INTERVIEW: Israel ICJ trial breathes new life into ethics, humanity, and morality: Egyptian legal expert

Amira Doss, Friday 19 Jan 2024

Ali El-Ghatit, an Egyptian legal expert and prominent professor of international law, outlines how the case brought before the International Court of Justice (ICJ) by South Africa against Israel for genocide might unfold.

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Al-Ahram Hebdo: What is the political and legal significance of this trial against Israel?

Ali El-Ghatit: On 29 December, South Africa filed a complaint against Israel for genocide with the International Court of Justice (ICJ), giving rise to hope and faith in humanity worldwide. It is truly a historic, unprecedented, and courageous trial. 

Firstly, it addresses the ongoing bombings and bloody attacks on Palestinian territory while the ICJ is examining the matter. Most trials of this nature are filed after violations have occurred, as seen in the genocide case filed by The Gambia against Myanmar and examined by the ICJ in 2022. What makes South Africa's complaint unique is that its legal team presented various documents as evidence of a "genocidal behavior trend." The document, comprising 84 pages, discusses "murder that is nothing short of the destruction of Palestinian lives."

The UN tribunal is responsible for settling disputes between states. The public hearings held on January 11 and 12 in The Hague aimed to examine the "provisional measures" requested by South Africa accompanying its complaint. 

According to the submitted text, Pretoria asks the ICJ to order Israel to "stop killing and causing serious mental and physical harm to the Palestinian people, cease deliberately imposing living conditions intended to bring about their physical destruction as a group, and allow access to humanitarian aid." 

As a co-signatory of the Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948 after World War II, South Africa claimed to present evidence accumulated since 8 October.

AH: Is this the first time Israel is being prosecuted for its violations against the Palestinian people?

AG: In 2004, the ICJ issued an "advisory opinion" on Israel's construction of a wall in the occupied territories. At that time, the United States rejected considering this opinion as a condemnation of Israel, although the text itself was a judgment denouncing Israel's construction. This US protection grants Israel such immunity.

Other international legal institutions should seize the opportunity, with Israel currently being prosecuted at the ICJ, to initiate further cases related to the inhumane living conditions of Palestinians.

AH: Why was this complaint filed by South Africa and not by Palestine or another Arab country?

AG: There is a historical aspect that cannot be ignored. South Africa has a long history of suffering from discrimination and genocide. In the struggle against apartheid, Nelson Mandela repeatedly stated that South Africa's freedom would be incomplete without the freedom of Palestinians. He inspired his people to act before the ICJ. 

For South Africa, this is not only a shared history but also a matter of principle. Supporting peoples suffering from injustice was a duty for Mandela. This trial is a breath of life for the ethics, principles of humanity, and morality of the South African people. It is not strange that in 1991, this country chose to ratify the Genocide Convention first. 

Even though the trial is initiated now, it doesn't prevent other countries from joining South Africa, provided they are signatories of the Convention. Organizations like the Arab League can also join the trial. 

The Genocide Convention marked a crucial step in the development of human rights and international criminal law. It was the first human rights treaty adopted by the UN General Assembly in 1948, a manifestation of the international community's commitment to never let atrocities like those during World War II happen again. 

According to this Convention, the definition of genocide encompasses not only direct acts intentionally subjecting a group to conditions of existence leading to its total or partial physical destruction but also indirect acts that can prevent a people's access to resources for survival. Genocide can occur by killing or by prohibiting access to food and aid. Thus, the risk of famine threatening the Palestinian population is also part of this definition. 

The Convention is dedicated to saving humanity, and signatory countries are obligated not only to refrain from acts of genocide but also to prevent them.

AH: What are the foreseeable scenarios for the trial?

AG: Firstly, the ICJ must decide it has the jurisdiction to hear the case, and its jurisdiction is based on the matter. The procedure concerning the Court's jurisdiction will likely take place in the coming days. To do this, both the complaining and accused countries must be signatories to the Convention on the Prevention and Punishment of the Crime of Genocide, which is the case.

However, a significant obstacle often hampers the enforcement of judgments issued by the ICJ. This obstacle is the need for the condemned state's approval to undergo the imposed penalty. In case of refusal, the matter is transferred to the Security Council, allowing certain countries to exercise their veto right hindering the execution of the judgment. This is a major flaw and detour imposed by the United States, thus diminishing the power of the ICJ. 

In the case of the trial initiated by South Africa against Israel, we will face this dilemma: how will the pronounced judgment be executed if Israel decides not to comply and if the matter is taken to the Security Council? At that moment, we will likely face the almost certain veto of the United States and the United Kingdom.

In the ongoing trial, an important point exists. Even if the procedure may take years, Pretoria has requested the ICJ to make an emergency decision and order measures to compel Israel to permanently end its military offensive and allow the Palestinian people access to humanitarian aid. In my opinion, this is the most likely scenario.

AH: Considering the scenarios you have addressed, what would be the importance of the judgment if it risks facing the Security Council's veto?

AG: If Israel refuses to comply with the judgment pronounced by the Court, and if the Security Council cannot compel it due to the American veto, there is another trick. The UN General Assembly may unanimously vote in favor of the judgment, as seen in the resolution known as the "Peacekeeping Union." This resolution allows the Assembly to act if the Security Council refrains from doing so following the negative vote of one of its members. This principle was adopted in 1950 to correct a potential abuse of power due to the veto right.

Another significant hope exists. The trial reflects the impact and pressures currently exerted by the people on governments worldwide. This pressure now affects legal entities and the concept of international law. This trial is tangible evidence of global awareness and awakening. It is the first time in history that people assert having the final say. If hundreds of thousands of people had not taken to the streets to protest against this injustice in capitals worldwide, such a trial would not have materialized. International law comes to the rescue of human rights, the fundamental right to life.

AH: Israel's defense team accused Egypt of preventing the delivery of humanitarian aid to Gaza. What legal steps should Egypt take after these allegations?

AG: Egypt must immediately take all legal measures to prove that these accusations are unfounded. A team of experts should promptly address the ICJ, presenting all evidence, documents, and videos proving the delivery of aid through the Rafah crossing, and documenting all incidents of strikes targeting the border post, trucks, and ambulances. A team of experts should examine all accusations and present all evidence to the Court regarding Israel's attempts to obstruct the passage of humanitarian convoys.

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