Genocidal Tremors: Taking Israel to the International Court of Justice
Litigating against countries is the stuff of esoteric delight for international lawyers. Such matters become yet more complex when it comes to claims of genocide or broader crimes against humanity. Accusations, however motivated, are always easy to make. Proving them in a court of law is quite another proposition. International law remains a terrain of punctures and potholes, rather than smooth lines and fine paving. Working around those punctures is a skill worthy of prize and praise.
The ongoing flattening, mauling and extirpation of the Gaza Strip by Israel’s armed forces has drawn interest from jurists and litigants. The potholes and punctures, in that sense, seem to be filling up. It’s hard not to see why, when you have such startlingly grotesque admissions as those from Rear Admiral Daniel Hagari, a chief spokesman for the IDF, that “the emphasis is on damage and not on accuracy.”
Then come such background briefs as those from retired Colonel Pnina Sharvit Baruch, former director of the wing celebrated for advising IDF commanders about complying with the rules of war. A dive into the short overview from Baruch makes for grim reading. The aim, not method, is what matters, namely, the destruction of Hamas. “Without achieving this goal, Hamas will succeed in de facto denying Israel the exercise of its sovereignty in the areas adjacent to the border with the Gaza Strip. In light of this significant military advantage, even if many civilians in Gaza are harmed during the attacks, this is not necessarily excessive incidental damage and therefore would not be disproportionate attacks that are illegal.” Mass murder can thereby be excused.
Leonard Rubenstein, a professor of practice at the Johns Hopkins Bloomberg School of Public Health, was sufficiently troubled by such reasoning to suggest that Israel had “asserted a theory of justifiable conduct in war that, contrary to this body of [humanitarian] law, elevates claims of military necessity in achieving the war’s aims over protection of civilians, particularly in a just war.”
In the international community, a number of actions are testing the waters of legality regarding Israel’s novel view of waging what is increasingly looking like a war of ghoulish extermination. In November, the New York Center for Constitutional Rights (CCR) filed a suit on behalf of Palestinian human rights groups, US citizens with relatives in Gaza and Palestinians in Gaza arguing that the Biden administration had been complicit and failed to prevent “the Israeli government’s unfolding genocide”. It notes the language of various Israeli government figures that demonstrate “clear genocidal intentions” while deploying “dehumanizing characterizations of Palestinians, including ‘human animals’”.
That same month, South Africa, Bangladesh, Bolivia, Comoros and Djibouti, according to Karim Khan, the chief prosecutor of the International Criminal Court, expressed the view that an investigation of “the situation in the state of Palestine” should take place. Khan accordingly declared that an investigation into the events in the Gaza Strip and the occupied West Bank from March 2021 was duly expanded to include “the escalation of hostilities and violence since the attacks that took place on October, 2023.” Despite Israel not being a member of the ICC, the prosecutor called “upon all relevant actors to provide full cooperation with my office.”
South Africa has decided to test the validity of Israel’s methods of war in Gaza through the offices of the International Court of Justice, a body of feeble, if acceptable dignity. On December 29, Pretoria filed an application regarding, in the words of the relevant press release, “alleged violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” The application makes the claim that “acts and omissions” by the Israeli government “are genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group”.
It further claims 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, is in violation of the obligations under the Genocide Convention.”
The application instituting proceedings gives more detail to the South African case, noting such alleged genocidal acts as “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.”
South Africa requests a number of provisional measures in its ICJ application, namely, that Israel immediately suspend military operations in and against Gaza; ensure all its military or irregular units under the state’s control “take no further steps in furtherance of the military operations” aforementioned; “desist from the commission of any and all actions within the scope of Article II” of the Genocide Convention (killing, causing serious bodily or mental harm to the members of the group); intentional infliction upon the group of conditions “calculated to bring about its physical destruction in whole or in part”; and “imposing measures intended to prevent births within the group”.
The response from Israel was hardly one of chastened reflection. Its government rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry scorned the South African claim as lacking any “factual and judicial basis and is a despicable and cheap exploitation of the court.” Pretoria was, in effect, “collaborating with a terror group that calls for the destruction of Israel.”
