South Africa Charges Israel with Genocide Before UN International Court of Justice
The UN
International Court of Justice announced on December 29, 2023 that
"South Africa today filed an application instituting proceedings
against Israel before the International Court of Justice (ICJ), the
principal judicial organ of the United Nations, concerning alleged
violations by Israel of its obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide (the Genocide
Convention) in relation to Palestinians in the Gaza Strip."
The ICJ also announced that public hearings will be held January 11 and 12 at The Hague to address South Africa’s request for immediate provisional measures. The press release states, “In its Request, South Africa asks the Court to indicate provisional measures in order to ‘protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention’ and ‘to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide’” If the ICJ finds in favour of the request, it could call for an immediate halt to the Israeli genocide and other measures to prevent genocide. The case is an opportunity for other states to join in providing briefs supporting the need for punishment and prevention. Human rights organizers in South Africa are also calling on people worldwide to demand their governments support South Africa’s charges of genocide.
According to the Application, "acts and omissions by Israel [...] are genocidal in character, as they are committed with the requisite specific intent [...] to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group" and 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 its obligations under the Genocide Convention."
It further states that "Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide" and that "Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza."
South Africa's application is a text of 84 pages, with 151 specific articles addressing in great detail the genocidal acts committed by Israel in violation of the Genocide Convention on which the ICJ is called to adjudicate, introduced in article 18 with the statement that "Since 7 October 2023, Israel has engaged in a large-scale military assault by land, air and sea, on the Gaza Strip ('Gaza'), a narrow strip of land approximately of 365 square kilometres -- one of the most densely populated places in the world. Gaza -- home to approximately 2.3 million people, almost half of them children -- has been subjected by Israel to what has been described as one of the 'heaviest conventional bombing campaigns' in the history of modern warfare."
In setting the background to current events, the application references numerous previous UN reports from 2001, 2008, 2009, 2015, 2020, 2021 and 2023, examining a broad litany of brutal violence on the part of the Israeli occupation against the Palestinians, each of which concluded Israel was in violation of international law.
Section C, starting at Article 43, addresses the acts in which Israel has engaged that are genocidal in character, acts that are ongoing, including 1) Killing Palestinians in Gaza; 2) Causing serious bodily and mental harm to Palestinians in Gaza; 3) Mass expulsion from homes and displacement of Palestinians in Gaza; 4) Deprivation of access to adequate food and water to Palestinians in Gaza; 5) Deprivation of access to adequate shelter, clothes, hygiene and sanitation to Palestinians in Gaza; 6) Deprivation of adequate medical assistance to Palestinians in Gaza; 7) Destruction of Palestinian life in Gaza; 8) Imposing measures intended to prevent Palestinian births.
Section D entitled "Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials and Others," required for a conviction under the Genocide Convention, documents statements that demonstrate the genocidal intent of Israeli State officials, including from Prime Minister Benjamin Netanyahu, President of Israel Isaac Herzog, Israeli Minister of Defence Yoav Gallant, Israeli Minister for National Security, Itamar Ben-Gvir, Minister of Energy and Infrastructure Israel Katz, Minister of Finance Bezalel Smotrich, Minister of Heritage Amichai Eliyahu, Minister of Agriculture Avi Dichter and Deputy Speaker of the Knesset and Member of the Foreign Affairs and Security Committee Nissim Vaturi. Included in the examples that "constitute clear direct and public incitement to genocide which has gone unchecked and unpunished" are similar statements made by the Israeli Army Coordinator of Government Activities in the Territories, Major General Ghassan Alian; former Head of the Israeli National Security Council and adviser to the Defence Minister, army reservist Major General Giora Eiland; and a "motivational speech" given by army reservist Ezra Yachin, veteran of the Deir Yassin massacre during the 1948 Nakba documenting genocidal intent; remarks by Lieutenant Colonel Gilad Kinan, Head of the Israeli army's Air Operations Group; and remarks by Yair Ben David, Commander of the 2908th Battalion of the Israeli army.
Section E states that the public statements cited in Section C demonstrate Israel's genocidal intent, an assessment that "is shared by a significant number of United Nations experts who have repeatedly warned since at least mid-October 2023 that the Palestinian people are at grave risk of genocide by Israel. Eight different such reports issued by UN Experts from October through December 2023 are cited as are the opinions of many international experts and bodies.
