ICJ Ruling on the Israeli Gaza Genocide: A Plea for Global Justice

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The International Court of Justice (ICJ) released an emergency verdict in the genocide lawsuit that South Africa brought against Israel in late December 2023. In a significant development regarding the ongoing Palestine-Israel crisis, South Africa has filed a lawsuit against Israel at the ICJ, invoking the Convention on the Prevention and Punishment of the Crime of Genocide. The accusations against Israel pertain to the purported genocide against the Palestinian people following the attacks of the 7th of October 2023, carried out by Hamas. These attacks resulted in the tragic loss of nearly 1,200 lives, predominantly civilians, in Israel, with an additional 240 individuals being taken hostage.

On the other hand, according to Euro-Med Monitor, since the Hamas attack, the number of Palestinians killed as of 26 December stood at 29,124 that number might be more following the stats of January and February 2024 resulting from the retaliatory attacks and invasion by Israel. Israeli air and ground assaults on the Gaza Strip caused the deaths of thousands of people, including 11,422 children, 5,822 women, 481 medical workers, and 101 reporters.  Moreover, according to the human rights organization, a significant number of Palestinians, more than 66,000 have been wounded, with a considerable portion of them facing critical wounds.  Also, numerous victims are still trapped beneath the debris of buildings, with many more whose whereabouts are still unfound.

However, the hearings regarding South Africa’s demand for interim measures to keep Israel under pressure and scrutiny were held in The Hague on the 11th and 12th of January 2024. In a comprehensive 84-page case, South Africa has made notable allegations against Israel, claiming that their actions and inactions after the 7th October incident can be marked as genocidal. According to South Africa, ‘these actions are carried out with an explicit goal to wipe out Palestinians in Gaza, as part of the larger Palestinian national, racial, and ethnic group.’

Using Israel’s Actions and Rhetoric as Proof of Genocidal Aims

According to South Africa’s allegation, Israel’s “acts and omissions” are genocidal in nature since they are meant to bring about the elimination of a considerable portion of the Palestinian national and ethnic population. What Israel is doing, like launching airstrikes, and what it is supposedly not doing, like preventing civilian injury, as South Africa claims, are both described in the alleged document.

As further proof of “genocidal intent”, the complaint brings attention to Israeli public language, including remarks made by Prime Minister Benjamin Netanyahu. For example, Yoav Gallant, Israel’s defense minister, described the Israeli military’s reaction to the Hamas attack, saying, “We are battling human animals, and we are behaving appropriately”. Gallant said, “They will regret it when we eliminate everything”.

Meanwhile, Israeli Prime Minister Benjamin Netanyahu used a biblical comparison to describe the adversary of the Israelites, which was widely seen as a genocidal incitement to destroy Gaza. He made the statement in an official video. “You must remember what Amalek has done to you, says our Holy Bible – we do remember,” he added.

However, the case of South Africa against Israel also exhibits that a crime committed with the purpose of wiping out an entire national, ethnic, racial, or religious group is regarded as genocide under international law. In this respect, the case includes murdering or inflicting severe physical or mental harm on group members intentionally destroying the group in whole or in part carrying out measures to stop births in the group by forcefully transferring group children to a different group.

Why Did South Africa Bring the Case to ICJ?

According to ICJ regulations, any individual or country, regardless of their role in the conflict, can use the ICJ to bring charges against another country for genocide under the Genocide Convention. In 2019, the Gambia brought forth a lawsuit against Myanmar for its atrocities against the Rohingya people.  However, since the recent Palestine-Israel conflict emerged in October, South Africa has spoken out against Israel’s conduct against Palestinians on several occasions, and the ICJ referral is only the latest in a series of measures meant to hold Israel accountable for its airstrikes on Gaza. In November, the foreign ministry referred alleged crimes, including genocide, in the Palestinian regions to the ICC for investigation. The parliament also decided to withdraw its diplomatic personnel from Israel and close the embassy.

Although South Africa’s charge may not have much of an impact on the war’s result, it does link the liberation struggles of Black South Africans and Palestinians, which runs deep. In doing so, it uses a highly regarded international organization to send a message that it wants to keep pressure on the US-dominated international order, which it views as unjust to African and non-Western concerns. It is even more significant that the accusations are being brought by South Africa, a country with a relatively recent record of racial colonial brutality and apartheid, instead of another country. It also claims it must take action since it is a party to the United Nations Genocide Convention of 1948.

The fact that the ICC is now looking into allegations of war crimes perpetrated by Israel and Hamas regarding the assaults on October 7 makes South Africa’s decision to seek accusations before the ICJ all the more noteworthy. In contrast to the ICC, which is charged with investigating and prosecuting high-ranking persons for war crimes, the ICJ is responsible for mediating amicable resolutions to international conflicts. The ICJ proceedings provide South Africa with an official platform to express its position on Israel’s conduct in Gaza. It can be said that the international community stands in solidarity with the Palestinian people and views the three months of continuous bombardment and refusal of basic necessities as a pressing issue of global concern that led South Africa to file the case.

