Tag: International Court of Justice

The Global South’s stand on Israel’s war in Gaza | Explained

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Palestinian Foreign Minister Riyad al-Maliki and Palestinian U.N. envoy Riyad Mansour attend a public hearing held by The International Court of Justice to allow parties to give their views on the legal consequences of Israel’s occupation of the Palestinian territories before eventually issuing a non-binding legal opinion in The Hague, Netherlands on February 19, 2024.
| Photo Credit: Reuters

The story so far: Israel’s war in Gaza in retaliation for the October 7 terror attacks by Hamas took centre-stage at the International Court of Justice (ICJ) this week again, as the UN General Assembly raised the question of illegal Israeli settlements in the court, with public hearings that will end on February 26. The hearings sparked a further divide between Western countries, many of whom sought to defend Israel’s bombardment of Gaza as the “right to self-defence”, and were ranged against Global South countries, most of whom had supported South Africa’s bid to have the ICJ try Israel for “war-crimes” for its actions. The latest hearings opened in the backdrop of a major rift between Brazil and Israel.

What are the ICJ hearings about?

The current hearings of the ICJ at the Peace Palace in The Hague (The Netherlands) are not a consequence of the Israel-Hamas conflict of the past few months, but pre-date them. In December 2022, the UN General Assembly had asked the court for an “advisory opinion” on two specific questions pertaining to Israeli actions in the past: first, what are the “legal consequences” for Israel over its policy of “occupations, settlement and annexation” of Palestinian territories since the 1967 war, and attempts to change the demographic status of Jerusalem, and second, what legal consequences arise for all other states and the United Nations over Israel’s “discriminatory” policies towards Palestinians. As many as 52 states and three international organisations gave written and oral comments during the hearings scheduled from February 19-26, led by Palestine, and followed by South Africa.

Editorial | Momentous ruling: On Israel and the International Court of Justice order

Who were the key speakers and what have they said so far?

While a majority of the speakers at the hearings are from the Global South led by Brazil and South Africa, all P-5 members of the UN Security council submitted comments, although Israel chose not to participate. India was not among the speakers, but its neighbours, Pakistan and Bangladesh were strongly critical of Israel’s actions. Palestinian Foreign Minister Riyad al-Maliki gave a three-hour high-powered submission in which he said Israeli governments had left only three choices for Palestinians: “displacement, subjugation or death”, calling their actions: “ethnic cleansing, apartheid or genocide.” The U.S., U.K. and allies began submissions with condemnations of the October 7 attack in which more than 1,100 were killed in Israel. Ireland, however, has diverged quite dramatically from the West and the European Union in its criticism of Israel’s actions, countering arguments on the “right to self-defence” by saying that international law “limits the use of force in self-defence to no more than what is necessary and proportionate”. More than 29,000 people have been killed in Gaza since Israel’s bombardment began. While the ICJ case pertains to events pre-2022, it was clear that the destruction of nearly half of all structures in Gaza in four months are precipitating concerns that Israel plans to occupy and resettle that territory as well. Brazil’s ambassador in particular called for the ICJ to pronounce Israel’s actions of confiscating land, demolishing Palestinian homes, establishing Israeli settlements, and constructing the West Bank barrier wall as illegal.

Why have Brazil and Israel drawn daggers?

While Brazil and Israel have had close relations in the past, Brazil’s President Lula da Silva has been openly critical of “Zionism” in the past. For instance, he refused to visit the grave of Theodor Herzl during a visit to Jerusalem in 2010. Last week, Israel declared Mr. Lula a “persona non grata” who won’t be allowed to enter the country after he compared Israel’s bombardment of Palestinians to the Holocaust in Nazi Germany in which six million Jewish people were killed. Brazil has since recalled its ambassador to Israel.

What is India’s stand?

Despite its abstention in one vote calling for a ceasefire in October 2023, India has consistently voted in favour of UN resolutions that are critical of Israel’s occupation and annexation of Palestinian territory. Unlike the rest of the Global South, however, the Modi government has chosen to keep public comments on the issue to a minimum, and the decision not to speak at the ICJ is in line with that. Several factors complicate clarity on the Indian position. On the one hand, there is an expectation from the Arab world, particularly from close partners such as the UAE and Saudi Arabia, for India to stand with Palestine. Qatar, for instance, may have expectations after the Prime Minister’s visit this month to thank the Emir for releasing eight Indian naval officers. This may explain why New Delhi has spoken strongly about zero tolerance for the October 7 terror attacks, but has not designated Hamas as a terror group so far.


Also read | South Africa tells top U.N. court that it’s accusing Israel of apartheid against Palestinians

On the other hand, there is India’s close defence and surveillance equipment cooperation with Israel. While India has been buying defence equipment from Israel, recently, it shipped drones made by Adani-Elbit Advanced Systems in Hyderabad to help Israeli operations. In addition, the government has green-lighted the recruitment of tens of thousands of Indian workers by Israeli companies dealing with labour shortages due to the expulsion of Palestinians from jobs post October 7 attacks. However, the area of greatest concern for Indian diplomacy will come if it is seen as an outlier to the Global South that India seeks leadership of, which has been clearly critical of Israel’s actions, and is increasingly speaking in one voice for international judicial accountability for them.

