WASHINGTON – Following the conclusion of the opening deliberations of the International Court of Justice on the lawsuit filed by South Africa against Israel, accused of committing genocide through its ongoing aggression on the Gaza Strip, Al Jazeera Net discussed the trial, its implications, and its potential outcomes with Richard Falk, a former United Nations expert and professor emeritus of international law at Princeton University.
Richard Falk is an American professor of international law, and he has been a guest lecturer in international studies at the University of California. In addition to chairing the board of the Nuclear Peace Foundation, Falk has served on the International Independent Commission for Kosovo, and in 2008, he was appointed as a UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 for a tenure of six years. He has published extensively on international law and the United Nations.
What do you think about the South African prosecution’s claim that Israel’s military operations in Gaza violate its obligations under the UN Genocide Convention and that its actions constitute genocide?
Israeli military operations in Gaza have persisted for over 100 days, but from the onset, objective observers have recognized a “model case” of genocide. The military assault systematically and blatantly targets making Gaza uninhabitable, inflicting severe suffering on innocent civilians.
The operation as a whole represents a flagrant violation of international law’s basic tenets and cannot be legitimated from a security or self-defense perspective by Israel. Instead, Israel’s military campaign was announced in the most extreme terms by its top political and military leaders, and became manifest in practice through the army’s sadistic tactics.
Ignoring official statements calling for transforming Gaza into “a parking lot” or “stripping Gaza of all Palestinians” or presenting the binary choice of “leave or die,” reveals a brazen challenge to the criminal prohibition of genocide.
Israel turns a blind eye to the fact that it was a signatory to the 1948 Genocide Convention, pledging to respect this unconditional constraint on state behavior. The reliance on legal justifications for self-defense and counter-terrorism can never provide a moral or legal basis for Israel’s conduct towards Gaza since October 7th.
Moreover, Israel distorts facts and evidence by claiming that Hamas’ attack constitutes genocide against the Jewish people, and that it is Israel defending itself against a genocidal adversary.
The International Court of Justice has the authority to impose provisional measures but Washington may exercise its veto right in the Security Council (Al Jazeera)
What happens if South Africa wins at the International Court of Justice?
We cannot know in advance what will happen, but we can offer an informed opinion based on Israeli allegations against South Africa, insisting that merely raising a dispute about the reality of genocide in Gaza amounts to blood libel against the Jewish people.
In more cautious secular terms, the U.S. State Department has said that the South African initiative lacks “merit” because it is not based on a legally acceptable foundation in reality. Consequently, it seems likely that, if necessary, the United States will wield its veto power in the Security Council and oppose any General Assembly resolution calling for compliance with the provisional measures determined by the International Court of Justice against Israel, as authorized under Article 41 (1) of the Statute governing its operations.
The court also apparently has the power to impose provisional measures against Hamas, which it is anticipated to invoke to exhibit its balanced approach.
If a sequence of evasive non-compliance occurs, it is likely to lead to significant and sustained protests worldwide, including in the United States and European nations with varying degrees of support for Israel, which initially gave full consent to Israel’s disproportionate response to the Hamas attack on October 7th.
Success at the court means starting a widespread characterization of Israel as an “outlaw state,” which would push towards an escalation in the nature and intensity of solidarity initiatives for Palestinians worldwide, including resorting to sports and cultural boycotts.
And what if South Africa loses at the International Court of Justice?
Undoubtedly, Israel will gloat and celebrate a legal victory, disparaging its tactic critics during this time as hysterically anti-Semitic. It would also lead Israel and the United States to justify their refusal to follow the global majority of governments at the United Nations demanding an immediate cease-fire in Gaza.
Those supporting the South African initiative will likely react with a bewildering mix of confusion and outright anger at what can surely be considered a disappointing outcome for the International Court of Justice. How could the world’s highest court face such compelling evidence presented by South Africa’s legal team and yet rule, in a distorted, harsh, and unprofessional manner, against the request for provisional measures?
Assuming a majority of the judges in The Hague arrive at an ambiguous conclusion in the anticipated judgment in the coming weeks, it would likely result in backlash against the decision by the global West, lined up behind Israel’s interpretation, and those embracing the global South’s perspectives, considering the outcomes as politically motivated, diminishing the court’s stature as a legal authority worthy of the highest state respect in the future.
And the result of this dilemma?
A substantive compromise is based on a technical judicial argument provided by Israel at the International Court of Justice hearings on January 12th, suggesting any action by the court this time would be “disruptive” as there was a failure to prove a “legal dispute” between the parties (Israel and South Africa) when the request was presented to the court.
Although the South African team refuted this argument at the International Court of Justice, it could offer the court, or some of its judges, an escape from a thorny dilemma pitting moral legal considerations against real-world politics.
In some ways, the most significant response, regardless of the court’s position, is the reaction in the global public opinion. Whether the South African request for the court to issue provisional measures to stop genocide succeeds or fails may not make a significant immediate difference concerning the political impact of its decision.
If the court agrees to South Africa’s request, Israel is likely to reject compliance, leading to an outraged response from the international civil society towards Israel’s non-compliance.
Prime Minister Benjamin Netanyahu claimed that the Israeli military is “the most moral army in the world.” Do you agree with him, and why?
This claim is unique in its nature, in line with Israel’s repeated propaganda, and goes unscrutinized throughout Western nations. We must recall that years before the current aggression, even amongst conservative international visitors, for instance, the British political leader David Cameron, referred to the Israeli occupation of the Gaza Strip as “the world’s largest open prison.”