In some ways, South Africa, with its historically thick layering of scar tissue regarding racial hatred, segregation, policing and administrative detention may be better suited than most in understanding the zealots prosecuting the war in Gaza. Far from proving a blood libel, the case may turn out to be something of a bloody revelation.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com. Read other articles by Binoy.South Africa’s genocide case against Israel, explained
Friday’s action reflects South Africa’s solidarity with the Palestinian cause — and its domestic and foreign interests
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The South African government has taken its firmest stance yet against Israel’s war in Gaza, accusing Israel of genocide against Palestinians in a new case in the International Court of Justice (ICJ) at the Hague.
South Africa initiated the case Friday and requested the ICJ order Israel to stop its onslaught in Gaza immediately. While South Africa’s filing may not affect the outcome of the war in any meaningful way, it does draw on longstanding ties between Black South Africans’ liberation struggle and that of the Palestinian people. It also signals the country’s desire to challenge the US-dominated international order that it sees as unfair to African and non-Western interests.
The 84-page application states that “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,” in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Israel quickly rejected the filing “with disgust,” calling it a “blood libel” — a reference to a false accusation that originated in the Middle Ages that Jewish people would murder Christians and use their blood in rituals, and which was used as a justification for oppression of Jewish communities.
The ICJ is different from the International Criminal Court, which is already investigating alleged war crimes committed by both Israel and Hamas stemming from the October 7 attacks. The ICC is set up to investigate and prosecute individuals at the highest levels who are accused of planning and directing war crimes, while national courts are typically the venue to prosecute perpetrators of low-level war crimes — individual fighters who may have carried out war crimes directed by those high-level commanders or leaders.
Under the Genocide Convention, any country can bring charges of genocide against another at the ICJ, regardless of whether they are party to the conflict; in 2019, Gambia brought a genocide case against Myanmar due to its crimes against the Rohingya ethnic group, and the ICJ upheld the legality of the case in 2022. South Africa’s petition represents one of the few avenues for an international body to make a clear statement about Israel’s actions in Gaza.
Israel continues to bombard Gaza, the Palestinian enclave ruled by Hamas, following that group’s attack on Israel on October 7. During that attack, Hamas and fighters from Palestine Islamic Jihad killed 1,200 people and took 240 hostages, many of whom have been released. Since then, Israel has killed more than 21,000 people including more than 8,500 children, according to Gaza’s media office; internally displaced 1.9 million; and damaged or destroyed nearly 70 percent of the homes and 50 percent of the buildings in the region.
The Palestinian foreign ministry, based in the West Bank, lauded South Africa’s action and called on the court to “immediately take action to protect Palestinian people and call on Israel, the occupying power, to halt its onslaught against the Palestinian people.”
Accusations of genocide are difficult to prove because they include not just actions but intention. Throughout the conflict, pro-Palestinian activists, scholars on the subject, and politicians have accused Israel of genocide — an accusation that’s particularly fraught since Israel was founded in the wake of the Holocaust. But there have been successful prosecutions of genocide in the 20th century, in Rwanda and Bosnia, via international criminal tribunals set up through the UN.
South Africa has multiple reasons to file the accusation against Israel
South Africa’s ruling African National Congress (ANC) has deep ties to the Palestine Liberation Organization (PLO), stretching back to its former leader and South Africa’s first post-apartheid president, Nelson Mandela. The ANC aligned itself with the PLO and other revolutionary causes while Mandela was in prison; after his release, Mandela was a vocal supporter of the PLO and its leader Yasser Arafat, saying in 1990 that “we identify with the PLO because, just like ourselves, they are fighting for the right of self-determination.”
Decades later, that sentiment remains in the South African government, and for many ordinary South Africans who see their struggle against colonialism and apartheid in the Palestinians’ own plight and decades-long struggle for self-determination. That’s particularly salient in an election year for South Africa as the ANC and its leader, President Cyril Ramaphosa, struggle to stay the dominant power there.
“There’s huge historical precedent for it, both in a domestic political context and in a moral [and] legalistic context,” Michael Walsh, visiting scholar at the University of California Berkeley, told Vox. “South Africa has been engaged on the Palestinian issue since really the end of apartheid and the founding of the state. It’s been a prominent issue in South African politics and among South African leaders.”