  • The current hearings of the ICJ at the Peace Palace in The Hague (The Netherlands) are not a consequence of the Israel-Hamas conflict of the past few months, but pre-date them.
  • While a majority of the speakers at the hearings are from the Global South led by Brazil and South Africa, all P-5 members of the UN Security council submitted comments, although Israel chose not to participate.
  • While Brazil and Israel have had close relations in the past, Brazil’s President Lula da Silva has been openly critical of “Zionism” in the past.

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The ICJ ruling in South Africa’s genocide case against Israel | Explained

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In a historic ruling, the International Court of Justice (ICJ) on Friday ordered Israel to take measures to prevent acts of genocide in Gaza, but stopped short of calling for an immediate ceasefire as requested by South Africa.

Judge Joan Donoghue, the President of the Court, said that Israel must “take all measures within its power” to prevent acts that fall within the scope of the Genocide Convention and must ensure “with immediate effect” that its forces do not commit any such acts either.

The Court did not deliver a final ruling on the core aspect of South Africa’s case — whether genocide has occurred in Gaza— but an overwhelming majority of its judges ruled in favour of emergency measures, including the entry of basic services and humanitarian assistance into the Palestinian enclave.

A final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the claim are concluded, which will likely take several years. However, Friday’s ruling strongly indicates that the judges believe that there is a “plausible” genocidal risk to Palestinians, thereby clinching an undeniable victory for South Africa.

It also puts other states showing solidarity with Israel on notice. Speaking to the media following the verdict, South African Minister of International Relations and Cooperation Naledi Pandor said that should the Court find that there has been a commission of genocide, the states that have aided and abetted it would be impleaded in the proceedings.

As established in the Court’s LaGrand judgment in 2001, such provisional rulings are binding, and non-compliance certainly entails the breach of an international legal obligation. However, whether Israel will choose to abide by the ruling is debatable since the ICJ does not have an enforcement mechanism of its own. Although the UN Charter authorises the UN Security Council (UNSC) to enforce the Court’s decisions, their compliance is often at the mercy of the power politics of its permanent members.

For instance, in March 2022, the ICJ ordered Russia to halt its offensive in Ukraine. Although the order was legally binding, Moscow decided to ignore it, resulting in the continuation of hostilities. Similarly, Friday’s ruling is likely to be vetoed by Israel’s strongest ally, the U.S.

Israeli Prime Minister Benjamin Netanyahu slammed the ICJ ruling as “outrageous” while underscoring that Israel is fighting a “just war like no other.” He reiterated the claim that Israel is defending itself and its citizens against Hamas and that it would continue to do so while adhering to international law.

But as experts have told The Hindu previously, this interim ruling as well as future proceedings in the case could significantly sway international public opinion and mount pressure upon Israel to ensure compliance. This is all the more likely since Israel has been ordered to report to the Court within a month on steps taken to give effect to the verdict.

Read the full order here.

Prima facie jurisidiction

At the very outset, the Court acknowledged that it is acutely aware of the extent of human tragedy unfolding in the Gaza Strip and is “deeply concerned about the continuing loss of life and human suffering.” It noted that following Hamas’ attack on October 7, 2023, Israel launched a large-scale military operation causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of an overwhelming majority of Gaza’s population.

The Court’s jurisdiction was opposed by Israel on the ground that there exists “no dispute” between the parties since South Africa failed to provide “a reasonable opportunity to respond” before instituting the claim, as is required by the Court’s own rules. It also said that in the absence of any specific genocidal intent (dolus specialis), Israel’s military operations constitute an “act of self-defence” against Hamas.

Also Read: The issue of genocide and the world court

However, after perusing various statements issued by the two nations in several multilateral and bilateral forums, the Court concluded that “clearly opposite views” existed regarding Israel’s alleged violation of the Convention, which merits the prima facie existence of a “dispute.” It also pointed out that South Africa had made a complaint to the Israeli embassy in Pretoria, to which Israel had clearly responded.

Considering the low evidentiary threshold at this stage of the proceedings, it ruled that “at least some of the acts and omissions” alleged by South Africa against Israel are capable of falling within the provisions of the Convention thereby fortifying its jurisdiction to entertain the claim. This is entirely consistent with prior precedents, and in particular with the Ukraine v. Russia provisional measures order.

South Africa’s locus standi

The Genocide Convention has been ratified by an overwhelming number of states, including South Africa (1998) and Israel (1950). Article IX allows any state party to institute a case against another in the ICJ, even if it is not directly involved in the conflict. This is because the prohibition of genocide is considered a peremptory norm of international law (jus cogens) from which no derogation is permissible. This is the basis on which South Africa, a party that is technically unrelated to the conflict, instituted the ongoing proceedings. There exists a precedent for this — in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar for its treatment of the ethnic Rohingya population.

Upholding South Africa’s standing to sue, the Court noted that “all States parties to the Convention have a common interest to ensure the prevention, suppression, and punishment of genocide” and thus any of them can seek compliance of such erga omnes obligations (obligations towards the international community as a whole) in any given case.

