Did South Africa Seal the Deal?
The purpose of this discussion is to analyze the legal grounds on which South Africa presented the case in front of the International Court of Justice (ICJ) that include the genocidal acts under the Convention on Prevention and Punishment of the Crime of Genocide, the intent, Jurisdiction, the urgency due to the irreparable harm caused, and the fundamental rights at stake. The case mentioned the staggering death toll from the “sustained bombardment” of one of the most densely populated places in the world. Since Israel launched its land and air assault on the enclave, more than 23,000 Palestinians have been killed, including more than 8,000 children. More than 55,000 Palestinians have been injured and nearly 2 million have been displaced (US News). The South Africa’s lawyers team presented the case in a precisely compelling manner. We will be starting with the brief background and then evaluate the grounds individually by assessing what would be the possible implications of this case in the ICJ.
On December 29, 2023, a significant development revealed on the international stage. South Africa initiated legal proceedings against Israel at the International Court of Justice (ICJ), alleging its violation of the Genocide Convention in relation to the Palestinian population in the Gaza Strip. This lawsuit marks a dramatic escalation in tensions between the two nations and signifies a major step towards seeking legal accountability for potential human rights abuses.
South Africa’s application not only accuses Israel of violating the Genocide Convention but also urges the ICJ to implement provisional measures under Article 41 of the Court’s Statute. These measures aim to prevent further harm to the Palestinian people and ensure Israel’s compliance with its obligations under the Convention, specifically those preventing and punishing acts of genocide.
The urgency of this request is underlined by Article 74 of the Court’s Rules, prioritizing cases involving provisional measures above all others. This signifies the potential gravity of the alleged violations and the need for immediate action to protect the well-being of Palestinians in Gaza. This landmark application sets the stage for a potentially complex and impactful legal battle at the ICJ. The court’s eventual decision could have significant ramifications for both countries and potentially shape future international responses to alleged human rights violations.
First of all, the legal representatives of South Africa posit it as a genocidal act. Article 2,3 and 4 Genocide Convention 1948 deal with what amounts to genocide, its prohibition and it being the punishable act. The key elements of the genocide contain the actus reus and the mens rea. It states that,
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The legal grounds presented by South Africa to prove Israel’s genocidal acts in Gaza are extensive and encompass various aspects, linking them to provisions outlined in the Genocide Convention. The evidence put forth includes:
- Killing Palestinians in Gaza:South Africa alleges that Israel is causing mass casualties, targeting not only combatants but also civilians, especially women and children.The high number of reported deaths and missing persons, including entire families, is emphasized as evidence of genocidal intent.
- Causing Serious Bodily and Mental Harm:The extensive injuries inflicted on over 55,000 Palestinians, with specific mention of burns, amputations, and the use of white phosphorus, are highlighted.Deliberate targeting of healthcare facilities and the resulting lack of medical assistance contribute to the argument of intentional harm.
- Mass Expulsion and Displacement:Israel’s actions leading to the forced displacement of over 1.9 million Palestinians are presented as genocidal, creating conditions for the physical destruction of the population.The destruction of homes on a large scale, rendering areas unlivable, is emphasized as evidence of a calculated effort.
- Deprivation of Access to Adequate Food and Water:The imposition of a siege, limiting access to essential resources like food, water, and fuel, is presented as a deliberate act to cause suffering.Starvation levels rising daily and the impact on vulnerable groups, such as lactating women and newborns, are highlighted.
- Deprivation of Adequate Medical Assistance:The intentional targeting of Gaza’s healthcare system is portrayed as an attack on the population’s ability to survive. The high number of attacks on healthcare facilities and the killing of health workers are cited as evidence of genocidal intent.
- Destruction of Palestinian Life:Targeting essential infrastructure, including religious sites, universities, and historical archives, is framed as an attempt to erase the cultural and historical identity of the Palestinian people.The deliberate destruction of the foundational civil system is presented as a genocidal act.
South Africa relates these actions to the Genocide Convention, arguing that the cumulative effect demonstrates a systematic effort by Israel to destroy, in whole or in part, the Palestinian population in Gaza. The evidence is aligned with the Convention’s definition of genocide, emphasizing not only the loss of life but also the intentional infliction of conditions leading to the physical destruction of a specific group.
