Attempt to Stop Israeli Genocide at International Court of Justice
Hearings Begin on South Africa's Request for Injunction Against Israel
Beginning
on January 11, the International Court of Justice (ICJ) in
The Hague, Netherlands is holding hearings to consider South
Africa's
request for an injunction to stop Israel's war crimes in Gaza,
as the
first stage to stop the genocide and bring Israel to account
under the
Genocide
Convention. South Africa will make its case for "provisional
measures"
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."
An ICJ order for provisional measures would mean an emergency suspension of Israel's military campaign in Gaza. "For provisional measures the court only has to decide if at first glance, or prima facie, it would have jurisdiction and the acts complained of could fall within the scope of the genocide treaty," the Associated Press explains. "Any measures it decides would not necessarily be those requested by the complainant."
Public sittings of the ICJ can be observed either in-person at the Peace Palace in The Hague or online. In this case the hearings regarding South Africa's request for provisional measures to stop Israel's war on Gaza will be livestreamed from 4:00-6:00 am EDT/1:00-3:00 am PDT on the ICJ's website and on UN Web TV.
The first day of hearings will be for South Africa to make its case for provisional measures, while Israel will either make its case on January 12 or next week. Following the presentations by each side, the ICJ ruling on provisional measures is expected to come within weeks. Legal experts say the overall case to hold Israel to account for its genocidal crimes in Gaza may take years to reach a conclusion.
Regardless of whether the Genocide Convention can be successfully applied to rein in Israel, the Palestinian resistance and people and the peoples of the world are clear that the more than 20,000 people killed by Israel in Gaza since October 7, 2023 and all its other atrocities are crimes for which it must be held to account, in the service of liberating the Palestinian people and affirming their right to be. Israel must be stopped.
The ICJ handbook states that the court has "expressly stated that Orders indicating provisional measures have binding force." Furthermore, the ICJ's website states, "Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter provides that '[e]ach Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.'
"Judgments are final and without appeal. If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the Court for an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment."
Part of what has led to the current situation in Gaza, and of great concern to the Palestinian people and the peoples of the world who are fighting to stop Israel, is Israel's repeated defiance of UN rulings and resolutions aimed at reining in its Zionist terrorism against the Palestinians. U.S. legal scholar Marjorie Cohn, a former president of the National Lawyers Guild, writes, "Article 94 of the UN Charter says that all parties to a dispute must comply with the decisions of the ICJ and if a party fails to do so, the other party may go to the UN Security Council for the enforcement of the decision."
Interventions by Third States and Obligations of Signatories
Regarding who is permitted to take part in proceedings of the IJC, the court's website explains, "Only States are eligible to appear before the Court in contentious cases. At present, this essentially means the 193 Member States of the United Nations."
Articles 62 and 63 of the ICJ makes provision for third states to a dispute to submit interventions:
"Article 62
"l. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.
"2. It shall be for the Court to decide upon this request.
"Article 63
"1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.
"2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it."
Furthermore, Cohn points out that "The obligations in the Genocide Convention are erga omnes partes, that is, obligations owed by a state towards all the states parties to the Convention. The ICJ has stated, 'In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'etre of the Convention.'"
This also means that in the event of an ICJ order of provisional measures to block Israel's war on Gaza, and if Israel is ultimately found to have breached the Genocide Convention, state parties to the convention are also obligated to take measures to see that such rulings are enforced. This raises the obvious point of the need to also hold the U.S. to account for its role to fully back Israel, politically, financially and militarily. Countries such as Canada that are also complicit in the genocide by nearly unconditional support of Israel are also implicated. Both the U.S. and Canada are signatories to the Genocide Convention.
Concerns Expressed by Israel
Cohn recently explained some of Israel's concerns about being brought before the International Court of Justice (ICJ) under the Genocide Convention. She points out:
"[...]
Israel and its chief patron, the United States, understand the magnitude of South Africa's ICJ application, and they are livid. Israel usually thumbs its nose at international institutions, but it is taking South Africa's case seriously. In 2021, when the International Criminal Court launched an investigation into Israel's alleged war crimes in Gaza, Israel firmly rejected the legitimacy of the probe.
"Israel generally doesn't participate in such proceedings," Prof. Eliav Lieblich, an international law expert at Tel Aviv University, told Haaretz. "But this isn't a UN inquiry commission or the International Criminal Court in the Hague, whose authority Israel rejects. It's the International Court of Justice, which derives its powers from a treaty Israel joined, so it can't reject it on the usual grounds of lack of authority. It's also a body with international prestige."
A January 4 cable from the Israeli Foreign Ministry says that Israel's "strategic goal" is that the ICJ reject South Africa's request for an injunction to suspend Israel's military action in Gaza, refuse to find that Israel is committing genocide in Gaza and rule that Israel is complying with international law.
"A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications," the cable states. "We ask for an immediate and unequivocal public statement along the following lines: To publicly and clearly state that YOUR COUNTRY rejects the outragest [sic], absurd and baseless allegations made against Israel."
The cable instructs Israeli embassies to urge diplomats and politicians at the highest levels "to publicly acknowledge that Israel is working [together with international actors] to increase the humanitarian aid to Gaza, as well as to minimize damage to civilians, while acting in self defense after the horrible October 7th attack by a genocidal terrorist organization."
"The State of Israel will appear before the ICJ at The Hague to dispel South Africa's absurd blood libel," Prime Minister Benjamin Netanyahu spokesperson Eylon Levy declared. South Africa's application is "without legal merit and constitutes a base exploitation and contempt of court," he said.
Israel is pulling out all the stops, including disingenuous accusations of "blood libel," an anti-Semitic trope that erroneously accuses Jews of the ritual sacrifice of Christian children.
This article was published in
Volume 54
Number 3 - January 10, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54039.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca