Israel faces the 'crime of all crimes' in The Hague

Amira Howeidy , Tuesday 9 Jan 2024

The International Court of Justice begins two-day hearings this week of South Africa’s case against Israel, accused of violating the Genocide Convention.

A bulldozer unloads the bodies of Palestinians into a mass grave after being killed in Israeli strik
A bulldozer unloads the bodies of Palestinians into a mass grave after being killed in Israeli strikes


The International Court of Justice (ICJ) will begin two days of hearings on 11 and 12 January in The Hague in response to an emergency request by South Africa for its intervention to stop Israel’s three-month-old war on Gaza.

The request was submitted in the form of an 84-page application by the government of South Africa accusing Israel of committing genocidal acts against the Palestinian people in Gaza.

The hearings will begin at 10:00am and continue for two hours on Thursday and Friday this week. South Africa’s legal team will make its oral arguments on 11 January, followed the next day by Israel’s.

The hearings are open to the public, diplomats, and the press and will be transmitted live in the two official languages of the court, English and French, including on the court’s Website and on UN Web TV.

The ICJ’s 15-judge panel will be expanded by an additional ad-hoc judge from each side.

According to the local press, Israel’s Foreign Ministry has informed its embassies worldwide to prompt its allies to reject the case and emphasise that it has provided, contrary to assertions by all UN and international humanitarian agencies, for humanitarian aid to enter Gaza.

Both South Africa and Israel are signatories to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which allows state parties to institute proceedings against each other for alleged violations.

While cases brought to the ICJ can take years to resolve, South Africa’s case includes a list of provisional measures or restraining orders that it is asking the court’s president to adopt in order to halt Israel’s military assault on Gaza.

The ICJ’s rulings and opinions are binding, but the court does not have the means to enforce them. Any ruling against Israel and the actions of its occupation forces could seriously impact its reputation.

Israel has killed close to 30,000 Palestinians since its 7 October onslaught against the besieged Gaza Strip after the incursion operation by members of the Palestinian resistance movement Hamas the same day.

Approximately 250 Israeli civilians (among other nationalities) and military personnel were captured and taken to Gaza in the Hamas-led Al-Aqsa Flood Operation with the aim of exchanging them for thousands of Palestinians, including children, held in Israeli prisons.

According to independent international rights groups and UN officials and agencies, Israel’s daily bombing of Gaza has destroyed the vast majority of its civilian infrastructure and residential buildings, making them uninhabitable.

Israel has blocked the entry of fuel, water, and all essential means of sustenance for the enclave’s 2.2 million inhabitants, including medical supplies, equipment, and medication. Almost 1.9 million Palestinians have been displaced to overcrowded shelters lacking basic services as infectious diseases continue to unfold.

The entire population is now at risk of famine, according to the UN.

In its detailed application to the ICJ, South Africa, citing statements by Israeli military and political officials, argued that Israel’s actions are “genocidal in character” as they are committed with “the requisite intent to destroy Palestinians in Gaza as a part of the broader national, racial and ethnical group.”

Most importantly, the application requests that the court adopt provisional measures to call upon Israel to cease killing Palestinians and “the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group,” among other measures listed by South Africa such as removing restrictions on aid and the issuing of evacuation directives by the Israeli occupation forces.

Although the initial reaction by Israel’s Foreign Ministry was to reject the case, which it calls “blood libel,” Tel Aviv has decided to defend Israel’s war on Gaza before the ICJ, although it is not obligated as a state party to the Genocide Convention to do so.

South Africa is accusing Israel of the “most egregious crime,” said Victor Kattan, an assistant professor of public international law at Britain’s University of Nottingham. While genocide is extremely hard to prove, he observed that the case is significant because genocide “is the crime of all crimes,” and Israelis “are horrified” that their name could be associated with these atrocities.

The court is composed of 15 judges elected for nine-year terms by the UN General Assembly and Security Council. It has a twofold role: first to settle, in accordance with international law, legal disputes submitted to it by states parties; and second, to give advisory opinions on legal questions referred to it by duly authorised UN organs and agencies of the system.

Israel has appointed retired Supreme Court president Aharon Barak, 87, to serve with the court’s permanent panel for the case. Barak is a right-wing Israeli judge and Holocaust survivor with an international reputation. Prominent British legal scholar Malcolm Shaw will represent Israel in defending the South African submission.

South Africa’s ad hoc appointee judge is Dikgang Moseneke, 76, a highly respected former deputy chief justice.

International law expert John Dugard, 87, will lead South Africa’s case. He is a former UN special rapporteur on Human Rights in the Occupied Palestinian Territories and served as an ad hoc judge with the ICJ.

Bolivia, Turkey, Malaysia, and the Organisation of the Islamic Conference (OIC), a 57-member bloc, have issued statements supporting South Africa’s case against Israel. Jordan’s foreign minister also said his country would support South Africa.

But such gestures are not enough, said Kattan.

“These statements are helpful, but a more powerful sign of support for South Africa’s case against Israel under the Genocide Convention would be for Arab, OIC, or Group of 77 states to make declarations of intervention to the court under Article 63 of the ICJ Statute,” he added

* A version of this article appears in print in the 11 January, 2024 edition of Al-Ahram Weekly

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