South
Africa,
speaking on its own behalf, then cites its own claim that Israel is in
violation of the Genocide Convention, citing nine specific claims from
failing to prevent genocide, to committing, conspiring to commit,
direct public incitement to commit, attempting to commit, complicity in
genocide, failing to punish genocide, failing to enact the necessary
legislation to give effect to the provisions of the Genocide convention
and failing to allow and/or impeding the investigation by competent
international bodies of genocidal acts committed against Palestinians
in Gaza -- each of which constitutes a criminal offence under the
convention.
The relief sought by the claim includes: a finding that Israel has breached and continues to breach its obligations under the Genocide Convention; must cease forthwith any acts and measures in breach of those obligations [...]; must ensure persons violating the Genocide Convention are punished; must collect and conserve evidence of genocidal acts committed against Palestinians in Gaza; must perform obligations of reparation in the interest of Palestinian victims and provide for the reconstruction of what it has destroyed in Gaza; and must offer assurances and guarantees of non-repetition of violations of the convention.
South Africa requests that the court address this request as a matter of extreme urgency and states: "Provisional measures are necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity."
Further, at Article 120, South Africa's case states: "The court is empowered to indicate provisional measures 'if the provisions relied on by the Applicant appear prima facie to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case."
Article 123 states that in order for the
ICJ to determine whether it has prima facie
jurisdiction to indicate provisional measures, the matters complained
of must themselves be prima facie "capable of
falling within the provisions of [the Convention]" such that "the
dispute is one which the Court has jurisdiction ratione
materiae to entertain." The case law of the ICJ establishes
that a dispute is "a disagreement on a point of law or fact, a conflict
of legal views or of interests" between parties. In order for a dispute
to exist "it must be shown that the claim of one party is positively
opposed by the other." The two sides must "hold clearly opposite views
concerning the question of the performance or non-performance of
certain international obligations." The existence of a dispute is "a
matter of objective determination by the Court; it is a matter of
substance, and not a question of form or procedure." In other words,
Israel's objection that the claim made by South Africa is unfounded, is
itself sufficient evidence of a prima facie case
for the jurisdiction of the ICJ to be established.
The Genocide Convention, ratified after World War II and the Nazi Holocaust of the Jews, makes it a crime to attempt to destroy a people in whole or in part. The ICJ is the principal judicial organ of the United Nations. It is located in The Hague in the Netherlands.
Israeli Holocaust
scholar Raz Segal on October 13, 2023, identified Israel's campaign in
Gaza as constituting genocide based on public pronouncements of Israeli
political and military leaders which made their intent to destroy
Palestinians as a people clear.
The Organization of Islamic Cooperation (OIC), an alliance of 56 countries in which Islam plays a significant role, issued a statement on December 31, 2023 supporting South Africa for taking its case against Israel to the International Court of Justice. The statement reads: "The Organization of Islamic Cooperation (OIC) has welcomed the suit filed by the Republic of South Africa at the International Court of Justice for the crime of genocide against the Palestinian people committed by Israel, the occupying power.
"The OIC has affirmed that the indiscriminate targeting by Israel, the occupying power, of the civilian population and the thousands of Palestinians, mostly women and children, killed, injured, forcibly displaced, and denied basic necessities and humanitarian assistance and the destruction of houses, health, educational and religious institutions, in their totality constitute mass genocide.
"The OIC called upon the Court to respond expeditiously and take urgent measures to stop this mass genocide being perpetrated by the Israeli defense forces in the Occupied Palestinian Territories."
Call Made for Other Countries to File Declarations of Intervention at International Court of Justice
The U.S.-based Black Alliance for Peace announced a newly formed coalition is urging
other countries to file Declarations of Intervention at the
International Court of Justice in support of South Africa's genocide
case against Israel. The International Coalition to Stop Genocide in
Palestine convened around the urgent need for nations to invoke the
Genocide Convention as a way to end the State of Israel's devastating
bombing campaign and additional war crimes being committed in the
Occupied Palestinian Territories.
The
coalition includes Progressive International, the International
Association of Democratic Lawyers, Samidoun Palestinian Prisoner
Solidarity Network, the Black Alliance for Peace, Democracy for the
Arab World Now, Palestinian Assembly for Liberation, Popular
Resistance, CODEPINK, the U.S. National Lawyers Guild and numerous
other groups. A statement reads that it "strongly supports
the call issued on January 2 by the Palestinian Anti-Apartheid
Coordinating Committee (PAACC) urging governments to support South
Africa's complaint with Declarations of Intervention, which can be
filed before or after the hearing, scheduled to take place on January
11 and 12, 2024."
This article was published in
Volume 54 Number 2 - January 5, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54025.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca