Understanding the genocide case at the International Court of Justice
In the dynamic landscape of global affairs, understanding political issues and international disputes is crucial for young people. Exploring complex subjects like the ongoing case between South Africa and Israel at the International Court of Justice (ICJ) not only expands our knowledge but also empowers us to engage critically with the world around us. This case, centered on allegations of genocide during Israel’s military operations in Gaza, serves as a compelling example of the intersection between law, politics, and human rights on the international stage. Delving into this matter not only sheds light on the intricacies of the legal system but also highlights the importance of civic awareness and informed participation in shaping a just and equitable global society.
Introduction
On December 29th, South Africa initiated proceedings at the International Court of Justice (ICJ) against Israel for violations of the Genocide Convention during its ongoing genocidal onslaught on Gaza. In its 84-page filing to the ICJ, South Africa asserts that Israel’s actions are genocidal as “they are intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group.”
South Africa and Israel are both signatories of the 1948 Genocide Convention which gives the ICJ the jurisdiction to rule on disputes over the obligations in the treaty. South Africa claims Israel violated the Genocide Convention, which prohibits genocide and obligates states to prevent and punish it.
What is the ICJ?
Established in 1945, the International Court of Justice is a United Nations (UN) body based in the Netherlands. The court is normally composed of a 15-judge panel that reaches decisions by a simple majority. It is widely respected as the most authoritative arbiter of most issues in international law.
The court does two things:
1. Settles legal disputes between states under international law via binding rulings
2.Give non-binding advisory opinions on legal questions referred by authorized UN organs and agencies.
What are South Africa’s claims?
South Africa’s main claim is that Israel is committing genocide and breached 8 other related obligations under the Genocide Convention.
(a) committing genocide against Palestinians in the Gaza Strip (b) failing to prevent genocide
(c) conspiring to commit genocide
(d) direct and public incitement to commit genocide
(e) attempting to commit genocide
(f) complicity in genocide
(g) failing to punish Israelis who committed the above crimes
(h) failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide and related crimes (i) failing to allow and/or impeding the investigation by international bodies or fact-finding missions of genocidal acts committed against Palestinians.
It requested that the Court:
1. Issue urgent provisional measures ordering Israel to
“immediately suspend its military operations in and against Gaza” while the Court tries the case. 2. Confirm that Israel has committed genocide and breached related legal obligations
3. Order Israel to pay reparations to Palestinians in Gaza.
4. Advise countries like South Africa on their legal obligations regarding the prevention and punishment of genocide when carried out by other states.
How do you prove genocide under international law?
Genocide is committed when certain acts are carried out with the intent to physically destroy, in whole or in part, a national, ethnic, racial, or religious group.
Any of the following acts can constitute genocide:
(A) Killing
(B) Causing serious bodily or mental harm
(C) Deliberately inflicting conditions of life calculated to cause the group’s physical destruction (D) Imposing measures intended to prevent births within the group
(E) Forcibly transferring children of the group to another group
Intent is the hardest part to prove.
South Africa must show that (a) Israel’s acts are targeting Palestinians as a group, and (b) that the acts aim to physically destroy all or part of that group. The standard of proof is extremely high.
Timeline
The case is currently at the provisional measures stage meaning that South Africa is only asking the Court to order Israel to cease actions that could plausibly constitute or give rise to violations of the Genocide Convention. The standard of proof is low, as South Africa just needs to prove that its case for genocide is “plausible”.
The provisional measures would be temporary, designed to give the IC judges time to assess if there is enough merit for a full trial to conclusively decide whether Israel is guilty of genocide. The first hearing took place yesterday, where South Africa presented its oral arguments, and the second will take place today, where Israel will present its own. The ruling on provisional measures is expected within weeks, while a final ruling on the case could take years.
Where do countries stand?
Supporting South Africa:
• Brazil, Jordan, Colombia, the Maldives, Malaysia, Turkey, Nicaragua, Pakistan, Iran, Namibia, Venezuela, Bolivia, and Bangladesh.