However, the Palestinian Liberation Organisation (PLO) and Nelson Mandela, the first president of South Africa after apartheid, are long-time associates of the African National Congress (ANC), the country’s governing party. During Mandela’s time in prison, the African National Congress (ANC) joined forces with the PLO and other revolutionary groups. Following his release, Mandela openly backed Yasser Arafat and the PLO, stating in 1990, “We recognize the PLO because, just like ourselves, they have been struggling for the right of self-determination.”

In a similar vein, President Cyril Ramaphosa of South Africa said, “We as a nation have been prompted to approach the ICJ by our objection to the continued massacre of the people of Gaza.” “As a people who have experienced the terrible realities of genocide, racial discrimination, and state-sanctioned brutality, we are determined to be the ones who history remembers.”

Six Provisional Measures of ICJ

In its ruling, however, the ICJ has issued six interim measures, which include instructing Israel to abstain from actions that violate the Genocide Convention, to avert and punish any instances of overt and public incitement to genocide, and to promptly and effectively provide humanitarian aid to civilians in Gaza. Importantly, the Court has also directed Israel to safeguard proof of genocide and provide an official report to the Court within a month, detailing the actions taken to comply with the ruling.

The Court delivered its ‘order’ in The Hague after hearing oral submissions from South Africa and Israel on 11 and 12 January 2024. In its findings, the Court determined that it has prima facie jurisdiction over the case and provided six provisional measures. In this regard, the Court has issued a series of orders to Israel.

  • Israel is required to take every necessary step to avert the genocidal acts that fall within the purview of the Convention.
  • Israel must guarantee that its military immediately ceases any acts that are outlined in the initial ruling.
  • Israel is commanded to hold on to evidence of alleged violations of the Genocide Convention’s articles 2-3 and to take effective steps to prevent the destruction of proof and safeguard the preservation of evidence regarding the genocide case.
  • Israel is directed to fulfill the critical need for humanitarian aid and essential services by taking swift and decisive action.
  • The alleged country is also ordered to prohibit and reprimand calls to genocide and to take all necessary actions to prevent and penalize any explicit and public encouragement of genocide against individuals in Gaza.
  • Finally, Israel must provide a report to the Court within one month, detailing all the measures adopted to comply with the Order.

Furthermore, the Court emphasized the importance of upholding international humanitarian law and urged the immediate release of hostages from both sides—Israel and Hamas.

Legal Hurdles in the ICJ Case

The ICJ’s decision on the case may take months—if not years—to reach. In reality, due to regulatory shortcomings, the court will be unable to enforce its rulings even if it finds South Africa’s favor. However, genocide, war crimes, crimes against humanity, and aggression are all under the jurisdiction of the ICC. Not only that, it may detain individuals at the Hague until a country that has consented to execute their sentence can be found. On the other hand, no such thing can be done by the ICJ. Although it has previously heard accusations of genocide, its primary function is to mediate disputes between governments over territorial claims and natural resources.

However, in its December filing, South Africa argued for widespread and immediate actions to be directed by the Court, encompassing a cessation of hostilities and all acts that are encompassed in the Genocide Convention, together with the prevention of additional forcible displacement, shortage of food, water, and healthcare, and inaccessibility to humanitarian assistance. This indicates that the ICJ does not have to explicitly demand a ceasefire; rather, it could direct the parties to negotiate one, or it could approve South Africa’s remaining provisional demands, such as a halt to the demolition of evidence, an end to genocide, and the delivery of sufficient humanitarian aid to Gazan civilians.

Despite all the developments, genocide claims are hard to establish since they include both the deeds and the purpose of a state. The allegation of genocide has persisted throughout the conflict from politicians, academics, and pro-Palestinian activists, and it is especially problematic given that Israel was established in the aftermath of the Holocaust. However, UN-established international criminal courts were able to successfully prosecute genocide in Rwanda and Bosnia in the twentieth century, but only against particular individuals and not whole nations. Besides, proving genocidal intent will be a difficult task for South Africa. Determining the outcome of this lawsuit might take months or perhaps years. Yet, in the meantime, it has sparked discussions over the function of international law, the possibility of altered diplomatic ties, and the challenge to Israel’s past treatment of Palestinians.

Yet A Landmark Development

The ruling by the ICJ on South Africa’s genocide lawsuit against Israel represents a landmark development in the ongoing Palestine-Israel crisis. Although the case does give less hope to bringing the conflict in Gaza to a halt, this is a landmark case that poses diverse challenges to Israel and the Netanyahu government inside and outside the country. By compelling Israel to account for its actions, it pierced the country’s habitual impunity on the world stage.

Though establishing genocidal intent remains an onerous evidentiary burden, the ICJ’s prima facie affirmation of its jurisdiction presages prolonged multilateral scrutiny of Israel’s policies towards Palestinians. This scrutiny could constrain the Israeli government’s strategic maneuverability and induce greater caution in its military calculus. While a conclusive resolution appears distant, the ICJ’s intervention could yet catalyze incremental steps on the arduous path to peace. At the very least, it signals that Israeli exceptionalism shall meet its reprisals under international law.

– Kawsar Uddin Mahmud is a Research Intern at the KRF Center for Bangladesh and Global Affairs (CBGA).

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