The International Institute for Middle East and Balkan Studies (IFIMES)[1] based in Ljubljana, Slovenia, regularly conducts analyses of events spanning the Middle East, the Balkans, and global affairs. IFIMES analyzes Israel's position after the lawsuit filed by South Africa (RSA) before the International Court of Justice (ICJ) in The Hague. From the extensive analysis titled "Israel – ICJ 2024: Israel before the International Court of Justice," we highlight the most interesting parts.
The International Court of Justice (ICJ) in The Hague, marked a historic precedent on 11 January 2024, as the highest judicial body of the United Nations began considering the claims of the Republic of South Africa (RSA) in its lawsuit against Israel alleging the commission of "the crime of genocide" against Palestinians in the Gaza Strip. South Africa accused Israel before the ICJ, of violating the Convention on the Prevention and Punishment of the Crime of Genocide[2] and committing "acts of genocide" in the Gaza Strip. South Africa believes that the attack carried out by Hamas on 7 October cannot justify Israel's actions in Gaza.
It is a historic precedent as it is the first time a Jewish state is prosecuted under the UN Convention on Genocide, enacted after World War II in light of the crimes committed against the same people, the Jews, during the Holocaust.
In the 84-page application[3], South Africa asserts that Israel's actions and the killing of Palestinians are "genocidal in character" because they were committed with a specific intent to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, and ethnic group.
The complaint further alleges that Israel's conduct, through its state organs, state agents, and other persons and entities acting on its instructions or under its direction, control or influence, constitutes a gross violation of its obligations towards Palestinians in Gaza. The application states that Israel has failed to prevent genocide and has not prosecuted direct and/or public incitement to commit genocide.
The South African legal team, led by Justice Minister Ronald Lamola, argues that "Israel's genocidal intent exists, and the goal of its soldiers is to destroy Gaza. Palestinians are subjected to continuous bombardment wherever they turn, and more than 80% of the Gaza population suffers from hunger."
The legal team emphasized the presence of warmongers in Israel who contributed to the committed genocide in Gaza, including ministers such as Defense Minister Yoav Gallant, who used the term "human animals." Even Israeli Prime Minister Benjamin Netanyahu, drew on ancient biblical myths in a televised speech on 25 October 2023, to justify his intention to continue the war in the Gaza Strip. He invoked the "prophecy of Isaiah": "We are children of light while they are children of darkness, and light will triumph over darkness." In a statement that sparked outrage, Benjamin Netanyahu recalled a legend from the First Book of Samuel: "Now go and smite Amalek[4], and utterly destroy all that they have and spare them not; but slay both men and women, infant and suckling, ox and sheep, camel and ass, and fight them until they are destroyed."
The Republic of South Africa urges the ICJ[5] to indicate provisional measures to compel Israel to "prevent genocide, stop genocide, and punish the perpetrators of genocide." These provisional measures aim to prevent further deterioration of the situation while the trial is ongoing. It also calls on the ICJ to issue nine provisional measures ordering Israel to immediately suspend its military operations in Gaza and take necessary steps to punish those involved in acts of genocide, preserve evidence of genocide, obstruct international personnel and other relevant officials from accessing Gaza for such purposes, submit regular reports to the ICJ on the implementation of the aforementioned measures, and refrain from actions that would complicate or prolong the case.
South Africa's application is notable for its use of the term Erga omnes partes (rights or obligations that apply or are enforceable against everyone). Updated after Gambia's international law case against Myanmar in 2019, this principle refers to a state's obligations towards the international community as a whole. It extends beyond the boundaries of bilateral or multilateral agreements. This concept means that the fundamental principles and standards of international law, such as the prohibition of genocide, are obligations that all states have to the international community as a whole. Violations of these obligations are considered crimes against the international order, giving each state the right to take necessary measures to ensure the prevention of such violations.
The International Court of Justice in The Hague is a body of the United Nations. It should be noted that the ICJ only resolves disputes between states. It does not have the authority to prosecute individuals or issue arrest warrants.
Comprising 17 judges, including one ad hoc judge each from Israel and South Africa, the Court will deliver its ruling on provisional measures after hearing arguments from both parties by the end of January. While ICJ rulings are legally binding, the court lacks the means to enforce them.
