The Business of Genocide 2

Ihe International Court of Justice

Prologue

On 26 January 2024 the International Court of Justice released its interim decision on the case of South Africa v Israel. There is a horrible irony as to the date of the release of the decision. It was the day before International Holocaust Remembrance Day. Clearly the Court seems to have overlooked the coincidence of dates although I can understand its desire to release its decision given the ongoing conflict in Gaza. Needless to say the optics are terrible.

This article considers aspects of the decision of the Court and some of its implications. It was originally intended that some observations about the ICJ decision could be incorporated into the preceding companion piece “The Business of Genocide.” However, the decision warranted a commentary of its own.

The nature of the Middle Eastern situation is difficult, long lasting (as will be seen from the graphic at the end of this article) and almost insoluble. There are no simplistic solutions. It is not a black and white situation but involves many shades of gray – not to mention the red of the blood that has been shed.

In some respects I have isolated a couple of contemporary elements that need to be articulated and one in particular that the ICJ either naively or intentionally chose to ignore. It is said ad nauseum “in the law context is everything”. In this case, South Africa argued the context was not relevant. The ICJ drank that Kool Aid.

Sections of this article contain graphic descriptions of violence and particularly sexual violence.

The Nature of the Case

South Africa launched proceedings at the court under article 9 of the Genocide Convention 1948, which says that disputes between parties to the convention may be submitted to the ICJ. South Africa alleged that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.

Israel did not deny that the Palestinians are a “group” within the meaning of the convention or that Palestinian civilians are being killed in Gaza. What it disputed was that it was committing genocide — “there can hardly be a charge more false or more malevolent”, it said — and that it intends to commit genocide. “If there have been acts that may be characterised as genocidal,” the Israeli foreign ministry’s legal adviser told the court at the hearing “then they have been perpetrated against Israel.”

The Court addressed the stimulus for the Israeli military action as follows:

“ [On] 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza” (Para 13)

No detail is given nor is there any consideration of the nature of the atrocities that were perpetrated against Israeli citizens by Hamas terrorists. I will return to this matter later in this article.

South Africa asked the Court to provide the following provisional relief:

1.   Require Israel to “immediately suspend its military operations in and against Gaza” – in effect a ceasefire.

2.   Direct Israel that others under its control or influence must do so too.

3.   Require South Africa and Israel to prevent genocide.

4.   Direct Israel to desist from genocide.

5.   Direct Israel to desist from other specified actions in relation to Palestinians.

6.   Direct Israel that others under its control or influence must do so too.

7.   Direct Israel to preserve evidence.

8.   Direct Israel to tell the court within a week, and regularly after that, what it is doing to comply with the court’s order.

9.   Direct Israel not to do anything to aggravate or extend the dispute before the court.

The Court did not grant all of South Africa’s requests. Importantly it did not decide that genocide had been committed. However, the directions that were issued concluded that there was a potential for the commission of genocide in breach of the Convention.

The Court observed that it had the power to indicate different provisional measures from those requested. It decided by significant majorities that:

1.   Israel must take all measures within its power to prevent the commission of all acts within the scope of article 2 of the genocide convention.

2.   Israel must ensure with immediate effect that its military does not commit any of these acts.

3.   Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in Gaza.

4.   Israel must take immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.

5.   Israel must take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocide

6.   Israel must submit a report to the court on all measures taken by it to give effect to this order within one month from the date of judgement.

Two other issues were left open.

The court reaffirmed that the decision given in the present proceedings in no way prejudged the question of the jurisdiction of the court to deal with the merits of the case or any questions relating to the admissibility of the application or to the merits themselves. It left unaffected the right of the governments of the Republic of South Africa and the State of Israel to submit arguments in respect of those questions.

The court deemed it necessary to emphasise that all parties to the conflict in the Gaza Strip were bound by international humanitarian law. It was gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.

In that paragraph is the only other recognition of the role of Hamas in the atrocities that incited the conflict. Furthermore it makes it clear that Hamas was required to release the hostages taken without conditions. So far this has not received compliance.

Observations About the Decision