Moving on to the second element i.e. Mens rea or the intention, it has been asserted that the intent is distinctly discernible through the undeniable statements voiced by Israeli executives. The lawyers established a compelling connection between the words and actions of the Israeli executives including the Prime Minister Benjamin Netanyahu, political leaders and commanders, being explicit enough to be filtered down all the way into the soldiers on ground. However, the intention does not have to be actual that it is declared, it could be inferred from their conduct which has been reported since the bombing and atrocities started in Gaza. Moreover, Israel’s alleged genocidal intent towards Gaza is argued to be rooted in a belief system that extends beyond targeting the military wing of Hamas. The key elements supporting this claim include:
- Israeli Prime Minister Benjamin Netanyahu’s declarations of war on Gaza and the intention to clear out communities infiltrated by terrorists are presented as indicators of genocidal intent.
- Israel’s role as the occupying power in Gaza, managing movements, and the Prime Minister’s command over the Israeli Defense Force, are emphasized as factors contributing to the alleged genocidal intent.
- Netanyahu’s reference to biblical commands, specifically mentioning the remembrance of what Amalek has done, is highlighted, suggesting a connection to a retaliatory and destructive approach.
- Statements by the Speaker of the Knesset calling for the erasure of the Gaza Strip and Defense Minister Yaakov Litzman advocating for a total siege on Gaza contribute to the argument of genocidal intent.
- Accusations of Israeli officials using dehumanizing language, such as referring to Palestinians as “human animals” and expressing a desire for their destruction, form part of the narrative.
- Reports of soldiers allegedly acting in alignment with the claimed genocidal intent, along with senior military officials encouraging such actions, are presented as evidence.
- Claims that members of the Knesset have repeatedly called for the destruction of Gaza and its inhabitants further support the argument of genocidal intent.
The overall contention is that these statements and actions collectively indicate a genocidal intent towards Gaza by Israel, particularly at the policy level. The intent, according to the legal team, is rooted in beliefs, official statements, and actions that allegedly seek the destruction of the Palestinian population in Gaza.
Furthermore, in order to satisfy the jurisdiction, the South African lawyers steer through the historical context, diplomatic efforts, legal provisions, and the persistent nature of the situation to assert that the International Court of Justice should intervene to prevent ongoing genocidal acts. The core contention revolves around the urgency of the situation and the obligation of the state parties to the Genocide Convention. They begin by emphasizing the gravity, framing the prohibition of genocide as a preemptory norm as the Convention obligates the states not only to refrain from genocidal acts but also to prevent them (aligning with Article I of the Genocide Convention). They further highlight the role of state parties as the guardians of Convention, as stated in Article 9, which stresses the duty to prevent genocide and protect human rights. This argument rejects the notion that negotiation is a prerequisite before seeking court’s jurisdiction, especially in the genocide cases. The argument implies that insisting on negotiations might provide a window for continuing genocidal acts.
Not just that, the South Africa’s diplomatic efforts, including voicing concerns at the Security Council, condemning Israel’s actions, and sending a diplomatic demarche, highlight its commitment to exhausting diplomatic channels. The subsequent referral to the ICC aligns with the convention’s objective to prevent and punish genocide. Israel’s official denial on December 6 and the lack of a substantial response to South Africa’s accusations contribute to the characterization of an unresolved dispute coupled with the absence of clear denial from Israel adds weight to the South African claims. The lawyers argue that the dispute remains unresolved due to ongoing actions in Gaza. The proposal for a meeting in January, declined by Israel until after ICC hearings, emphasizes the urgency perceived by South Africa in preventing further genocidal acts. South Africa’s persistence in accusing Israel of genocidal acts, including deliberate targeting of civilians and intentional starvation, heightens the severity of the situation. Israel’s persistent denial sets the stage for a legal confrontation. By referencing the court’s flexible approach and the burden of proof, South Africa establishes its position on the legal requirements for recognizing the existence of a dispute. Israel’s awareness or, at least, the inability to be unaware of opposing views strengthens South Africa’s claim.