Threshold for an interim ruling

The Court ascertained that the standard to order provisional measures had been met, that there is a “plausible” link between the rights sought to be protected by South Africa (the rights of Palestinians to be free from genocidal attacks) and the measures it requests as well as a risk of irreparable harm and genuine urgency. This was an unsurprising declaration given the relatively low threshold — the Court did not have to determine that genocidal acts in Gaza had in fact occurred.

Relying on various statements from UN officials, special rapporteurs, and other international bodies regarding the catastrophic situation in Gaza, it observed that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

“The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities, and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”ICJ’s order in South Africa v. Israel

Notably, the Court took note of genocidal rhetoric from several senior Israeli officials to arrive at its conclusion. In particular, it referred to a statement by Defence Minister of Israel Yoav Gallant calling for a “complete siege” of Gaza and indicating to the troops that they were “fighting against human animals.” Reference was also made to President of Israel Isaac Herzog’s remark that there were no innocent civilians in Gaza since “the entire nation” was responsible.

The cognisance of such statements is significant as they could establish the “genocidal intent” required to arrive at a definite finding on the commission of the crime.

Highlighting the need for emergency measures, the Court observed that “the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further” before it can render a final judgment.

Provisional measures

No immediate ceasefire

Declining South Africa’s request, the Court refused to issue an immediate ceasefire order as it had done previously in the Ukraine v. Russia case. Notably, Ukraine’s situation is factually and legally distinguishable from Gaza. In the case instituted by Ukraine against Russia, both parties were also the two involved in the conflict, while Hamas, as a non-state actor, is not a party to the ongoing proceedings.

Even though it is debatable whether Israel has the right to self-defence under international law in the context of Gaza, a ceasefire order would arguably have prevented it from participating in defensive military operations. As experts have pointed out, such a unilateral injunction was unlikely in this case.

Prevent all genocidal acts

The Court ruled that Israel must, in accordance with its obligation under the Convention, take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza,such as causing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Julia Sebutinde of Uganda and the Israeli representative, Judge Aharon Barak.]

Israel – Gaza1 – Gautam by Net Desk

Immediately restrain the military from performing genocidal acts

During the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. It pointed out that high-level Israeli politicians made genocidal statements, which were then echoed by soldiers on the ground in Gaza while making TikTok reels.

Addressing such concerns, the Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Prevent incitement to commit genocide

Israel was ordered to take all measures within its power to prevent and punish “the direct and public incitement to commit genocide” against Palestinians in Gaza. This could have a direct bearing on the alleged incendiary rhetoric of high ranking Israeli officials.

[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]

Entry of humanitarian assistance

The Court ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”

[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]

Preservation of evidence

Israel was ordered to preserve evidence relating to the claim. This will ensure that vital evidence is not lost or destroyed before the merits phase of the case, when the Court has to conclusively determine if Israel has committed genocide or not. Such evidence will also be relevant for proceedings before the International Criminal Court (ICC), which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel.

However, South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Compliance

Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. South Africa will have a chance to respond to this report. This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Release of hostages held by Hamas

Although no interim order was issued, the Court said that it was gravely concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and accordingly called for their immediate and unconditional release.

What happens next?

The UN Security Council is set to meet next week to deliberate upon the decision. The meeting, scheduled for Wednesday, has been called by Algeria, whose Ministry of Foreign Affairs said it would give a “binding effect to the pronouncement of the International Court of Justice on the provisional measures imposed on the Israeli occupation.”

The UNSC has long been divided on the conflict, with the U.S. having used its veto power multiple times to shield Israel from demands for a ceasefire. However, experts say that Washington’s veto of an ICJ-approved decision could undermine US President Joe Biden’s calls for others — especially its adversaries Russia and Myanmar — to uphold the Court’s rulings.

Following the verdict, nearly a dozen Western countries including the U.S. have suspended funding for the United Nations’ refugee agency for Palestinians (UNRWA) owing to allegations that its staff were involved in the October 7 Hamas attacks on Israel. Established in 1948, UNRWA provides education, health, and emergency aid services to about two-thirds of Gaza’s 2.3 million population and has played a pivotal role during the war.

Although many have been left disappointed by the Court’s refusal to order a ceasefire, experts say that this was an expected outcome. Thomas Macmanus, a law professor at Queen Mary University in London, told Al Jazeera that he was not surprised that the Court did not ask for a ceasefire because, in a way, it would “render Israel defenceless against an attack, and that’s not really within the purview of the Court in this case.”

According to Tuqa Nusairat, the Director for Strategy, Operations, and Finance at the Atlantic Council’s Middle East Programs in Washington, the ruling should make U.S. rethink any further diplomatic, economic, and military support to Israel.

“The Court’s initial decision puts to rest the Biden administration’s claim that the case is “meritless,” and should force the United States to come to terms with the fact that its support for Israel is not only rejected by much of the international community, but it is now subject to possibly defending itself against accusations of supporting a possible genocide in Gaza. The fifteen-to-two vote by the Court on almost all the provisions speaks to how united much of the world is in its view of how Israel has conducted its military operations in Gaza,” she asserted.



