South Africa’s request for an interim measure by the international court of justice to prevent Israel from committing acts of potential genocide – primarily by calling for a halt to combat operations – has suddenly taken on an urgency and relevance that seemed implausible a fortnight ago.
Crack legal teams are being assembled, countries are issuing statements in support of South Africa, and 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.
The initial court session in The Hague is scheduled for January 11th and 12th. Based on past cases, there is a chance that the ICJ will make a temporary decision within a few weeks, possibly while the Israeli strikes on Gaza are still ongoing.
The process of global justice, particularly interim justice, does not always proceed slowly.
South Africa’s request for a provisional ruling is in line with a broader trend at the ICJ for such rulings. Parties have been seeking – and obtaining – provisional measures with increasing frequency: in the last decade the court has indicated provisional measures in 11 cases, compared with 10 in the first 50 years of the court’s existence (1945-1995).
ICJ provisional measures aim to maintain the current legal state between parties in order to protect the fairness of a final decision. In the past, there was uncertainty about whether these measures were considered mandatory by the ICJ. However, in the LaGrand case in June 2001, the court confirmed that these rulings are indeed binding, as it is the court’s primary role to resolve international disputes through legal means.
Are they enforced in reality?
According to a report by US lawyer Mattei Alexianu, only half of the state parties have complied with the court’s measures. In some notable cases, such as Ukraine v Russia in 2022, the Gambia’s accusation of genocide against Myanmar in 2020, Nagorno-Karabakh, and US sanctions on Iran, the state party that lost the case chose to defy the court.
As expected, when a ruling was deemed to interfere with a country’s sense of national sovereignty, they were less likely to adhere to it.
Ignoring the question of whether Israel would follow an ICJ ruling to alter its military strategies and refrain from actions deemed as genocide, a decision against them would greatly harm their reputation. At the least, it could result in a change to their military operations. The fact that Israel has decided to defend themselves at the ICJ, a UN-backed organization, and is a party to the genocide convention, makes it difficult for them to dismiss any negative verdict.
This decision by Israel carries a lot of risk. What is the likelihood of an unfavorable outcome?
Initially, it must be acknowledged that even though the South African submission to the ICJ may have appeared unexpectedly on 29 December, it was not hastily put together by its legal team while preparing for Christmas.
It is a substantive, tightly argued 80-page claim, replete with detailed references to senior UN officials and reports, which only rarely strays from its chief necessary purpose of seeking to prove Israel’s genocidal intent. The lawyers South Africa is sending to The Hague are its best. Much of South Africa’s argument is derived from the ICJ judgment on provisional measures it issued in the Gambia v Myanmar case in 2020.
Based on the app, Israel’s actions and lack of actions are considered to be genocidal. This is because they are done with the specific intention of destroying Palestinians in Gaza, as well as the broader Palestinian group based on their nationality, race, and ethnicity. The app also states that Israel’s behavior towards Palestinians in Gaza goes against its responsibilities under the genocide convention, through the involvement of its government entities, agents, and other individuals or groups under its influence or direction.
Instead of a final decision, South Africa can request temporary assistance from the court through article 74, which may reduce the burden of proof and address preliminary jurisdictional challenges.
“The court is not obligated to determine if Israel has violated its obligations under the genocide convention,” South Africa contends.
This statement emphasizes that the court can only determine if there was an intent to destroy the Palestinian group during the examination of the case, as stated in a previous ruling.
“Rather, during the process of issuing an order for provisional measures, the court must determine if the alleged actions have the potential to fall under the scope of the genocide convention.”
The court is not required to determine that all of the actions being complained of can potentially fall under the provisions of the convention. It is enough that at least some of the alleged actions could fall within the provisions of the convention.
Likewise, the court is not obligated to determine if the presence of an intent to commit genocide is the sole conclusion that can be drawn from the evidence presented, as this would require the court to make a decision on the substance of the case.
