional order that Moscow halt its military operations against Ukraine.
In Byers’ view:
An order from the ICJ might not have an immediate effect on Israel, but it could affect the United States. President Joe Biden has been resisting calls for a ceasefire — and paying a political price, especially among young voters.
Sarang Shidore, director of the Washington-based Quincy Institute, alluding to the stark difference between the US’s stance on the Russia–Ukraine war and its position on the Gaza war, told Al Jazeera:
The Biden Administration is increasingly vulnerable to domestic opponents of the war and international charges of double standards.
Professor Byers offers this hopeful possibility:
… an ICJ order could give the President a convenient reason for changing his position on a ceasefire.
Biden administration dismisses South African case as “meritless”
Whatever the political perils, the White House has condemned South Africa’s decision to formally accuse Israel of genocide at the International Court of Justice, calling the allegations “meritless”.
National Security Council spokesperson John Kirby also said that the court submission was
Counterproductive and completely without any basis in fact whatsoever.
Israel seeking allies’ support against court action
Israel has said it will defend itself in court, reversing a decades-old policy of boycotting the UN’s top court and its 15 elected judges. Equating the application with antisemitic slander against Jews, Israeli government spokesman Eylon Levy furiously declared:
The State of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel.
As South Africa receives pledges of support for its action from several countries, including Turkey, Indonesia, Malaysia and Jordan, as well as the Organisation of Islamic Cooperation (OIC), Israel is seeking allies’ support against the genocide charge.
According to the Globe and Mail, Israeli Foreign Minister Israel Katz, who spoke with his British counterpart, David Cameron, on 3 January, said that he
raised the importance of opposing South Africa’s absurd appeal to the ICJ against Israel.
States parties, including Canada, have a right to intervene in cases to support one side or the other. Over the past two years, Canada has used this legal avenue to support cases at the ICJ against Russia, Iran, Syria and Myanmar.
Canada expresses strong support for the International Court of Justice
While not commenting on whether Canada had plans to intervene, or whether it would support the court’s ruling, Geneviève Tremblay, a spokesperson for Global Affairs Canada did tell the Globe and Mail that
Canada strongly supports the role of the ICJ in the peaceful settlement of disputes…. In defending itself, Israel must respect international humanitarian law…. The price of defeating Hamas cannot be the continuous suffering of all Palestinian civilians.
France, for its part, was more direct, with Nicolas de Rivière, the French ambassador to the UN telling journalists:
We’ll make sure that we’ll support the outcome of the [ICJ] decision.
Most other Western countries have not commented on the case, and so far only the United States has joined Israel in opposing it.
Relying on far less evidence than South Africa has compiled, Canada formally intervened in support of Ukraine’s case against Russia. Now, at the very least, it must indicate, as France has done, that it will fulsomely support the ICJ rulings in the case against Israel.
Mearsheimer and the long view of history
Like Professor Byers and Sarang Shidore, John Mearsheimer believes this case has “huge implications” for the United States, and especially President Biden and his principal lieutenants, writing:
Leaving aside the legal implications of his behavior [namely potential complicity in genocide], Biden’s name — and America’s name — will be forever associated with what is likely to become one of the textbook cases of attempted genocide.
Regardless of how this case plays out in the ICJ — and here I am fully aware of the maneuvers that the United States and Israel will employ to avoid a fair trial — in the future Israel will be widely regarded as principally responsible for one of the canonical cases of genocide.
Possible legal implications for the US and other allies of Israel
In its detailed assessment of the “promise and risk” of the South African genocide case against Israel, Just Security identifies some of the legal implications for the US, writing:
As a party to the Genocide Convention, the United States has an obligation to take affirmative action to prevent genocide. If the ICJ finds a prima facie case that it has jurisdiction to hear the case, that could force lawyers within the U.S. government to consider the legality of, for example, ongoing financial and military assistance to Israel.
Canada too would be forced to consider the legality of its ongoing arms exports to Israel.
What about the International Criminal Court?
While the ICJ settles disputes between nations, the ICC prosecutes individuals for war crimes, crimes against humanity and genocide.
Balkees Jarrah, Associate International Justice Director at Human Rights Watch, stresses that the ICJ case
is not a criminal case against individual alleged perpetrators, and it does not involve the International Criminal Court (ICC), a separate body. But the ICJ case should also propel greater international support for impartial justice at the ICC and other credible venues.
Our last post of 2023 reiterated our call for Canada to immediately halt all arms exports to Israel in light of Canadian-made components being integrated into the Israeli F-35I Joint Strike Fighter, which has reportedly been utilized in the ongoing bombardment of Gaza, in circumstances that could amount to war crimes.
Within one month of the mid-January hearing, there is a strong possibility that the ICJ will issue a provisional order that Israel immediately suspend its military operations in Gaza, due to plausible allegations of genocide. To avoid any possibility of complicity in genocide, Canada must suspend all Canadian military exports to Israel immediately.
We urgently call for the Government of Canada to avoid any potential complicity in genocide by immediately suspending military assistance and arms sales to Israel.
We also call on Canada to follow up its welcome statement of support for the International Court of Justice with a statement of intent to actively and fulsomely support the decisions of the Court in the South Africa case.
Noting the tangible contribution that ceasing arms exports would make to this end, we reiterate our call on Canada to take tangible states to help bring about an immediate humanitarian ceasefire.
Arms Embargo parliamentary petition E-4745
Initiated by Michael Bueckert and presented to Parliament by NDP Foreign Affairs critic Heather McPherson, parliamentary petition E-4745 reads as follows:
Petition to the Government of Canada
- Israel’s war with Hamas killed almost 20,000 people in Gaza in the two months between October 7 and December 18, 2023, with about 70% of them women and children;
- The civilian casualty rate in this war is significantly higher than the average rate in all the conflicts around the world during the 20th century;
- In the occupied West Bank, 2023 has been the deadliest year on record since the UN began reporting in 2005, with at least 477 Palestinians killed by Israeli fire;
- The value of Canada’s arms trade with Israel has been accelerating in the last few years, and in 2022 Canada transferred over $20m in arms to Israel, the third-highest level on record, even adjusted for inflation;
- Canada has a legal responsibility under the Arms Trade Treaty (ATT), and its harmonized domestic legislation, to ensure its arms exports are not used in the commission of serious violations of international law, or serious violence against women and children; and
- In the past, Canada has imposed a two-way arms embargo on Israel as a response to violence against Palestinian civilians; notably, in the late 1980s during the first intifada.
We, the undersigned, citizens and residents of Canada, call upon the Government of Canada to:
- Impose a two-way embargo on arms between Canada and Israel;
- Investigate whether Canadian weapons or weapons components have been used against Palestinian civilians in the occupied Palestinian territories, including during the current war on Gaza;
- Review all military and security cooperation between Canada and Israel; and
- Close loopholes that allow the unregulated and unreported transfer of military goods to Israel through the United States.
The petition opened for signature on December 21, 2023 and will close for signature on February 19, 2024 at 4:25 pm (EST).
PLEASE CLICK HERE TO SIGN THE PETITION (34,757 signatures as of 5:45 pm 5 January 2024).
Editor’s note: This petition was initiated before the ICJ genocide case was filed by South Africa against Israel.
WE ALL HAVE A ROLE TO PLAY IN SECURING A GAZA CEASEFIRE
WE MUST CONTINUE TO PRESS OUR GOVERNMENT TO TAKE CONCRETE STEPS IN SUPPORT OF AN IMMEDIATE CEASEFIRE AND FULL HUMANITARIAN ACCESS TO GAZA.
Prime Minister Justin Trudeau: < firstname.lastname@example.org >
Foreign Minister Mélanie Joly: < email@example.com >
Leader of the NDP Jagmeet Singh: < Jagmeet.Singh@parl.gc.ca >
Leader of the Conservative Party Pierre Poilievre: < firstname.lastname@example.org >
Leader of the Bloc Quebecois Yves-François Blanchet: < Yves-Francois.Blanchet@parl.gc.ca>
Green Party Critic Elizabeth May: < Elizabeth.May@parl.gc.ca >
And find your local Member of Parliament HERE.
Photo credit: Wikimedia, Maj Ofer (Israeli Adir F35 fighter jet) (UNICEF UK, Gaza destruction)
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