ICJ hearing puts Israel in the dock

Tuesday 16 Jan 2024

South Africa’s case against Israel at the International Court of Justice is a watershed moment for the Palestinian question

ICJ hearing puts Israel in the dock


Like a neat bookend to Hamas’ 7 October incursion into Israel, the South African delegation’s three-hour oral argument at the International Court of Justice (ICJ) on 11 January against Israel’s genocide in Gaza marked 100 days of a war that has killed 30,000 Palestinians and destroyed at least half of the enclave’s infrastructure.

With the displacement of 90 per cent of the population amid calls by Israeli officials to annihilate Gaza and transfer its population to neighbouring countries, the Republic of South Africa, which instituted proceedings against Israel at the ICJ, accusing it of violating its obligations under the Genocide Convention last month, made its case before both the court and the world on 11 January at The Hague.

Israel’s legal team defended itself before the ICJ the following day.

After concluding the two-day hearings, the court’s president, US judge Joan E Donoghue, said the ICJ’s judicial panel would begin its deliberation. The court’s decision will be delivered in a public sitting, the date of which will be “announced in due course,” which observers expect to be in a few weeks.

South Africa’s application and the arguments of its delegation at the ICJ seek to convince the court to both adopt its list of provisional measures to stop the war and to accept the merit of its allegations that Israel has violated and is violating the Genocide Convention.

Because the Genocide Convention stipulates that provisional measures in its regard are prioritised above all other cases, the court was obliged to respond swiftly by scheduling the hearings only two weeks after South Africa filed its application on 29 December last year.

The ICJ’s deliberation will decide if South Africa’s case is strong enough to adopt some or all of the provisional measures, essentially restraining orders, to stop Israel’s war and ease the suffering of the Palestinians in Gaza. The case itself, Israel’s alleged violation of the Genocide Convention, to which it and South Africa are parties, will take years to conclude.

While the court’s decisions are binding and cannot be appealed, it does not have the means to enforce them. But because the ICJ is the UN’s principal judicial organ, for which it is dubbed the “World Court,” its opinions shape international law and have the political and legal weight to be effective.

If the court does not adopt any of South Africa’s provisional measures, it can still decide it has jurisdiction and proceed with the case.

While any state party invoking the Genocide Convention, described as the crime of all crimes, against another is a serious undertaking that prompts international attention, the persuasive speeches by South Africa’s delegation elevated the hearings at the ICJ to the kind of powerful legal situation that only an actual trial could achieve.

By presenting Israel’s genocidal war against the blockaded Gaza Strip within the context of the 1948 Nakba, or the Palestinian Catastrophe when Israel was created 75 years ago, and its system of Apartheid imposed on Palestinians since, South Africa’s representatives struck a powerful chord with millions globally.

Adila Hassim, a lawyer in South Africa’s High Court, opened the arguments by laying out how Israel’s genocidal acts are in violation of the Genocide Convention, after highlighting the 16-year-old blockade on Gaza imposed by Israel.

This is a case, she told the court, “that underscores the very essence of our shared humanity.” In a 24-minute impassioned speech Hassim detailed a selection of Israel’s actions in Gaza that “fall within the definition of genocide” and have led to the request for provisional measures.

“For the past 96 days, Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare,” she said. Palestinians are being starved and are subject to death, Hassim explained, by dehydration, disease, and heavy Israeli bombing in the besieged Strip whose population of 2.3 million people have nowhere to go.

Hassim’s succinct detailing of Israel’s systematic killing of Palestinians since 7 October, already documented in dozens of reports by rights groups and statements of UN agencies and officials, resonated more effectively as a result of her powerful oratory and use of an international recognised judicial platform like the ICJ.

Irish barrister Blinne Ní Ghrálaigh spoke about “the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate hope that the world might do something.”

South African lawyer Tembeka Ngcukaitobi addressed the most challenging aspect of proving genocide, which is intent, by connecting the many public genocidal statements of Israeli officials to the actions of the Israeli Occupation Forces (IOF) during the war.

