Israel's military operations against Hamas in Gaza have resulted in an extraordinary number of civilian casualties by any standard, especially the child murder and the displacement of hundreds of thousands of people, many of whose homes have been totally destroyed. Even the Biden administration, Israel’s staunchest ally in this war since Hamas’ attack on Israel on October 7, has at times referred to “indiscriminate bombing” and expressed dissatisfaction with Israel's efforts to avoid civilian casualties and respect international humanitarian law.
South Africa filed a case at the International Court of Justice, bringing charges of “genocide” against Israel, representing a significant escalation in accusations about the inhumanity with which Israel is waging the war in Gaza. This week, South African lawyers presented his claims, while Israel attempted refute the accusations, raising questions about the foundations of international law and its application in times of war.
According to the United Nations convention on genocide, genocide is definite as the intention to destroy, in whole or in part, a national, ethnic, racial or religious group, not only by murder but also by other measures such as “deliberately inflicting on the group conditions of life calculated to bring about its entire physical destruction.” ”. or in part.”
Recently, the ICJ has been active in issuing emergency injunctions, called provisional measures, in situations where the parties have invoked the genocide convention, most recently by Gambia vs. Myanmar for their actions against the Rohingya people. That means The State would have to stop certain actions. until the court makes its final decision. Ultimately, these orders would only be formally carried out by the UN Security Council. But the mandates could influence individual states to take their own actions, such as sanctions against a non-compliant nation.
South Africa can bring this case because the genocide convention allows any state that is a party to the convention to appear before the ICJ, regardless of whether it is particularly affected (obviously South Africa is not a direct party to the Gaza conflict). .
South Africa's argument is supported by numerous statements by Israel's leaders. These include Prime Minister Benjamin Netanyahu, President Isaac Herzog, Defense Minister Yoav Gallant and many other elected politicians, who explicitly call for the destruction or total elimination of Gaza. Often these statements are worded or surrounded by language that allows for some denial, referring (in clear contradiction) to the need to save civilian lives. In its oral argument before the court on Thursday, South Africa also presented videos of Israel Defense Forces soldiers in the field chanting some of the leaders' genocidal slogans and celebrating what appeared to be acts of indiscriminate destruction.
An additional part of the South Africa case addresses the famine and disease resulting from the siege of Gaza by Israel and obstruction or alteration of food, provision of drinking water, electricity and medical supplies and facilities. Luis Moreno Ocampo, founding chief prosecutor of the International Criminal Court, which is independent of the ICJ, said in an interview that this in itself constitutes a plausible genocide.
It is not surprising that Israel has reacted with anger to accusations of genocide, a category of crime that was invented in the wake of the Holocaust to give specific legal meaning to the ultimate form of atrocity: the complete extermination of a people, or the attempt to do so. Israel maintains that the regrettable civilian losses – from dealing with a ruthless enemy that uses even children as human shields and from embedding fighters in schools and hospitals – are not comparable to genocide.
But the genocide convention is primarily concerned with prevention, and therefore must be applied long before a situation transforms into total and possibly unstoppable annihilation. In fact, one of the fundamental objectives of provisional measures in international law is to prevent irreparable damage. The convention states in its preamble that “in all periods of history, genocide has caused great losses to humanity”; This makes it clear that the Holocaust is not the only form or model that a genocide can take.
In its oral argument on Friday, Israel flatly denied that it had ever deviated from the letter of humanitarian law in the Gaza conflict. In fact, some of its representatives suggested that the state could have gone beyond what was required in terms of humanitarian precautions, such as warning civilians before bombings.
Noticeably absent, however, was any direct rebuttal of the specific events identified by South Africa in its allegations, such as the summary executions of entire families, including children, and the shooting of fleeing civilians. If unrebutted, these incidents, along with genocidal statements by Israeli political and military leaders, as well as troops on the ground, provide more than sufficient plausibility to the charge of genocide, which is the standard of proof that the court required to issue an order for provisional measures. .
That said, Israel's initial advice, Such Becker, He strongly highlighted to the court that one of South Africa's requests – an immediate cessation of hostilities – ignores the imminent and ongoing threat from Hamas, which Israel has a legitimate interest in continuing to counter with military means.
It may take one or two years for the court to decide the entire case. But for credibility and to have greater chances of compliance, the court should order provisional measures as a kind of suspended sentence, delaying their binding effect for a reasonable period of time.
This would give Israel the opportunity to reduce its operations; unambiguously retreat from the genocidal declarations of their leaders; and take other effective measures to stop the genocidal cancer that has begun to grow within a necessary military operation against an enemy that has terrorized Palestinians and Israeli Jews alike.
Rob Howse is a professor of international law at New York University School of Law. A former Canadian diplomat, he worked in the Policy Planning Secretariat of the Canadian Ministry of Foreign Affairs and in its delegation to the United Nations General Assembly. In 1994, he participated with South African academics and politicians in a drafting committee that produced the design of Truth and Reconciliation South Africa. He has also provided advice to the South African government, free of charge, on unrelated matters.