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Where does the rest of the world stand on Israel genocide allegations?

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The accusations levelled against Israel by South Africa are certainly momentous – but what support do they really have globally?

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South Africa says more than 50 countries have expressed support for its case at the United Nations’ top court accusing Israel of genocide against Palestinians in the war in Gaza.

Others, including the United States, have strongly rejected South Africa’s allegation that Israel is violating the UN Convention on the Prevention and Punishment of the Crime of Genocide. Many more have remained silent.

The world’s reaction to the landmark case that was heard on Thursday and Friday at the International Court of Justice in The Hague shows a predictable global split when it comes to the inextricable, 75-year-old problem of Israel and the Palestinians.

Sunday marks 100 days of their bloodiest ever conflict.

The majority of countries backing South Africa’s case are from the Arab world and Africa.

In Europe, only the Muslim nation of Turkey has publicly stated its support.

No Western country has declared support for South Africa’s allegations against Israel. The US, a close Israel ally, has rejected them as unfounded, the UK has called them unjustified, and Germany said it “explicitly rejects” them.

China and Russia have said little about one of the most significant cases to come before an international court in recent history – and the European Union also hasn’t commented.

EU, US and UK reaction: ‘Meritless’ allegations

US Secretary of State Antony Blinken said on a visit to Israel a day before the court proceedings began that South Africa’s allegations are “meritless” and that the case “distracts the world” from efforts to find a lasting solution to the conflict.

National Security Council spokesman John Kirby said genocide is “not a word that ought to be thrown around lightly, and we certainly don’t believe that it applies here.”

“We don’t agree with what the South Africans are doing,” UK Foreign Minister David Cameron said of the case.

Israel fiercely rejects the allegations of genocide and says it is defending its people. It says the offensive is aimed at eradicating the leaders of Hamas, the militant group that runs the territory and provoked the conflict by launching surprise attacks on southern Israel on 7 October.

Blinken said a genocide case against Israel was “particularly galling” given that Hamas and other groups “continue to openly call for the annihilation of Israel and the mass murder of Jews.”

The US, the UK, the EU and others classify Hamas as a terrorist organisation.

Israel’s military response in Gaza has killed more than 23,000 Palestinians, according to Gaza’s Health Ministry. The count doesn’t distinguish between combatants and civilians. It says more than two-thirds of the dead are women and children.

Much of northern Gaza has become an uninhabitable moonscape with entire neighbourhoods erased by Israeli air strikes and tank fire.

South Africa has also condemned Hamas’ 7 October attack but argues that it did not justify Israel’s response.

German support for Israel – and Turkish doubt

Germany’s announcement of support for Israel on Friday, the day the hearings closed, has symbolic significance given its history of the Holocaust, when the Nazis killed 6 million Jews in Europe. Israel was created after World War II as a haven for Jews in the shadow of those atrocities.

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“Israel has been defending itself,” German government spokesperson Steffen Hebestreit said. His statement also invoked the Holocaust, which in large part spurred the creation of the UN Genocide Convention in 1948.

“In view of Germany’s history… the Federal Government sees itself as particularly committed to the Convention against Genocide,” he said. He called the allegations against Israel “completely unfounded.”

Germany said it intends to intervene in the case on Israel’s behalf.

The EU has only said that countries have a right to bring cases to the UN court. Most of its member states have refrained from taking a position.

Turkey, which is in the process of joining the EU, was a lone voice in the region. Turkish President Recep Tayyip Erdogan said his country provided documents that were being used against Israel in the case.

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“With these documents, Israel will be condemned,” he said.

Arab condemnation of Israel

The Organisation of Islamic Cooperation (OIC) was one of the first blocs to publicly back the case when South Africa filed it late last month. It said there was “mass genocide being perpetrated by the Israeli defense forces” and accused Israel of “indiscriminate targeting” of Gaza’s civilian population.

The OIC is a bloc of 57 countries which includes Iran, Iraq, Saudi Arabia, Qatar and Egypt. Its headquarters are in Saudi Arabia. The Cairo-based Arab League, whose 22 member countries are almost all part of the OIC, also backed South Africa’s case.

South Africa drew some support from outside the Arab world. Namibia and Pakistan agreed with the case at a UN General Assembly session this week. Malaysia also expressed support.

“No peace-loving human being can ignore the carnage waged against Palestinians in Gaza,” Namibian President Hage Geingob was quoted as saying in the southern African nation’s The Namibian newspaper.

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Malaysia’s Foreign Ministry demanded “legal accountability for Israel’s atrocities in Gaza.”

Silence from China and Russia

China, Russia – which is also facing allegations of genocide in the world court – and the emerging power of India have largely remained silent, seemingly aware that taking a stand in such an inflammatory case has little upside and could irreversibly upset their relationships in the region.

India’s foreign policy has historically supported the Palestinian cause, but Prime Minister Narendra Modi was one of the first global leaders to express solidarity with Israel and call the Hamas attack terrorism.

Sitting on the fence?

A handful of South American countries have spoken up, including the continent’s biggest economy, Brazil, whose Foreign Ministry said President Luiz Inácio Lula da Silva backed South Africa’s case.

