The International Court of Justice (ICJ) deliberated on January 11 and 12 on the lawsuit filed by South Africa concerning allegations against the Israeli entity of committing genocide during its ongoing assault on Gaza over the past three months. The Court, established in 1945, is the principal judicial organ of the United Nations with broad jurisdiction. It hears all cases referred to it by parties and matters specifically provided for in the United Nations Charter or active treaties and agreements.
In cases dealing with genocide, the prosecuting party must prove to the Court deliberate acts attributed to the defendant. The legal argument revolves around the verification of the facts and proving the legal definition of "genocide" applies to these actions.
The battle to establish facts and legal definition was the most significant part of the two-day hearings, while South Africa's requests for the Court to take provisional measures ignited a highly important legal debate about the existence of priority rights that necessitate such actions.
Establishing Genocide: The Debate Over Facts and Law
South Africa's case against the Israeli entity hinges on the UN Convention on the Prevention and Punishment of the Crime of Genocide, ratified in 1948. The case falls under the ICJ's jurisdiction when a state is questioned about policies and actions of its officials that may constitute a breach of international obligations under this treaty.
Violation of its international obligations puts a state at risk of international responsibility, as articulated in Article IX of the aforementioned Convention, which forms the basis of South Africa's suit. The Article states that disputes between contracting parties concerning the interpretation, application, or execution of the Convention, including disputes relating to a state's responsibility for genocide or any other acts mentioned in Article III, shall be submitted to the ICJ at the request of any of the disputing parties.
The proceedings at the ICJ start with written petitions from both parties to establish their standing. While the Court considers all applications from UN member states, the plaintiff state need not be a party to the dispute.
South Africa has the capacity to file a case regarding the conflict in Gaza. The ICJ has ruled that any member with an interest in preventing genocide can bring a lawsuit, even if not directly involved in the ongoing conflict.
During the hearings, South Africa, through its written requests and oral pleadings by its representative, aimed to convince the judges that the events in Gaza constitute genocide as defined in Article II of the Convention on Genocide, falling well within the Court's jurisdiction as prescribed in Article IX.
South Africa must thus prove not only the occurrence of actions attributed to the Israeli entity but also show a "systematic pattern" of acts "intended to destroy, in whole or in part, a national, ethnical, racial, or religious group." The legal effort of the plaintiff here relates to establishing the occurrence of facts on one hand and applying the legal definition of "genocide" to these facts on the other.
South Africa's representative focused on both these objectives: initially affirming actions committed by Israeli forces in Gaza as "genocide behavior" using mostly UN-based reliable sources as factual matters and presenting statistics from UN bodies to substantiate these claims. Next, the effort was to legally define these actions as violations of Article II of the Genocide Convention, especially clauses "a, b, c, d," through evidence of "massive killing" reaching 23,000 Palestinians, at least seventy percent of whom are women and children, causing serious physical and psychological damage, deploying forced displacement methods, blocking food and medical aid, targeting hospitals and medical facilities.
Thus, South Africa's request is based on establishing strong legal grounds through substantiated facts and appropriately legally defining them as acts of genocide, grounded on the provisions of the UN treaties that define the jurisdiction of the ICJ over this crime.
Conversely, Israeli representatives presented more of a political defense than a legal one, repeating claims of "legitimate self-defense" against "Hamas's attempts at the genocide of the Israeli people."
They failed to justify the high number of casualties, which stands as a strong indication of an intent for the mass extermination of Palestinians in Gaza. Their arguments substantially relied on Israeli military's images, supposedly depicting Hamas's use of civilian facilities for military purposes, and claimed this as the reason for the high civilian casualty count.
Legally, the Israeli legal team did not effectively counter the primary accusation of deliberate and systematic genocide, which the volume of bombing and casualty count appear to confirm. They did not address the legal foundations relied upon by the plaintiff in substantiating its claim.
As such, while the plaintiff based its case on proven facts and valid legal Grounds, the Israeli representatives attempted to twist these facts by attributing them to another party, "Hamas," without providing any substantial evidence for these assertions, bypassing the legal qualification of the act as genocide.
The Battle over Provisional Measures
Indeed, the urgency of South Africa's case is evident. Legally, an urgent case is a request for immediate and temporary measures to prevent ongoing actions that exacerbate a situation's severity, causing irreparable harm and not waiting for the Court's final decision to maintain the primacy of the parties' rights.
South Africa's request in this respect is based on Article 41 of the Statute of the ICJ, which grants the Court the authority to indicate any provisional measures necessary to preserve the rights of either party pending a final decision. Such proposed measures are immediately communicated to the parties and the Security Council.
The provisional measures sought by South Africa include an order to cease all military actions by the Israeli forces since these actions continue to increase civilian casualties over time. Thus, urgent action is warranted to preserve Palestinians' right to life and cannot be delayed until the Court's final decision, considering these rights as highly prioritized. South Africa also demanded that the entity be compelled to ensure the preservation and non-destruction of evidence.
In a judicial precedent at the ICJ, Gambia brought a case against Myanmar over the genocide of the Rohingya people. In January 2020, the ICJ unanimously adopted provisional measures that obliged Myanmar to halt all acts of genocide against the Rohingya, ensure its security forces do not commit genocide, and take steps to preserve evidence regarding the case.
Furthermore, Myanmar was ordered to report back on compliance with these provisional measures every six months. This case was a significant point of legal contention in the current suit, focusing on the efficacy of imposing provisional measures to prevent the continuation of genocide against the targeted Palestinians and the existence of prioritized rights necessitating such measures.
Prospects of the Dispute and its Repercussions
Symbolically, the first legal victory for South Africa would be convincing the Court of its jurisdiction in the case. Given that the Israeli entity has committed some of the most recent genocides, and has largely avoided international tribunals, utilizing the Court's platform to expose the occupier's crimes with its presence as a defendant is a political victory worth noting.
Nevertheless, the success of the lawsuit is not solely contingent on South Africa's ability to prove deliberate genocides but hinges on the judges' willingness to be unbiased and free from personal views concerning the dispute and its parties. Since this is a trial of state policies rather than individual actions, there is a possibility that political considerations may outweigh pure legal reflections.
It is crucial to remember that the ICJ is a venue for state accountability, not individuals, and contributes to global security and peace as a judicial body of the UN. Therefore, if the Court were to charge the Israeli entity with genocide, it might first order provisional measures to cease the continuing crime. Eventually, it could hold the entity responsible for genocide, implying obligations to pay damages and potentially imposing economic or diplomatic sanctions.
Legally, ICJ judgments are binding on the parties, but the Court itself lacks the enforcement authority to execute them forcefully. As a result, the interested party will need to approach the UN Security Council to issue a decree to fulfill the ICJ's decision, subject to the voting system of the Security Council, including the potential veto.
In any case, the international community will face a challenge proving its commitment to halting the genocide against Palestinians in Gaza, should a conviction arise from the world's leading judicial authority. Meanwhile, such a ruling would revitalize hope in the efficacy of international legal and judicial systems in achieving their ultimate purpose – offering effective protection of human rights globally without discrimination.
