ICJ could order Israel to immediately suspend its military operation against Gaza

MARJORIE COHN

For almost three months, Israel has enjoyed virtual impunity for its heinous crimes against the Palestinian people. That changed on December 29, when South Africa, a State Party to the Genocide Convention, presented an 84-page application to the International Court of Justice (ICJ or World Court) in which he alleged that Israel is committing genocide in Gaza.

South Africa's well-documented application alleges that "Israel's acts and omissions... are of a genocidal character, as they are committed with the requisite specific intent... to destroy the Palestinians of Gaza as part of the broader Palestinian national, racial and ethnic 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 the Palestinians of Gaza, violates its obligations under of the Genocide Convention. ”

Israel is mounting an entire campaign to prevent the ICJ from declaring that it is committing genocide in Gaza. On January 4, the Israeli Foreign Ministry instructed its embassies to pressure politicians and diplomats in their host countries to make statements opposing South Africa's case at the ICJ.

In its request, South Africa cited eight allegations in support of its claim that Israel is carrying out genocide in Gaza. Among them are:

(1) Killing of Palestinians in Gaza, including a large proportion of women and children (approximately 70 percent) of the more than 21.110 fatalities and some appear to have been subject to summary execution;

(2) Causing serious physical and psychological harm to Palestinians in Gaza, including mutilation, psychological trauma, and inhuman and degrading treatment;

(3) Cause the forced evacuation and displacement of approximately 85% of Palestinians from Gaza, including children, the elderly, the sick and injured. Israel is also causing massive destruction of Palestinian homes, villages, cities, refugee camps and entire areas, preventing the return of a significant proportion of the Palestinian people to their homes;

(4) Cause widespread hunger, starvation and dehydration to besieged Palestinians in Gaza, preventing sufficient humanitarian assistance, cutting off supplies of food, water, fuel and electricity, and destroying bakeries, mills, agricultural land and other means of production and livelihood ;

(5) Failure to provide and restrict the provision of adequate clothing, shelter, hygiene and sanitation to Palestinians in Gaza, including 1,9 million internally displaced people. This has forced them to live in dangerous situations of squalor, along with routine attacks and destruction of places of refuge and killing and wounding of people taking refuge, including women, children, the elderly and the disabled;

(6) Failure to provide or ensure the provision of medical care to Palestinians in Gaza, including medical needs created by other genocidal acts that are causing serious bodily harm. This is happening through direct attacks on Palestinian hospitals, ambulances and other health facilities, the murder of Palestinian doctors, paramedics and nurses (including the most qualified doctors in Gaza), and the destruction and disabling of Gaza's medical system;

(7) Destroy Palestinian life in Gaza, destroying its infrastructure, schools, universities, courts, public buildings, public registries, libraries, shops, churches, mosques, roads, public services and other facilities necessary to sustain the lives of Palestinians as cluster. Israel is killing entire families, erasing entire oral histories, and murdering prominent and distinguished members of society;

(8) Impose measures aimed at preventing Palestinian births in Gaza, including through reproductive violence inflicted on Palestinian women, newborns, infants and children.

South Africa cited countless statements by Israeli officials that constitute direct evidence of intent to commit genocide:

“Gaza will never be what it was before. We will eliminate everything,” declared Israeli Defense Minister Yoav Gallant. “If it doesn't take us a day, it will take us a week. It will take weeks or even months, we will reach all the places.”

Avi Dichter, Israel's Minister of Agriculture, declared: “We are now making the Nakba of Gaza a reality,” referring to the 1948 ethnic cleansing of Palestinians to create the State of Israel.

“Now we all have a common goal: to erase the Gaza Strip from the face of the earth,” proclaimed Nissim Vaturi, vice president of the Knesset and member of the Foreign Affairs and Security Committee.

Israel's strategy to defeat South Africa's case at the ICJ

Israel and its main sponsor, the United States, understand the magnitude of South Africa's application to the ICJ, and are livid. Israel often turns a deaf ear to international institutions, but it is taking South Africa's case seriously. In 2021, when the International Criminal Court launched an investigation into alleged war crimes committed by Israel in Gaza, Israel firmly rejected the legitimacy of the investigation.