Ngcukaitobi cited the reference to “Amalek” by Israeli Prime Minister Benjamin Netanyahu on 28 October. “This refers to the Biblical command by God to Saul for the retaliatory destruction of an entire group of people, known as the Amalekites,” he explained.

The closing argument was made by Professor Vaughan Lowe KC, who reminded the court that under Article 51 of the UN Charter, a state cannot claim self-defence against a territory under its occupation. And since the UN Security Council maintains that Gaza is occupied, Israel’s actions in the besieged enclave are to enforce occupation and not to exercise self-defence.

“I wish my father was alive to hear this,” Zahira Jazer, a Palestinian associate professor at the University of Sussex in the UK, wrote on X, formerly Twitter. “I can’t believe what I’m listening to, as the testimonies and the documentation of intent to exterminate Palestinians are being read at ICJ,” Palestinian journalist and researcher Mariam Barghouti wrote on Twitter.

“This at once eases the heart as Palestinians continue to defy death not just to survive, but to showcase the world Israel’s insanity. It also horrifies me to hear it read out loud again, publicly, and I keep asking, how the hell did Israel manage to continue this much?”

Israel’s argument on 12 January led by Tal Becker, legal adviser to the Israeli Ministry of Foreign Affairs, argued that South Africa had “ignored” the events of 7 October, emphasising that Israel had the right to defend itself, while attacking South Africa which he accused of maintaining close ties with Hamas.

Israel’s Deputy Attorney General for International Affairs Gilad Noam, closed Israel’s arguments by arguing against the use of provisional measures on the grounds that Hamas is considered a terrorist organisation that executed a large-scale attack on Israel.

Upon returning home from The Hague, South Africa’s Justice Minister Ronald Lamola, who led the legal delegation, said he found Israel’s justification before the ICJ “astonishing” with no effort to back it up by facts or the situation on the ground.

“Israel suggests that the Genocide Convention is primary for their protection, and because of that, it is not capable of violating its own provisions,” he said.

After the ICJ concluded its hearings, Germany accused South Africa of politically instrumentalising the Genocide Convention and said it would intervene against the case at The Hague.

Stefan Talmon, a Professor of International Law at Bonn University, described Germany’s intervention as politically ill-advised. It was “disrespectful to the court and in the light of Germany’s intervention in the case of the Gambia vs Myanmar is legally problematic and smacks of double standards,” he said.

The Genocide Convention defines genocide as specific “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” For a situation to constitute genocide, both the specific acts and the specific intent to destroy a group must be proven, said Lisandra Novo, a former judicial fellow at the ICJ.

“It is not enough to show that atrocities have been committed – the intention by the responsible actors to destroy a group, completely or in part, must be demonstrated,” she told the US think tank the Atlantic Council.

South Africa’s charge of genocide did not come out of the blue, as international law experts Michelle Farrell and Jasmin Johurun Nessa pointed out in a joint article published on the University of Liverpool Website in the UK this week.

In mid-November, UN experts called on the international community “to act quickly to prevent genocide.” International legal experts also expected a state to apply to the ICJ under the Genocide Convention, a judicial route that could offer some protection.

“The complete siege of Gaza – cutting off food, water, and fuel – the evacuation orders and the bombardment combined with the language of political and military leaders prompted these fears of an unfolding genocide,” they argued.

In the capitals of Israel’s primary allies the US and Britain, massive anti-war and pro-Palestine demonstrations took place over the weekend. In London, an estimated 500,000 people took to the streets, with the active involvement of the biggest Jews for Palestine and biggest trade union blocs to date.

“Watching African women and men fighting to save humanity and the international legal system against the ruthless attacks supported and enabled by most of the West will remain one of the defining images of our time,” said Francesa Albanese, UN special rapporteur to the Occupied Palestinian Territories.

“This will make history whatever happens.”

* A version of this article appears in print in the 18 January, 2024 edition of Al-Ahram Weekly

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