The court's effectiveness relies on cooperation between the parties involved. When parties agree to the court acting as an arbiter, they generally respect its decision. However, there is a possibility that the losing party may not comply with the court's ruling. The only way to enforce a court decision is through the use of military force, which requires authorization from the UN Security Council. Given that the US administration has expressed the opinion that South Africa's claim lacks a legal basis, it is assumed that it will protect Israel in the UN Security Council by using its veto power.
In recent years, the ICJ has handled two other cases related to genocide. The first was the case filed by Gambia against Myanmar to protect the Rohingya people in 2019[6], and the second was the case filed by Ukraine against Russia in 2022[7] contesting President Vladimir Putin's justification of the Donbas invasion as genocide prevention. In both cases, the ICJ issued provisional measures, and deliberations regarding the full merits of the cases are still ongoing.
ICJ rules allow for a state that is a party to a case and does not have a judge from its own country on the bench to appoint an ad hoc judge, as is the case with Israel and South Africa. The two ad hoc judges from Israel and South Africa are former President of the Israeli Supreme Court Aharon Barak and former Deputy Minister of Justice of South Africa Dikgang Moseneke, who took the oath before the President of the ICJ, Judge Joan Donoghue.
Israel anticipates that the International Court of Justice (ICJ) might issue provisional measures against the country without ordering a total ceasefire. The ICJ may instruct Israel to allow the entry of humanitarian aid into the Gaza Strip, form an impartial investigative committee, or permit the return of Palestinians to the northern part of the Gaza Strip. There is a realistic chance that the ICJ will respond favourably to South Africa's request and issue provisional measures due to the relatively low evidentiary threshold at this stage of the legal proceedings. To secure its desired outcome in this case, the applicant state must convince at least 9 out of the 17 judges that Israel's actions in Gaza meet the legal definition of genocide and that there is an urgency to stop them.
During the proceedings in The Hague, the legal advisor to the Israeli government announced her intention to legally scrutinize several extremist statements made by high-ranking Israeli figures who recently called for deliberate harm to innocent civilians in the Gaza Strip. In a joint statement with State Attorney Amit Eisman, they emphasized that “the State of Israel, including its security services, is obligated to act in accordance with the principles of international law and the laws of war.'" Statements that may call for, among other things, intentional harm to civilians, are contrary to established policy and may constitute a criminal offence, including incitement to commit a crime. The Court might consider some statements as incitement to genocide. Israel must prove in the course of the proceedings that its activities in the Gaza Strip align with defensive objectives and comply with the laws of war. They also have to demonstrate that any deviation from the law is investigated, and those responsible will be brought to justice.
Despite the animosity between Benjamin Netanyahu and his ministers towards retired liberal judge Aharon Barak, former President of the Israeli Supreme Court, Netanyahu was compelled to choose him to represent Israel in the team of judges before the International Court of Justice. Judge Barak, a Holocaust survivor, has a significant international reputation in academic and legal circles.
The prevention of genocide was undoubtedly the ambition of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG)[8] adopted by the UN General Assembly in Paris after World War II and the Holocaust. It can be said that this agreement, more than any other, is the result of the efforts of one person, the Jewish lawyer Raphael Lemkin from Poland, who emigrated to the United States fleeing the Nazis.
In 1944, Lemkin coined the term "genocide" for what then-British Prime Minister Winston Churchill called the "crime without a name" and spent the first post-war years lobbying at the UN. However, despite his personal victory at the UN, Lemkin failed to convince the US Congress to ratify the agreement. The Senate even refused to hear it, and lawmakers raised concerns that such a law would leave the United States vulnerable to prosecution.
Lemkin believed that only the United States had the power and international standing necessary to impose the agreement and make it global law. It wasn't until 1988 that the US Senate finally ratified the Convention and declared genocide a crime under US law. The ratification included conditions, notably requiring approval from the US government for any case brought against the United States.
Many politicians often use the term genocide for a wide range of crimes such as war crimes or crimes against humanity. However, defining and qualifying genocide is not about the number of deaths. The most important criterion is the "genocidal intent" to physically destroy groups of people based on their race, nationality, religion, or origin. In recent years, politicians have repeatedly used the term genocide to describe human rights violations in China in 2021, but China has yet to be charged with genocide by the International Court of Justice for its actions against its Uyghur minority.
Legal experts point to three types of genocide recognized by the International Criminal Court: Rwanda, where nearly 800,000 Tutsis and moderate Hutus were killed in the genocide of 1994; the Srebrenica genocide in Bosnia and Herzegovina in 1995; and the mass killings committed by the Khmer Rouge in Cambodia in the 1970s. While the law clearly defines what genocide is, there are attempts to use the term for events that do not meet the legal definition of genocide, whether related to the Uighurs in China or the current war in Ukraine. Experts emphasize the difficulty of proving "intent" due to the frequent lack of direct evidence.
Israeli Ambassador to Britain, Tzipi Hotovely, compared the bombing of the Palestinian Gaza Strip by the Israeli Defense Forces (IDF) to the Allied bombing of the German city of Dresden during World War II, stating that it was the "only way" to defeat Nazi Germany and now to overcome the Hamas movement in the Gaza Strip.
The destruction of Dresden was a sustained three-day bombing campaign that took place from 13 to 15 February 1945, in the closing months of World War II, with the intent of forcing Nazi Germany to surrender. The Allied mass bombing resulted in the obliteration of over 90% of Dresden and the deaths of more than 25,000 German civilians, sparking worldwide controversy regarding the legal definition of this operation and its outcome. Consequently, the definition of genocide does not apply to this Allied action.
The decades-long debate surrounding the application of international laws and conventions under various circumstances, and the victor's ability to justify their actions using seemingly unacceptable or illogical arguments, continues to this day.
The statement by the Israeli ambassador in the UK suggests that this time, Israel is playing the same role as the Allies in the bombing of the German city, an event that remains controversial to this day. The similarity lies in the historical precedent set by the bombing of Dresden, showcasing the power of strategic bombing, despite international legal experts considering it a war crime, with some even describing Dresden as the “German Hiroshima."
Israel's participation in the International Court of Justice (ICJ) proceedings to defend against accusations of crimes against humanity in Gaza represents a significant and potentially beneficial shift in Israel's legal strategy. Israel's decision signifies changes in its longstanding policy of non-participation, as seen in 2004 when it chose not to appear before the International Court of Justice for a case regarding the legality of the West Bank security barrier. Israel ignored the ruling, citing a “refusal to recognize the court's jurisdiction”.
According to international law experts, proving "genocidal intent" and conflating war crimes with genocide are the most significant challenges in this case. For now, the ICJ lacks concrete evidence other than dozens of statements made by Israeli officials expressing intent to commit genocide. Without these statements, it's unlikely the lawsuit would have reached this stage, and Israel might not have taken this issue so seriously.
Israelis and Palestinians should look toward the future by achieving lasting peace through a peace agreement, coupled with universal forgiveness, inspired by the father of the modern South African Republic, Nelson Mandela, and his model of flexibly dismantling the system of racial domination and discrimination. Mandela did not forget to criticize Israel for its past support of the apartheid regime in South Africa. However, after the signing of the Oslo Accords in 1993 between Israel and the Palestinians, he called for a two-state solution. Relations with Israel experienced exceptional development during Mandela's rule. On the day he received the Nobel Peace Prize in 1993, Mandela remarked that he would have awarded the prize to the then-Israeli Prime Minister Yitzhak Rabin, whom he considered more deserving than himself. Consequently, a year later, the 1994 Nobel Peace Prize was awarded to Yitzhak Rabin, Shimon Peres, and Yasser Arafat.
Ljubljana/Washington/Jerusalem, 17 January 2024
[1] IFIMES - International Institute for Middle East and Balkan Studies, based in Ljubljana, Slovenia, has a special consultative status with the United Nations Economic and Social Council ECOSOC/UN in New York since 2018, and it is the publisher of the international scientific journal "European Perspectives."
[2] Convention on the Prevention and Punishment of the Crime of Genocide www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
[3] South Africa’s submission to the International Court of Justice https://d3i6fh83elv35t.cloudfront.net/static/2024/01/192-20231228-app-01-00-en.pdf .
[4] Amalek and Gazans: Netanyahu's Biblical Reference Amid the Gaza-Israel Conflict www.youtube.com/watch?v=BcDYIQ_QdVY
[5] The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). www.icj-cij.org/index.php/court
[6] Gambia initiated a case under Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention"), which allows disputes between parties "concerning the responsibility of a state for genocide" to be brought before the ICJ. Myanmar ratified the Genocide Convention in 1956.
https://iimm.un.org/icj-the-gambia-v-myanmar/
[7] Ukraine filed an application with the ICJ, the United Nations, on February 26, 2022, two days after the Russian army launched an offensive on its territory. www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf
[8] Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG)
www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