It is unsurprising that individuals who were exiled from their homeland for decades and then “imprisoned” indefinitely without committing any crimes would at some point risk everything for a prison-break, an event called by Norman Finkelstein a “slave revolt,” referring to the Hamas attack.
Viewing less legally and more strategically, Israel has considered Gaza a testing ground for its counter-terrorism capabilities, which it can demonstrate to its enemies and other governments facing similar challenges, turning them into clients for Israel’s robust arms industry, including innovations in tactics, weaponry, and training.
It also wanted to show hostile countries in the region that it would respond to provocations with a disproportionate force. Such an approach was articulated in the Dahiya Doctrine in the early 1980s, a mindset justifying the destruction of a poor neighborhood in southern Beirut presumed to be a Hezbollah stronghold among civilian Lebanese sympathizers.
The Dahiya Doctrine, in a geometrically magnified form, lies behind the security justification for Israel’s horrifically disproportionate response to the October 7 attack. As more informed observers increasingly consider Israel’s response a clear case of genocide, it renders the claim of its armed forces being “the most moral in the world” to be somewhat of a sick joke.
Falk: Israel has flagrantly violated international humanitarian law for a long time (Al Jazeera)
How does the aggression on Gaza affect the respect and prestige of international law?
The answer in the short term will be heavily influenced by how the International Court of Justice handles South Africa’s request for provisional measures, and whether the world’s nations, especially Israel and the United States, show defiance or respect for the outcome. Relevant as well is how positively civil society is impressed by the International Court of Justice’s response to South Africa’s request, influencing perceptions of international law at street level worldwide.
Expanding the vision beyond assessing the impact of the violence of the Israeli campaign in Gaza, it becomes clear that Israel has long and blatantly violated the international humanitarian law during its protracted occupation that started with its 1967 war victory.
Broadly speaking, Israel has defied international law whenever compliance has seriously conflicted with its national policies and strategic priorities. It cites international law when it can be used to justify its actions or complain about Palestinian resistance—as seen in its pitiable arguments at the International Court of Justice hearings on January 11th, flipping facts and law to undermine ongoing genocide claims.
Although Israel is not a member state of the International Criminal Court, could its leaders be held accountable under the jurisdiction of this court?
Theoretically, the International Criminal Court has jurisdiction to try leaders of a sovereign state if the alleged international crime was committed within the territory of another party in the judicial framework provided by the Rome Statute.
Practically, this requires the International Criminal Court to have actual control over these individuals, which normally depends on voluntary cooperation from a state to extradite the accused belonging to a state that is not a member of the court’s system. States that are party to the Rome Statute governing the International Criminal Court are obliged to cooperate with the court, including during investigations and any resulting arrest process.
In addition, a trial cannot proceed unless the accused individual or individuals are present in the courtroom throughout the prosecution. For these reasons, the trial of Israeli leaders in the future is highly improbable.
Israel need not be a party to the Rome Statute governing the International Criminal Court’s authority if the court finds it possesses valid legal authority to proceed with the investigation and possible indictment of Israeli political and military leaders accused of responsibility for crimes committed in the occupied Palestinian territories, including Gaza.
The International Criminal Court formally decided in 2021, in a session of a three-judge panel, that it could proceed with considering Palestinian allegations of Israeli crimes on occupied Palestinian land post-2014. Palestine became a non-voting member of the United Nations in 2012 and later a party to the International Criminal Court treaty framework under the Rome Statute.
The current International Criminal Court Prosecutor, Karim Khan, has shown little interest in proceeding as allowed, in stark contrast to the eagerness displayed with lesser claims against Putin for alleged crimes in Ukraine related to the supposed 2022 aggression.
What is South Africa aiming to achieve by suing Israel in this case?
It is always difficult to portray the goals of a controversial legal initiative of this kind, and in this case, the goals might be less clear than the motivations. Post-apartheid South Africa ties the Palestinian struggle for fundamental human rights to its struggle against apartheid. Nelson Mandela famously said, “Our freedom is incomplete without the freedom of the Palestinians.”
In a sense, genocide is the consummation of apartheid, characteristic of the final stages of a settler-colonial project, perhaps the best way to understand what is happening in Gaza, invoking grim memories in South Africa.
South Africa might also be driven by memories of how the governments in the global West related to its past struggle. These countries were long insensitive to repressive apartheid governance as they were strategically linked to the South African apartheid regime during the Cold War era.
Palestine has fallen victim while Israel has been shielded by a United States-led commitment to its strategic interests in the Middle East, bolstered by pro-Israel domestic lobby groups and the influence of donors on government policy and media portrayals.
The Biden administration condemned referring Israel to the International Court of Justice and accusing it of committing genocide in its war on Gaza, describing the claim as “without merit.” What’s your take on this American stance?
As mentioned, U.S. foreign policy priorities lead to disregarding international law whenever it clashes with strategic interests. Describing the South African initiative as “without merit” in light of extensively documented practices of genocide and genocidal policies and language of Israel’s top leaders defies reality as embodied in the terms of the Genocide Convention, which calls upon parties to prevent and punish genocide by others, in addition to refraining from such conduct.
Two points warrant emphasis:
- The discrepancy between the U.S. response to allegations of violations by its adversaries, China and Russia, and its consistent support for internationally accused friends and allies.
- The moral hypocrisy associated with such brazen double standards undermines the rule of law by adopting policies where equals are treated unequally.
The United States pays a steep price in reputation domestically and abroad by standing with Israel in opposing South Africa’s legal plea to end genocide, globally supported, seeking to halt the ongoing and apparent genocide.
This initiative was only taken after several attempts in UN Security Council and General Assembly to end the genocide were thwarted or went unheeded.