However, the ministry’s comments did not directly accuse Israel of genocide but focused on the need for a cease-fire in Gaza.

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South Africa’s case against Israel is two-fold: It wants the court to say Israel is committing genocide and to issue an interim ruling ordering an end to its military campaign in Gaza. The court said it would decide on an interim ruling soon but, reflecting the gravity of the case, it could take years for a final verdict on the genocide charge.

Brazil said it hoped the case would get Israel to “immediately cease all acts and measures that could constitute genocide.”

Other countries have stopped short of agreeing with South Africa. Ireland premier Leo Varadkar said the genocide case was “far from clear cut” but that he hoped the court would order a cease-fire in Gaza.

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South Africa’s case against Israel at the ICJ: What are the allegations and what can be expected?| Explained

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The story so far: South Africa has launched a case against Israel at the International Court of Justice (ICJ), the principal judicial body of the United Nations (UN), accusing the state of committing genocide in its military campaign in Gaza. Israel has rejected the charge, calling the case “baseless” and a “blood libel,” a reference to false accusations of murder and ritual sacrifice by Jews.

South Africa has urged the Court to issue interim orders in the form of “provisional measures,” which include calling for an immediate ceasefire to end the war and Israel’s indiscriminate killing of Palestinians. Public hearings in this regard are set to take place at The Hague from January 11-12. Although the Court may issue a provisional ruling within weeks, a final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the application are concluded, which will likely take several years.

Similar to interim injunctions issued by national courts, provisional measures issued by the ICJ seek to freeze combat operations to preserve the integrity of a future final judgment. In its LaGrand judgment in 2001, the Court clarified that such provisional rulings are binding on the parties given its “basic function of judicial settlement of international disputes.”

However, whether Israel will choose to abide by an adverse provisional ruling is debatable. For instance, in March 2022, the ICJ ordered Russia to halt its offensive in Ukraine. Although the order was legally binding, Moscow decided to ignore it, resulting in the continuation of hostilities. But such a ruling could significantly sway international public opinion.

The International Criminal Court (ICC) is already investigating possible war crimes and crimes against humanity committed by both Hamas and Israel. While the ICC is mandated to prosecute only individuals, the ICJ adjudicates conflicts between states and determines “state responsibility” for crimes.

To get interim relief at this stage, South Africa does not have to definitively prove that genocide has taken place. It just has to “prima facie” show that “at least some of the acts alleged,” such as the indiscriminate killing and forced displacement of Palestinians in Gaza, could fall within the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

To issue a provisional measures order, the Court must be satisfied that it has prima facie jurisdiction, that there is a “plausible” link between the rights asserted by South Africa and the measures it requests, and a risk of irreparable harm and urgency.

Israel-Hamas war: What international laws apply and whether the ICC can prosecute | Explained

‘Genocidal intent’ — South Africa’s allegations against Israel

In its extensive 84-page application, South Africa has alleged that Israel’s conduct in Gaza violates its obligations under the Genocide Convention, adopted in 1948 following the atrocities of World War II and the Holocaust. It has been ratified by an overwhelming number of States, including South Africa (1998) and Israel (1950). The jurisprudence of ICJ considers the prohibition of genocide a peremptory norm of international law (jus cogens) from which no derogation is permissible.

Article IX allows any state party to the Convention to institute a case against another in the ICJ, even if it is not directly involved in the conflict. For instance, in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar.

“The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” the application stipulates. It has also highlighted that provisional measures are necessary “to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity.” The measures sought include those to prevent the destruction of any evidence related to the case by providing fact-finding missions, international mandates, and other bodies access to Gaza.

Notably, South Africa has emphasised that Israel has been carrying out hostilities against Palestinians even before Hamas’s actions on October 7, which it has unequivocally condemned in its plea. It notes that between September 29, 2000 and October 7, 2023, approximately 7,569 Palestinians, including 1,699 children,” were killed by Israel during military operations, “with tens of thousands of others injured.”

The Convention defines genocide as acts such as killings “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” Proving such specific intent on the part of the perpetrators is difficult and is generally ascertained through circumstantial evidence; genocidal intent will rarely be expressly stated.

Accordingly, South Africa has cited statements made by Israeli leaders as evidence of genocidal intent against Palestinians, contrary to Israel’s self-defence claim against Hamas. Such examples of “direct and public incitement to commit genocide by Israeli state officials” also include remarks made by Prime Minister Benjamin Netanyahu comparing Palestinians to the biblical Amalek— a nation instructed by God to be destroyed entirely. It also references a statement made by Israeli President Isaac Herzog on October 12 declaring that there was no differentiation between armed fighters and civilians in Gaza.

Threats to make Gaza permanently uninhabitable, references to Palestinians as human animals by Defense Minister Yoav Gallant, and calls by far-right ministers Bezalel Smotrich and Itamar Ben Gvir to resettle Palestinians outside Gaza have all been documented in the claim.

The application further states that the “scope of the Israeli military’s operations — its indiscriminate bombings and executions of civilians, as well as Israel’s blockade of food, water, medicine, fuel, shelter, and other humanitarian assistance” have pushed Palestinians to the “brink of famine.”