The Organization of Islamic Cooperation, comprised of 57 states like Saudi Arabia and Morocco, also supports South Africa’s case.
Neutral:
• The European Union has mostly stayed silent and has not come out in defense of Israel.
• France, Mexico, and Costa Rica expressed they would support the Court in any decision it reaches.
• Ireland’s prime minister implied he doubts that Israel is committing genocide, but said it’s ultimately up to the Court to decide.
Pro-Israel:
• The US has attacked the proceedings, fiercely denying any genocide in Gaza. • The UK, Guatemala, and Hungary similarly opposed South Africa’s claim.
Israel’s Judge: Aharon Barak
The ICJ normally has a panel composed of 15 permanent judges, but allowed South Africa and Israel to each appoint an additional judge. Both South Africa and Israel exercised this power, with Israel appointing the former head of its supreme court, Aharon Barak.
During his tenure at the Supreme Court, Barak became known among Israelis as a ‘liberal’ judge but was notorious among Palestinians for his Jewish supremacist rulings.
“His rulings compromised equality, affirmed the ‹ ethnocratic character of the state, and perpetuated the inferiority of non-Jewish citizens.”
– Nimer Sultany, legal academic
Barak defied the 2004 ICJ opinion on the Apartheid Wall by approving the majority of its construction. He also legitimized extrajudicial executions of Palestinians and the expropriation of land in the West Bank to serve settlers.
“ agree totally with what the government is doing 99”
– Barak recently said of Israel’s actions in Gaza.
Are ICJ rulings binding?
ICJ rulings are legally binding upon states.However, the ICJ lacks proper enforceability powers because it does not have the power to punish states.
• For example, when Ukraine filed a case against Russia in 2022, the ICJ ruled in favor of Ukraine’s provisional measures, but Russia defied the court.
While the UN Security Council has the authority to enforce ICJ rulings, members of the Security Council such as the United States have veto power, making US allies such as Israel immune to these rulings. However, such a move would cost the US further political and diplomatic capital, deepening the tensions between it and dozens of states.
Israeli officials have admitted that a ruling against Israel could have serious ramifications for its military, political, and economic relations with other countries. Countries will be hesitant to be associated with genocide after a finding by the IC, which is considered an authoritative and prestigious institution.
If the ICJ rules that Israel committed genocide, it could also pave the way for the International Criminal Court (ICC) to issue arrest warrants and prosecute Israelis for their role in genocide during its ongoing investigation, as the ICC will struggle to ignore an authoritative conclusion from the IC.
This means that while the ICJ itself can never deliver liberation for Palestine, it provides us with new political fuel to transform the discourse, mobilize societies, and escalate our pressure against our corrupt governments to punish and defund the Israeli regime. In other words, it will only help Palestine if we utilize it to fight harder.
Final note from the writer:
As you can you see from the reference down below, this writing piece is from a pro palestine side, so I do need to acknowledge that there might be a bias here. However, my intention of writing political pieces in the student newspaper, is to keep our critical thinking alive. Engaging with issues like the South Africa vs. Israel case not only enriches our understanding of geopolitics but also underscores the interconnectedness of nations in the pursuit of justice. As young individuals, being curious about such matters empowers us to contribute meaningfully to the discourse surrounding international relations, human rights, and the rule of law. Informed participation in global affairs equips us to advocate for positive change, fostering a sense of responsibility towards creating a more just and equitable world.
I’m not here for the “agree with me or else” scene. Nah, I’m all about that free speech and questioning stuff. We’ve got to question everything, right? So, whether you’re on my wavelength or dancing to a different beat, let’s just keep the chat flowing.
Because let’s face it, we’re in this together. And if we want to make this planet a bit more fair and square, we need to step up. So, here’s to sparking conversations, challenging the norm, and making our mark on a world that could use a little more chill and a lot more love.
Bruce D.
Reference: Letstalkpalestine