“Israel generally does not participate in such procedures,” Professor Eliav Lieblich, an international law expert at Tel Aviv University, told Haaretz. “But this is not a UN commission of inquiry or the International Criminal Court in The Hague, whose authority Israel rejects. It is the International Court of Justice, which derives its powers from a treaty to which Israel acceded, so it cannot reject it on the usual grounds of lack of authority. It is also an organization with international prestige.”

A January 4 cable from the Israeli Foreign Ministry says Israel's "strategic objective" is for the ICJ to reject South Africa's request for a court order to suspend Israel's military action in Gaza, refuse to declare 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 and security ramifications,” the cable states. “We ask for an immediate and unequivocal public declaration to the following effect: Declare publicly and clearly that YOUR COUNTRY rejects the most outrageous [sic], absurd and unfounded accusations leveled against Israel.”

The cable instructs Israeli embassies to urge diplomats and politicians at the highest level “to publicly acknowledge that Israel is working [together with international actors] to increase humanitarian aid to Gaza, as well as to minimize harm to the population.” civilian, while acting in self-defense following the horrific October 7 attack by a genocidal terrorist organization.”

“The State of Israel will appear before the ICJ in The Hague to dispel South Africa's absurd blood libel,” declared Prime Minister Benjamin Netanyahu's spokesman, Eylon Levy. South Africa's request “has no legal basis and constitutes vile 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 wrongly accuses Jews of ritually sacrificing Christian children.

“How tragic that the rainbow nation that prides itself on fighting racism fights for anti-Jewish racists,” Levy ironically said. He made the astonishing claim that Israel's military campaign to destroy Hamas in Gaza is designed to prevent the genocide of the Jews.

As the old adage goes, when you're being run out of town, get to the front of the crowd and act like you're leading the parade.

The Biden regime rose to defend its faithful ally Israel. US National Security Council spokesman John Kirby attacked South Africa's application to the ICJ, calling it “meritless, counterproductive and completely lacking any factual basis.” Kirby said: “Israel is not trying to wipe the Palestinian people off the map. Israel is not trying to wipe Gaza off the map. “Israel is trying to defend itself from a genocidal terrorist threat,” echoing the absurd Israeli claim.

Kirby's claim that Israel is trying to prevent a genocide is especially absurd, given the fact that since Hamas killed 1.200 Israelis on October 7, Israeli forces have killed at least 22.100 Gazans, including about 9.100 They are children. At least 57.000 people have been injured and at least 7.000 are missing. An untold number of people are trapped under the rubble.

Provisional measures against Israel may have immediate impact

South Africa requests the ICJ to issue provisional measures (interim injunction) to “protect from further, serious and irreparable harm the rights of the Palestinian people under the Genocide Convention.” South Africa also asks the court “to ensure Israel's compliance with its obligations under the Genocide Convention not to commit genocide and to prevent and punish genocide.”

The interim measures requested by South Africa include ordering Israel to “immediately suspend its military operations in and against Gaza” and to cease and desist from killing and causing serious physical or mental harm to Palestinians, from inflicting living conditions on them designed to destroy them totally or partially, and to impose measures to prevent Palestinian births. South Africa wants the ICJ to order Israel to stop forcibly expelling and displacing Palestinians and depriving them of food, water, fuel and medical supplies and assistance.

The ICJ, the judicial arm of the United Nations, is composed of 15 judges elected for a nine-year term by the General Assembly and the UN Security Council. It is not a criminal court like the International Criminal Court, but instead resolves disputes between countries.

If one party to the Genocide Convention believes that another has failed to fulfill its obligations, it can take that country to the ICJ to determine its responsibility. This was done in the case of Bosnia v. Serbia, in which the Court found that Serbia had failed to fulfill its obligations to prevent and punish genocide under the Convention.

The obligations of the Genocide Convention are erga omnes parts, that is, obligations of a State towards all States party to the Convention. The ICJ has declared: “In a convention of this type, the contracting States have no interests of their own; They only have, each and every one, a common interest, namely, the realization of those high goals that are the raison d'être of the Convention.”