“[Genocidal intent] is also clear from the nature, scope, and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed. Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm.”South Africa’s application instituting proceedings against Israel

The claim further contends that the “conduct of Israel — through its state organs, state agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza” shows a “collective intent” to perform genocidal acts.

Besides genocide, it has also been claimed that Israel is violating other aspects of international law including the Geneva Conventions by “attacking sites of “religion, education, art, science, historic monuments, hospitals and places where the sick and wounded are collected.”

South Africa’s claims are supported by references to reports and investigations by sources such as the International Committee of the Red Cross, the World Health Organisation, Palestinian journalists on the ground, and numerous independent United Nations’ human rights experts.

‘Blood libel’— Israel’s response

Responding to the suit, Israel’s Ministry of Foreign Affairs has vehemently denied allegations of genocide and has described the case as a “despicable and contemptuous exploitation” of the Court. However, spokesperson Eylon Levy confirmed that Israel will be defending itself at the hearings. “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy,” he told reporters.

Mr. Levy has also contended that Israel’s conduct in the ongoing hostilities focuses on its right to self-defence while ensuring that measures are taken to reduce civilian casualties. “We have been clear in word and in deed that we are targeting the 7 October monsters and are innovating ways to uphold international law, including the principles of proportionality, precaution, and distinction in the context in a counter-terror battlefield no army has faced before. That is why we spent weeks urging residents in northern Gaza to evacuate before the ground offensive. To warn civilians we placed over 70,000 phone calls, sent 13m text messages, left 14m voice messages, and dropped nearly 7m leaflets urging civilians to evacuate temporarily for their safety, informing them about humanitarian pauses and precise evacuation routes,” he asserted.

How have other countries reacted?

South Africa’s claim has been welcomed by the Organization of Islamic Cooperation, which includes 57 African and Muslim-majority countries such as Turkey and Malaysia, which have also issued separate statements of support. Bolivia dubbed the move as ‘historic,’ becoming the first Latin American country to back the ICJ case against Israel.

Maldives, Namibia, and Pakistan have also voiced their support for the genocide case during a UN General Assembly session held on January 9.

Nations opposing the claim include the United States, with National Security spokesperson John Kirby calling the lawsuit “meritless, counterproductive, and completely without any basis.” The European Union has also maintained silence on the case.

The United Kingdom has been accused of hypocrisy after it rejected South Africa’s appeal despite submitting detailed legal arguments to the ICJ about a month ago to support claims that Myanmar committed genocide against the Rohingya ethnic group.

What can be expected?

Due to weak enforcement mechanisms, the court’s decisions are often defied despite being legally binding. In most recent high-profile cases including Ukraine v. Russia in 2022, the Gambia’s claims of genocide against Myanmar in 2020, Nagorno-Karabakh, and US sanctions on Iran — an adverse ruling was not adhered to by the concerned state party.

“The ICJ can enforce decisions provided the UN Security Council is willing to act on it. In the Russia-Ukraine case, the problem was that since Russia is a permanent member, you cannot get a consensus at the Security Council,” says Prabhash Ranjan, Associate Professor at the Faculty of Legal Studies, South Asian University.

He points out that in this case too, the United States, the strongest ally of Israel, could veto any action taken against it. Since 1945, the US has vetoed 34 out of 36 UNSC draft resolutions related to the Israel-Palestine conflict.

Highlighting that this case differs from the case instituted by Ukraine against Russia since the two parties were also the two involved in the conflict, Mr. Ranjan says, “There is one important factor that has to be kept in mind. South Africa is not involved in this dispute. When Ukraine went to the ICJ, the court could ask both parties to stop the military hostilities. But in this case, Hamas is not a party to the proceedings. In that eventuality, can the ICJ then ask only Israel to halt combat operations? Because then Israel can argue that it cannot do so if Hamas continues its military strikes.”

Mr. Ranjan also notes that it is important that Israel has agreed to take part in the proceedings, forgoing its decades-long policy of ignoring the ICJ. This, he says, will create greater pressure on Israel to comply with an adverse ruling.



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South Africa accuses Israel at ICJ of breaching Genocide Convention

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A continent away from the war in Gaza, South Africa accused Israel of committing genocide against the Palestinians there and pleaded with the United Nations’ top court on Thursday to order an immediate halt to the country’s military operation. Israel has vehemently denied the allegations. 

South African lawyers said during the opening arguments that the latest Gaza war is part of a decadeslong oppression of the Palestinians by Israel.

The two-day hearing is the public side of a landmark case, one of the most significant to be heard in an international court and which goes to the heart of one of the world’s most intractable conflicts. 

South Africa is seeking binding preliminary orders to compel Israel to stop its military campaign in Gaza, in which more than 23,000 people have died, according to the health ministry which is run by Hamas. 

“Genocides are never declared in advance, but this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies as a plausible claim of genocidal acts,” South African lawyer Adila Hassim told the judges and audience in the packed, ornate room of the Peace Palace in The Hague. 

“Nothing will stop the suffering except an order from this court,” she said. 