South Africa aims to demonstrate that Israel’s actions surpass self-defense and constitute the decimation of the Palestinian people.
The statement outlines the well-known, yet disturbing, number of fatalities, forced relocation, lack of access to food, and limitations on childbirth due to hospital attacks, arguing that these factors strongly suggest a genocidal motive.
The statement includes two additional aspects – the extent to which Palestinian cultural activities have been deliberately attacked, and the extent to which Israeli authorities have openly called for the elimination not only of Hamas but also of Palestinians without facing any consequences.
The country of South Africa cites multiple instances of Israeli government officials openly encouraging and provoking genocide, with specific mention of Prime Minister Benjamin Netanyahu. The statements threatening to render Gaza uninhabitable and dehumanizing Palestinians as animals are all referenced in the accusation. Additionally, the demands made by far-right ministers Bezalel Smotrich and Itamar Ben Gvir to relocate Palestinians from Gaza are also noted.
Former Israeli officials have sent a letter to the attorney general, Gali Baharav-Miara, urging action against government officials and elected leaders who have advocated for ethnic cleansing. The individuals who signed the letter include former ambassador Dr. Alon Liel, Professor Eli Barnavi, Ilan Baruch, and Suzie Bachar.
According to the statement, advocating for mass violence against millions of individuals has, for the first time in memory, become a accepted and common aspect of discussions in Israel.
Possibly influenced by a growing sense of pessimism in Israel regarding the potential for peace, this type of evidence could influence judges to conclude that Israel sees its security as reliant on the expulsion of Palestinians from Gaza. However, there have also been numerous statements from Israeli leaders contradicting this viewpoint, which the court will need to take into consideration. The Netanyahu administration’s hesitance to address its strategies for post-conflict scenarios, possibly due to domestic political factors, further complicates the court’s job in determining Israel’s collective intentions.
Israel’s spokesperson, Eylon Levy, delivered a powerful rhetorical display on Tuesday, outlining Israel’s planned response. He emphasized their right to self-defense and highlighted the innovative tactics used to minimize harm to civilians.
However, he initially questioned the validity of South Africa’s conflict with Israel and cast doubt on the country’s credibility as a foe of genocide, citing their backing of former Sudanese president Omar al-Bashir in the Darfur crisis. He accused South Africa of acting as a free advocate for Hamas, a genocidal and rapist organization.
In an effort to defend itself from this accusation, South Africa has condemned Hamas for the 7 October massacre and has sent a written statement to Israel prior to the claim. However, Israel did not respond to the statement. Both countries are bound by the 1948 genocide convention, which requires them to comply with the International Court of Justice (ICJ) regarding adherence to the convention.
Levy stated that Israel had implemented tactics never before seen in warfare to reduce harm to civilians.
“We have been clear in word and in deed that we are targeting the 7 October monsters and are innovating ways to uphold international law, including the principles of proportionality, precaution and distinction in the context in a counter-terror battlefield no army has faced before.
For this reason, we spent multiple weeks strongly advising individuals in the northern part of Gaza to leave the area before the ground attack began. In order to alert civilians, we made over 70,000 phone calls, sent 13 million text messages, left 14 million voicemails, and distributed almost 7 million leaflets instructing them to temporarily evacuate for their own protection. We also informed them about humanitarian breaks and specific routes for evacuation.
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This is the reason why we established safe passages for civilians to leave Hamas-controlled areas, established hotlines for Palestinian civilians to report any interference from Hamas, and designated a designated safe area in Gaza where Hamas was using civilians as shields.
“The Hamas rapist machine bears full moral responsibility for all the casualties in this war that it launched on 7 October and is waging inside and under schools, mosques, homes and UN facilities.”
The actions taken by South Africa may be seen as merely for show, and possibly even intentionally ineffective. However, the fact that there is minimal acknowledgement of Hamas fighters using civilians as shields or of Israel’s right to defend itself may make it difficult for the court to accuse Israel of committing the most serious crimes.
Source: theguardian.com