The ICJ referral is not the first step South Africa has taken to hold Israel to account for its attacks on Gaza; Ramaphosa has repeatedly condemned Israel’s actions against Palestinians; since the October 7 attacks and subsequent Israeli campaign in Gaza, the government has repeatedly condemned Israel in the international press. The parliament also voted to close the Israeli embassy and withdrew its diplomatic staff from Israel, while the foreign ministry delivered a referral to the International Criminal Court to investigate alleged crimes, including the crime of genocide, in the Palestinian territories in November.
Though South African solidarity with the Palestinian cause is a crucial part of its condemnation of Israel, there are domestic and foreign policy reasons to try to hold Israel to account on an international stage — one of those reasons being “legitimacy in the international system and being perceived as a major player,” Walsh said. “I think there’s a perception that South Africa has really fallen in its stature on the international stage.”
That perception is at least partly due to South Africa’s refusal to arrest Sudanese dictator Omar al-Bashir in 2015, when the ousted leader traveled to the country for a meeting of the African Union. The ICC had issued warrants for Bashir’s arrest on charges of war crimes and crimes against humanity in 2009, and on genocide charges in 2010; South Africa, as a party to the ICC, was obligated to arrest Bashir and turn him over to the court for prosecution. However, the ICC effectively failed to punish the country by refusing to refer South Africa to the UN Security Council or the ICC’s Assembly of States Parties, perhaps out of concern that South Africa would withdraw from the ICC.
South Africa avoided a similar conundrum last year when Russian President Vladimir Putin, who is also subject to an ICC arrest warrant for his invasion of Ukraine in 2022, opted to attend a summit via video instead of in person this summer.
“There’s been lots of pressure put on South Africa over the last couple of years to deal with individuals who have been accused of war crimes but who are clearly not on the Western side of the international political divide,” Walsh said. With the ICJ case, South Africa is able to assert itself as a player on the international stage, express longstanding solidarity with the Palestinian cause, address domestic political sentiments, and point out the imbalance of international bodies when it comes to prosecuting war crimes.
South Africa has a “deep-seated belief that Israel is committing war crimes, and that there’s an important need to hold accountable any state that commits war crimes,” Walsh said. “And I think that they see a tremendous hypocrisy in how war crimes are prosecuted around the world. And so they’ve made this a cause.”
The ICJ has limited power to enforce its rulings
The ICJ represents one of the only possibilities to bring the conflict before an international body, Iva Vukušić, assistant professor in international history at Utrecht University, told the Guardian, as “states, globally, don’t have a lot of places to ‘go to’ in these kinds of situations, especially with the [UN] Security Council being as polarized and dysfunctional.” But it has little ability to put consequences behind its decisions.
The ICC can prosecute genocide, crimes against humanity, war crimes, and the crime of aggression — for example, Russia’s invasion of Ukraine. And it has the ability to hold people in detention in the Hague until they can serve out their sentence in one of the countries that have agreed to carry out those sentences. The ICJ can render judgments on these, too, but against states and not individuals.
But the mechanism for carrying out that ruling is the ruling itself, which does not mean that a state will comply — for example, the ICJ ruled that Russia should immediately end its hostilities in Ukraine; that war is getting ready to enter its second year. The UN Security Council theoretically enforces consequences should a party to the case fail to comply, but, as Vukušić noted, that body is highly politicized, especially among the five permanent members with veto power.
It could be months or even years before the ICJ delivers a ruling in the case. But in the immediate term, South Africa is calling for an interim order for a ceasefire from the court, which could be delivered in the coming weeks, the Associated Press reports.
Euro-Med Monitor documented nine separate cases in which Israeli troops executed Palestinians—including numerous women and children—during the ongoing invasion of Gaza.
Fatima and Ahmed al-Khaldi were killed, and their 4-year-old son Adam (right) was severely wounded, during a December 21, 2023 Israeli raid on their Gaza City home.
(Photo: family photo)
BRETT WILKINS
Dec 26, 2023
A prominent European human rights group on Monday submitted a report to the International Criminal Court and United Nations special rapporteurs documenting "dozens of cases of field executions carried out by the Israeli army in the Gaza Strip."
Euro-Mediterranean Human Rights Monitor, a Geneva-based nonprofit, requested the ICC and U.N. immediately investigate "the widespread killing operations carried out by Israeli forces targeting Palestinian civilians, especially the field executions and physical liquidations in the Gaza Strip."
In addition to ICC Prosecutor Karim Khan, Euro-Med Monitor sent copies of its preliminary findings to Maurice Tydball Benz, the U.N. special rapporteur on extrajudicial or arbitrary executions; Francesca Albanese, the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967; and Navanethem Pillay, head of the Investigative Committee on the Occupied Palestinian Territory.
"Nearly 10 days after the Israeli army began its ground attack in the Gaza Strip on October 27, the Israeli army carried out dozens of executions and direct physical liquidations against civilians as part of its all-out military campaign that started on October 7 in retaliation for the armed attack that Palestinian factions carried out in Israeli settlements surrounding the Gaza Strip," Euro-Med Monitor said in a statement.
The group's report lists nine separate instances in which it says Israel Defense Forces (IDF) troops executed Palestinian civilians in Gaza. Victims include multiple elderly couples shot and left to bleed to death after being forced from their homes in Gaza City last week; a mentally ill man shot in his home in the Jabalia refugee camp; six members of the al-Khaldi family shot dead during an Israeli raid on their home; and nine forcibly displaced civilians including women and children who were massacred while seeking shelter in the Shadia Abu Ghazala School near Jabalia on December 13.
"The Israeli soldiers came in and opened fire," one unidentified witness said of the school attack. "They took all men, then entered classrooms and opened fire on a woman and all the children with her," including "newborn children."
"The Israeli soldiers executed those innocent families point-blank," she added.
In the case of the al-Khaldi family, surviving relative Fahed al-Khaldi toldMiddle East Eye that after an Israeli airstrike on a neighboring home killed several people and wounded Fatima al-Khaldi, his pregnant sister-in-law, IDF ground troops "lobbed two grenades into the house" where about 30 people were sheltering "without regard for women, children, or the elderly."
"They then opened fire directly at people and in an indiscriminate manner, without differentiating between young and old," he said.
Five people were killed instantly. Al-Khaldi said Israeli troops ordered the survivors out of the home, where they were stripped of their clothes.
"The soldiers then returned to the room and executed all the injured," he said. Fatima al-Khaldi was shot and left to bleed to death.
Last week, Euro-Med Monitor reported that more than 1,000 Palestinian elders have been killed by Israeli forces in Gaza, including dozens of people over the age of 60 who were executed.
"These incidents included soldiers shooting elderly people immediately after ordering them to evacuate their homes, and in some cases, executing them just moments after their release from hours or days of arbitrary detention," the group said.
Euro-Med Monitor said Monday that:
More than 28,000 Palestinians have been killed since the start of the Israeli genocide campaign in the Gaza Strip, a number that includes those who remain trapped under the rubble of destroyed buildings and are now presumed dead. Women and children make up 70% of the recorded victims. Thus, Palestinian deaths constitute the highest rate of civilian casualties worldwide in the 21st century.
The Gaza Health Ministry said Tuesday that the Palestinian death toll from 81 days of near-relentless Israeli attacks was approaching 21,000, with nearly 55,000 others wounded and thousands more missing. More than 1.9 million of the besieged enclave's 2.3 million people have also been forcibly displaced and face increased risk of starvation, hypothermia, and disease.
The submission of Euro-Med Monitor's report came nearly a week after the group Democracy for the Arab World Now published a list of 40 Israeli military commanders it called "prime suspects" for ICC war crimes investigations.
Topping the list is Israeli Defense Minister Yoav Gallant, who on October 9 ordered a complete siege on Gaza City, cutting off the water, fuel, power, and humanitarian aid to millions of Palestinians.
Like numerous other Israeli leaders, Gallant attempted to justify Israel's actions with what one commentator called "blatantly genocidal" language calling Palestinians "human animals."
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