 


 

Israel, however, says it is battling a fierce enemy in the Gaza Strip that carried out the deadliest attack on its territory, killing more than 1,200 people, since its creation in 1948. Israel says it is following international law and does its utmost to avoid harm to civilians. It blames Hamas for the high toll, saying its enemy embeds in residential areas. 

South Africa turns a deaf ear to such arguments, insisting Israel committed genocide by design. 

“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said lawyer Tembeka Ngcukaitobi. 

“What state would admit to a genocidal intent? Yet the distinctive feature of this case has not been the silence as such, but the reiteration and repetition of genocidal speech throughout every sphere of the state in Israel,” he said. 

 

Watch moreWith case filed to ICJ, South Africa accuses Israel of genocide in Gaza

 

Ahead of the proceedings, hundreds of pro-Israeli protesters marched close to the courthouse with banners saying “Bring them home,” referring to the hostages held by Hamas since it attacked Israel on Oct. 7. 

One of the Israeli protesters outside the court was Michael Nevy, 42, whose brother was kidnapped by Hamas. “People are talking about what Israel is doing, but Hamas is committing crime against humanity every day,” he said. 

At a separate demonstration nearby, pro-Palestinians protesters waved flags saying: “End Israeli Apartheid Free Palestine” and chanting “Netanyahu criminal” and “Ceasefire now!” 

The dispute strikes at the heart of Israel’s national identity as a Jewish state created in the aftermath of the Nazi genocide in the Holocaust, during which 6 million Jews were murdered.

It also evokes issues central to South Africa’s own identity: Its governing party, the African National Congress, has long compared Israel’s policies in Gaza and the West Bank to its own history under the apartheid regime of white minority rule, which restricted most Blacks to “homelands” before ending in 1994.

In a sign of how seriously Israel is taking the accusation, it has sent a strong legal team to defend its military operation launched in the aftermath of the Hamas attacks. Israel often boycotts international tribunals or U.N. investigations, saying they are unfair and biased.

A decision on the request for so-called “provisional measures” will likely take weeks. The case is likely to last years.

While Israel has vehemently denied the allegations, it is unclear whether it will heed any order from the court to halt operations. If it doesn’t, it could face U.N. sanctions, although those may be blocked by a U.S. veto.

Israel’s lawyers will address the court Friday. 

South Africa immediately sought to broaden the case beyond the narrow confines of the ongoing Israel-Hamas war. 

“The violence and the destruction in Palestine and Israel did not begin on Oct. 7, 2023. The Palestinians have experienced systematic oppression and violence for the last 76 years,” said South African Justice Minister Ronald Lamola. South Africa argued that Israel’s actions in Gaza are an inevitable part of its history since it declared independence.

Israeli Prime Minister Benjamin Netanyahu issued a video statement Wednesday night defending his country’s actions and insisted they had nothing to do with genocide.

“Israel has no intention of permanently occupying Gaza or displacing its civilian population,” he said. “Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law.”

About two-thirds of the dead in Gaza are women and children, health officials in Hamas-ruled Gaza say. The death toll does not distinguish between combatants and civilians.

“Mothers, fathers, children, siblings, grandparents, aunts, cousins are often all killed together. This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No one is spared. Not even newborn babies,” said South African lawyer Hassim. 

Finding food, water, medicine and working bathrooms has become a daily struggle for Palestinians in Gaza. Last week, the U.N. humanitarian chief called Gaza “uninhabitable” and said, “People are facing the highest levels of food insecurity ever recorded (and) famine is around the corner.” 

Israel itself has always focused attention on the Oct. 7 attacks themselves, when Hamas fighters stormed through several communities in Israel and killed some 1,200 people, mainly civilians. They abducted around 250 others, nearly half of whom have been released.

The world court, which rules on disputes between nations, has never judged a country to be responsible for genocide. The closest it came was in 2007 when it ruled that Serbia “violated the obligation to prevent genocide” in the July 1995 massacre by Bosnian Serb forces of more than 8,000 Muslim men and boys in the Bosnian enclave of Srebrenica.

The International Criminal Court, based a few miles (kilometers) away in The Hague, prosecutes individuals for war crimes, crimes against humanity and genocide.

The case revolves around the genocide convention that was drawn up in 1948 in the aftermath of World War II and the murder of 6 million Jews in the Holocaust. Both Israel and South Africa are signatories.

Israel is back on the International Court of Justice‘s docket next month, when hearings open into a U.N. request for a non-binding advisory opinion on the legality of Israeli policies in the West Bank and east Jerusalem.

(AP)

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Essequibo referendum: Is Venezuela about to seize part of Guyana?

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Venezuelan President Nicolas Maduro is organising a referendum on Sunday to decide whether to create a new state in the Essequibo territory, an area currently under the control of neighbouring Guyana. Does Caracas have the means for its territorial ambitions, or is it just political grandstanding?

On December 3, Venezuelans vote for or against the creation of a new Venezuelan state in the Essequibo region. In the eyes of Venezuelan authorities, it is a “consultative” referendum designed to put an end to over 200 years of territorial conflict. 

However, there is one big problem: the land Venezuela wants to potentially extend control over is recognised by the international community as a part of neighbouring Guyana – a sparsely populated country with some 800,000 inhabitants.

The issue has become an obsession for populist President Nicolas Maduro, who often repeats the phrase “El Essequibo es Nuestro” [The Essequibo is ours] in his speeches.

Among four other questions, the referendum asks citizens whether they favour “the creation of the Essequibo state and the development of an accelerated plan for comprehensive care for the current and future population of that territory”.

The outcome of the vote is hardly in doubt according to French daily Le Monde, which reported Thursday that the referendum “will take place without observers” and that no one dared to campaign for the “no” vote.

This situation is causing concern for Guyana’s leaders. Caracas is threatening to deprive its eastern neighbour of more than half of its territory and to make the approximately 200,000 inhabitants of Essequibo Venezuelan citizens.

“The long-term consequences of this referendum could be Venezuela’s de facto annexation of a region which covers 160,000 square kilometers, a significant portion of Guyana [215,000 km²],” says Annette Idler, associate professor at the Blavatnik School of Government at the University of Oxford and a specialist in international security.

On top of significant gold, diamond, and aluminium deposits, the Essequibo has become an offshore paradise for oil and gas interests. Since Exxon discovered hydrocarbon deposits off the coast, black gold has given an unprecedented boost to the economy, raising Guyana’s GDP by no less than 62 percent in 2022.

© Guillermo Rivas Pachecor, Paz Pizarro, Jean-Michel Corbu, Patricio Arana, AFP

Writing in 2015, an American specialist in Latin America, Jose de Arimateia da Cruz, argued the discovery of these underwater oil reserves “strengthened Venezuela’s determination to support its territorial claims on this region”.

The Venezuelan government has been particularly angered by Exxon’s choice to negotiate exclusively with the Guyanese government, suggesting that the US oil giant recognised Guyana’s sovereignty over these waters and the Essequibo region.

A territorial dispute dating back to 1811

The territorial dispute over Essequibo dates back to the colonial era. In 1811, when Venezuela proclaimed its independence, it believed the region was part of its territory. Despite the claims, the United Kingdom, which occupied the territory of present-day Guyana, placed the region under the authority of the British crown. In 1899, an arbitration court ruled in favour of the UK, even though the United States had supported Caracas.

The dispute resurfaced in 1966 when Guyana gained independence. The Geneva Agreement, signed by the UK, Venezuela, and British Guiana, urged countries to agree to a peaceful resolution through dialogue, but Guyana has since sought a resolution through the International Court of Justice (ICJ) – a procedure which Venezuela rejects. 

If the Venezuelan government is pushing for a referendum now, it is partly “because the International Court of Justice declared itself competent in April to settle the dispute”, says Idler.

Maduro does not want to recognise the ruling of the ICJ – a branch of the UN with nonbinding legal authority. He even called on United Nations Secretary-General Antonio Guterres to mediate between Venezuela and Guyana.

Venezuela's President Nicolas Maduro casts his vote during a consultative referendum on Venezuelan sovereignty over the Esquiba region controlled by neighbouring Guyana, in Caracas on December 3, 2023
Venezuela’s President Nicolas Maduro casts his vote during a consultative referendum on Venezuelan sovereignty over the Essequibo region, controlled by neighbouring Guyana, in Caracas on December 3, 2023. © Venezuelan Presidency via AFP

There is also – perhaps most importantly – a domestic political element to the referendum. “We must not forget that the presidential election takes place in a year, and Nicolas Maduro is trying to rally support around him by playing to the national sentiment of voters,” explains Idler.

By presenting himself as the champion of nationalism, “he puts the opposition in a delicate position”, she adds. What’s more, “some observers believe he could escalate the situation with Guyana to declare a state of emergency and cancel the presidential election if necessary”.

Faced with the Venezuelan threat, Guyana is relying heavily on international law. A case was referred to the ICJ on October 3 to prevent Caracas from proceeding with its referendum. 

On Friday, the ICJ called on Caracas to take no action that would modify the disputed lands – but it did not mention the referendum.

Is Maduro bluffing?

The risk is that Venezuela may want to take advantage of international attention being focused on two major conflicts in Ukraine and Gaza. Venezuelan troops are already on the border with Guyana “carrying out anti-illegal mining activities”, reports the Financial Times.

If Venezuela were to genuinely attempt to annex Essequibo, “it could destabilise the entire region”, says Idler. Countries like Brazil or Uruguay could be forced to choose sides in this territorial conflict.

But the annexation threat could also be a bluff. Venezuela may not have the means to seize the territory, says Idler. “The authorities exercise limited control over the border regions from where Caracas would need to launch troops to take possession of this region.”

Venezuela’s president knows that such a move would prompt the United States to reimpose the sanctions that Washington has just lifted on oil exports, says Idler. Economically very fragile, Venezuela may think twice before taking such a risk.

Regardless of how the roughly 20 million eligible Venezuelans vote, little will change in the short term – the people of Essequibo are not voting, and the referendum is nonbinding.

Either way, says Idler, Maduro can hardly afford to act on his nationalist impulse.

“He will then have to choose between discrediting himself in the eyes of voters and facing new American sanctions.”

This article was translated from the original in French.

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