What does South Africa demand:
To kick things off, South Africa is urging the court to issue an emergency provision, essentially asking for an immediate halt to Israel’s operations in Gaza. This isn’t the full-blown determination of genocide just yet, but rather a pressing request with a lower legal threshold. These provisional measures, as explained by Leila Sadat, the special advisor on crimes against humanity to the International Criminal Court prosecutor, serve as a means to compel warring states to cease their actions temporarily. The primary goal is to prevent potential “irreparable harm” while the court deliberates on the case’s merits. In Israel’s case, provisional measures do not equate to definitive ruling on genocide. Rather, it resembles the court issuing a restraining order for the duration of the case. South Africa, in its plea, is seeking the implementation of nine provisional measures with a significant focus on compelling Israel to halt any military operations in or against Gaza.
What South Africa is demanding could be termed as an interim measure more precisely, if you expect for this matter to be discussed further, it could take much longer for merits to be discussed as a finding such as genocide is quite complex matter to deal with and can take some time, often years to reach final determination. One gets a sense while watching the case that there was a thread to try and create a pattern of history in order to say it did not just start on October 7th, there’s a lot of history that dates back to the 1940s.
Are the orders by ICJ Enforceable?
So, the ICJ packs a punch even without its own muscle. While it can’t physically force countries to follow its rulings, it throws some serious moral jabs and legal uppercuts. Compliance boosts a state’s international reputation and legal legitimacy, while defiance invites condemnation, isolation, and even sanctions. Also, the court’s decisions can be enforced through other legal channels, and ignoring them can damage a state’s international standing and even have domestic political consequences. Ultimately, while the ICJ doesn’t have its own army, its judgments carry significant weight and its influence shouldn’t be underestimated. Sometimes the power of persuasion can be just as effective, if not more, than brute force. There is a possibility of ignorance by the accused state as in the Russia’s case in 2022. However, the state parties need to be united, in order to force the accused state to adhere to the orders and respect the International law.
How can International Community contribute in preventing genocide?
Preventing genocide is a shared responsibility under International law, and the International community plays a crucial role in it. In the context of Israel-Hamas case, there is an urgent need to implement an immediate ceasefire which involves several significant measures which include:
- The unrestricted delivery of critically needed humanitarian aid to the population in Gaza
- Securing the immediate release of Palestinians arbitrarily detained by Israel.
- Establishing the humanitarian corridors leading to the West Bank, Easy Jerusalem and Israel, prioritizing the most vulnerable groups affected by the conflict.
- Facilitation the unconditional and secure release of hostages held by Hamas.
- Deploying an international protective presence in the occupied Palestinian territory, overseen by the United Nations.
- Implementing an arms embargo on all parties engaged in the conflict.
- Encouraging collaboration from all involved parties with the Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. This collaboration should extend to the Prosecutor of the International Criminal Court, who initiated an investigation in March 2021. Addressing crimes arising from recent events is crucial to countering a lack of deterrence and continued impunity.
Whereas, implementing these measures will face several challenges for example Deploying an international protective presence under the UN supervision raises a concern about balancing sovereignty with protection. The questions regarding accountability and justice arise out of the collaboration with international investigation. It would be a challenge to ensure a thorough and impartial investigation while navigating complex political dynamics.
Even though, the merits of the case will take years to be decided yet there is a hope for provisional measures to be granted in favor of the Palestinians as the humanitarian rights of the civilians are at stake. The United Nations Secretary-General also stated that “We cannot allow what is happening in Gaza to continue”. The advisory opinion by the ICJ could provide an immediate relief but the enforcement remains challenging at the same time. There are chances of this. opinion being disregarded as before, in 2004, or as in case of Ukraine-Russia conflict. Recent developments have demonstrably challenged the prevailing assumptions regarding the efficacy and legitimacy of international law. Concerns have been raised concerning the inconsistent application of its normative framework, the selective allocation of accountability burdens, and the unequal protection extended to victims. However, the states are mandated to prevent these non-humanitarian activities, and they should do so by various actions including diplomatic pressure. The urgency to protect the civilians outweighs the political considerations at this time.