Article 94 of the United Nations Charter establishes that all parties to a dispute must abide by the decisions of the ICJ and, if one of them does not do so, the other can go to the UN Security Council to have the decision carried out. decision.

A case before the ICJ can last several years from start to finish (it took almost 15 years from when Bosnia first brought its case against Serbia in 1993 to the issuance of the final ruling on the merits in 2007). However, one case can have an immediate impact. Bringing a case to the ICJ sends a strong message to Israel that the international community will not tolerate its actions and seeks to hold it accountable.

Provisional measures can be issued quickly. For example, the ICJ ordered action 19 days after the Bosnian case was initiated. Provisional measures are binding on the party against whom they are ordered, and their compliance can be monitored by both the ICJ and the Security Council.

Judgments on the merits issued by the ICJ in disputes between parties are binding on the parties involved. Article 94 of the United Nations Charter states that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.” The court's rulings are final; there is no appeal.

The public hearings on the South African request for provisional measures will take place on 11 and 12 January at the ICJ, located in the Peace Palace in The Hague (Netherlands). The hearings will be broadcast live from 10 to 12 am (Hague time) on the court website and in A Web TV. The court could order provisional measures within a week after the hearings.

Other States Parties to the Genocide Convention can join the case of South Africa

Other States parties to the Genocide Convention may request permission to intervene in the case brought by South Africa or file their own claims against Israel before the ICJ. South Africa's request identifies several countries that have referred to Israel's genocide in Gaza. Among them are Algeria, Bolivia, Brazil, Colombia, Cuba, Iran, Palestine, Türkiye, Venezuela, Bangladesh, Egypt, Honduras, Iraq, Jordan, Libya, Malaysia, Namibia, Pakistan and Syria.

On January 5, Quds News Network tweeted: “Jordanian Foreign Minister Ayman Safadi announces that his country supports South Africa's genocide case against Israel at the ICJ.” He added that the Jordanian government is working on a legal file to follow up on the case. Turkey, Malaysia and the Organization of Islamic Cooperation (OIC) have announced that they also support the case.”

The newly formed International Coalition to Stop Genocide in Palestine, backed by more than 600 groups from around the world, has come together to urge States Parties to invoke the Genocide Convention.

The coalition maintains that “intervention statements in support of South Africa's invocation of the Genocide Convention against Israel will increase the likelihood that the United Nations will implement a positive finding on the crime of genocide, thereby taking steps to put an end to "All acts of genocide must be put to an end and those responsible for such acts must be held accountable."

During the first week of January, delegations from “grassroots diplomats”, led by CODEPINK, World Beyond War and RootsAction, mounted a campaign across the United States urging nations to file Declarations of Intervention in South Africa's case against Israel at the ICJ. The activists traveled to 12 cities, visiting UN missions, embassies and consulates of Colombia, Pakistan, Bolivia, Bangladesh, the African Union, Ghana, Chile, Ethiopia, Turkey, Belize, Brazil, Denmark, France, Honduras, Ireland, Spain , Greece, Mexico, Italy, Haiti, Belgium, Kuwait, Malaysia and Slovakia.

“This is the rare case in which collective social pressure urging governments to support the South African case can be a turning point for Palestine”said Lamis Deek, a New York-based Palestinian lawyer whose firm convened the Palestinian Liberation Assembly's Commission on Justice, Reparations and Return for War Crimes. “We need more States to come forward with supportive interventions, and we need the Court to feel the watchful eye of the masses to resist what will be extreme political pressure from the United States on the Court.”

Suzanne Adely, president of the National Lawyers Guild, said: “The increasing global isolation of Israel and the United States and its European allies is an indicator that this is a key moment for popular movements to move their governments in the direction of taking these steps and being on the right side of the issue.” history." In fact, since October 7, millions of people around the world have marched, protested and demonstrated in support of Palestinian liberation.

RootsAction and World Beyond War have created a template which organizations and individuals can use to urge other States Parties to the Genocide Convention to submit a Declaration of Intervention in South Africa's genocide case against Israel at the ICJ.

Marjorie Cohn She is an emeritus professor at the Thomas Jefferson School of Law in San Diego (California) and the US representative on the Advisory Council of the Association of American Jurists.

This article is published in collaboration with the American independent media truthout