South Africa’s case against Israel for suspected violations in Gaza may take years to resolve.
Photo: The Peace Palace, seat of the International Court of Justice, at The Hague, Netherlands (UN Photo/Jeroen Bouman)
On Friday, the International Court of Justice (ICJ) in the Hague suggested that Israel may have violated the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations in the wake of the Holocaust and World War II. International law scholar Janina Dill described last week’s decision as "a very significant rebuke" of Israel and its allies, particularly the United States.
While the ICJ works to determine if Israel has violated its obligations under the treaty as it relates to Palestinians in Gaza, the court has ordered "provisional measures" – a sort of injunction against Israel meant to prevent "irreparable harm." The court also urged Hamas to release Israeli civilians abducted and held hostage by Hamas since the Oct. 7 terrorist attack.
In retaliation for the Oct. 7 attack, Israel has conducted a military operation resulting in more than 26,000 Palestinians dead and 64,000 wounded, according to Gaza’s health ministry. A staggering 1.9 million people, roughly 80% of Gaza’s population, have been displaced, Human Rights Watch reports. More than half the residents of Gaza are at risk of starvation.
Growing concern for those affected by this war
International human rights groups have from the start of the war expressed concern for the lives of Israeli and Palestinian civilians, and have spoken out against violations of international law by Hamas and Israel. Amnesty International called for the immediate and unconditional release of the hostages. Hostage taking is a war crime under international law, as is the targeted killings of civilians. Hamas took an estimated 250 hostages and killed over 1,200 people on Oct. 7.
When Israel retaliated against Gaza, cutting off electricity, food, and fuel, leaders at Amnesty called it a war crime and implored the warring parties to "abide by international law and make every effort to avoid further civilian bloodshed." But Hamas continues to hold hostages. And Israel’s military operations, especially bombing campaigns, have destroyed Gaza beyond recognition. In addition, as I wrote in a recent piece here at Good Authority, experts at the United Nations and elsewhere worry that Palestinians in Gaza are at risk of genocide, if not already experiencing it.
South Africa lodged a formal complaint
South Africa, a longtime supporter of Palestine, became increasingly concerned about a possible genocide of Palestinians in Gaza. In December, South Africa lodged a complaint against Israel at the ICJ and requested a long list of provisional measures, including a ceasefire. (In separate ICJ proceedings, Indonesia is also planning to challenge Israel’s occupation of Palestine.)
It is significant that South Africa initiated the ICJ proceedings when international law would have allowed any country to do so. Israel was an ally of the apartheid government, selling weapons and giving international legitimacy to South Africa’s white-minority government, which denied equal citizenship and human rights to Black, Asian, and multiracial people.
Human rights advocates have criticized Israel as an apartheid state that denies the freedom and equal rights of Palestinians. Israel rejects the apartheid state label. But in 1997, President Nelson Mandela – South Africa’s first post-apartheid president, who himself experienced repression by the apartheid government, including 27 years as a political prisoner – made an explicit connection between South Africans and Palestinians, saying, "our freedom is incomplete without the freedom of the Palestinians."
The ICJ order to prevent genocide
The ICJ in its judgment did not order a ceasefire, but it did order Israel to prevent genocide of Palestinians in Gaza. The court also ordered Israel to prevent and punish public incitement to commit genocide – an apparent warning to Israeli leaders who have used dehumanizing language to describe their adversaries as "human animals" and threatened to "eliminate everything" and "reach in all places."
The court also ordered Israel to allow humanitarian assistance to flow into Gaza. Moreover, Israel must preserve evidence of possible violations of the Genocide Convention, in relation to Palestinians in Gaza. And Israel now has one month to report back about how it is complying with the court’s order.
South Africa applauded the court’s decision, claiming "a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people."
The "blockbuster decision" gave South Africa "almost everything it could have reasonably hoped for," according to law scholar Oona Hathaway. She notes that even the Israeli ICJ judge agreed with parts of the order, though "The question is what happens next." Law scholar David Kaye suggests the court threw Israel’s allies, the United States in particular, "a lifeline, a path to a new policy toward the conflict that is rooted in international norms."
A closer look at South Africa’s complaint
On Dec. 29, 2023, South Africa filed its complaint against Israel at the ICJ, one of the six principal organs of the United Nations. The ICJ’s mandate is to settle disputes between states regarding the interpretation, application, and fulfillment of international law – including the Genocide Convention, which both South Africa and Israel have ratified.
South Africa alleged that Israeli actions in Gaza are "genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group."
Countries that have ratified the Genocide Convention have an obligation to prevent and punish genocide, which consists of one or more of five physical acts committed against a national, ethnic, racial, or religious group with the intent to destroy all or part of that group. These are listed in the convention's second article:
Killing members of the group
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
Imposing measures intended to prevent births within the group
Forcibly transferring children of the group to another group
The convention's third article lays out punishable offenses:
Conspiracy to commit genocide
Direct and public incitement to commit genocide
Attempt to commit genocide
Complicity in genocide
Israel says it is not committing genocide
The Israeli government has denied that Israel is committing or has committed genocide, and that government officials are inciting or have incited people to commit genocide against Palestinians in Gaza. Instead, Israel argues that the military operation in Gaza since Oct. 7 has been in self-defense.
Under international law, a country has a right to defend itself. And Israel’s allies have a right to support Israel’s response to numerous unspeakable and illegal acts by Hamas, including indiscriminate killings and hostage taking. Israel’s right of self-defense is not in question.
What is in question is whether Israeli actions in Gaza amount to atrocities, specifically genocide or other related offenses listed in the Genocide Convention (like incitement to commit genocide). The right to self-defense is not without limits or conditions. Atrocity crimes like genocide cannot be perpetrated in the name of self-defense. (The International Criminal Court, a separate legal body also located in the Hague, has been investigating a wider set of atrocity crimes, including war crimes and crimes against humanity, by Israeli and Palestinian forces since 2014.)
Israel said South Africa lacks standing
In response to South Africa’s complaint, Israel said South Africa lacks standing in this case, because there is no real dispute between the two countries.
While South Africa is a third party, physically removed from the acts in question, the country’s representatives have argued that it has standing to bring a case against Israel at the ICJ for possible violations of the Genocide Convention, because it is a treaty member and has a stake in the convention’s fulfillment. South Africa’s lawyers also argued that since both South Africa and Israel are party to the Genocide Convention and they have fundamental disagreements about the convention’s fulfillment, the ICJ has jurisdiction. The court’s judges agreed with South Africa on Friday.
The ICJ hasn’t determined whether genocide is occurring
To be clear, the ICJ’s decision last week wasn’t about whether Israel has in fact violated any part of the Genocide Convention. That question could take years to resolve. The decision was about whether Israel has plausibly violated the convention. The court believes it is plausible that Israel has violated the convention.
The question now is whether Israel will comply with the court’s order. While countries often comply with ICJ judgments, they sometimes don’t. For example, Russia, which also has a case at the ICJ initiated by Ukraine in 2022, hasn’t complied with provisional measures the court ordered.
The ICJ also doesn’t enforce its own orders. Instead, it relies principally on the U.N. Security Council to do so. But Israel’s most stalwart ally, the United States, wields an important veto at the U.N. and could use it if other Security Council members propose a resolution against Israel.
Rather than shield Israel from further scrutiny and criticism, however, the Biden administration could, as David Kaye advises, "embrace the court’s ruling, deploying it as a new diplomatic tool to end Israel’s military operation and force Hamas to release the hostages it still cruelly and unconscionably holds in Gaza."
As political scientist Karen Alter describes in her book The New Terrain of International Law, the ICJ has used its "power to speak the law" and put pressure on Israel and its supporters to shift course. This means upholding Israel’s right to self-defense, yes, but also respecting the rights of Palestinian civilians, including by preventing and punishing violence against them.
Kelebogile Zvobgo - January 30, 2024
Originally published in Good Authority, cc: 4.0