Author of ‘Modernizing the Role of the International Court of Justice’ (2022)
On 7 October 2023, Hamas perpetrated a genocidal attack against Israel when it brutalized and killed over 1200 people, raped women, and took some 240 hostages. Israel has responded with lethal violence ever since then, displacing some two million people, killing over 22,000 civilians, including thousands of children, destroying practically all homes and buildings in Gaza, and severely curtailing the provision of humanitarian relief to the desolate Palestinians in Gaza. Israel has publicly declared that its attacks on Hamas and the Gazans will continue for months and possibly for another year until, in its view, it has totally destroyed Hamas’s ability ever to endanger it again.
In December, South Africa brought a case against Israel before the International Court of Justice (ICJ) alleging that Israel had engaged in genocidal violence and seeking an order of interim measures of protection while the case is heard over the coming months and years. Israel expressed outrage at being accused of genocide, but sent a team of lawyers to The Hague to defend itself against the charges. South Africa presented its case to the world court on Thursday 11, while Israel responded on Friday 12 January.
The hearings before the ICJ were conducted with a high degree of professionalism on the part of the Court, as well as the two teams of lawyers. The South African lawyers plaintively marshalled evidence and arguments in support of the charge of genocide. The people of Gaza had their day in the court of conscience.
Israel’s lawyers vehemently argued that Israel had been brutally attacked and was entitled to defend itself against the continuing menace of Hamas. Israel was exercising its inherent right of self-defence in accordance with international humanitarian law. Moreover, statements by Israeli leaders that had been adduced by South Africa as showing genocidal intent had not been made by the central authorities conducting the war or had been misinterpreted. Israel also had its day in the court of conscience.
What one saw in action was the International Court of Justice performing the role of the highest forum of conscience in the world. This is a role that has been developing in the Court for some time. The Court has had to deal with cases alleging Genocide in Bosnia, Myanmar (Rohingyas), Ukraine (Russian invasion), and now Gaza. It has also had to deal with cases concerning racism and racial discrimination, and torture. The jurisprudence of the Court has developed substantially on these matters.
It is of some importance that the ICJ is performing this role. The Security Council is often unable to take action because of the exercise of the veto. The General Assembly may or may not take action, but even if it does, it is at its core a political body. The Human Rights Council does the best it can in the circumstances, but even it experiences political currents.
In bringing its case before the ICJ, South Africa rendered a service to the world, including Israel, by providing an opportunity for the evidence to be heard, and for conclusions to be drawn about what is taking place in Gaza, and how long it can continue. By appearing before the Court and arguing its case, Israel has contributed to this process. The exchanges were sometimes sharp and pointed. But this was needed in a situation that has given rise to much moral anguish. It was important that the legal issues be ventilated.
Taken to its core, the South African case involved three central arguments: first, under the Genocide Convention, all States parties, including Israel and South Africa, were under a legal duty to act for the prevention of genocide, and certainly should not be involved in the commission of genocide, as Israel was allegedly doing. Second, it argued, there was ample evidence on the part of various strata of the Israeli government and services of an intention to commit genocide. Third, even if Hamas had committed genocidal violence against Israel, it was not permitted in law to respond with genocidal violence of its own. Genocidal violence was never permissible in international law.
Israel, for its part, argued that it had been genocidally attacked, that it was entitled to exercise the right of self-defence, that it was entitled to remove the danger from Hamas forever, and that it was taking measures to minimise the impact on civilians in Gaza. It further argued that alleged statements adduced to show genocidal intention were from marginal sources or had been mis-interpreted. Israel stressed that there were no genocidal acts, nor no genocidal intent on its part. Furthermore, its Counsel, Malcolm Shaw KC, argued in some detail that there was no actual dispute between itself and South Africa. The existence of a dispute was necessary to ground the jurisdiction of the ICJ in the case. Hence the ICJ should not entertain the case.
The hearings on Thursday and Friday were concerned with the South African application to the Court for interim measures of protection, namely that Israel should be ordered to observe a cease-fire so that humanitarian relief and assistance might be provided to the innocent civilian victims in Gaza. The Court will pronounce on this application for interim measures in the next week or two and, given its record of making similar orders in past cases of this kind, one might expect it to grant the order for interim measures of protection. A final decision on the case can be expected to take some years to be litigated.
In an impassioned presentation to the Court on behalf of South Africa, British Barrister Alan Vaughan Lowe, KC. eloquently summed up the significance of this case for the world: “This is not a moment for the Court to sit back and be silent. It is necessary that it assert its authority, and itself order compliance with the obligations under the Genocide Convention. Indeed, it is hard to think of a case in recent history which has been so important for the future of international law, and of the Court.”
Indeed so. This case was brought under Article IX of the Genocide Convention, which entitles any Contracting Party to the Convention to submit to the Court disputes relating to the interpretation, application or fulfilment of the Convention.
The Court does not at this stage have to determine whether or not Israel has or has not acted contrary to its obligations under the Genocide Convention. That can only be done at the merits stage. It is concerned now only with the question of whether, and what provisional measures are required pending its final decision on the merits.
South Africa submitted that months of continuous bombing, flattening entire residential blocks and cutting off food and water and electricity and communications to an entire population, could not credibly be argued to be a man-hunt for members of Hamas. It was an indiscriminate attack, killing, maiming and terrorizing the entire population of Gaza with no regard to questions of innocence or guilt, obliterating the homes and cities in which they live, and destroying any practical possibility of their return to make their homes amidst the rubble.
Israel’s action, South Africa alleged, both attacked Palestinians in Gaza directly, and also prevented humanitarian relief reaching them. Palestinians faced death from the continuing bombardments and shootings, and death from starvation and disease, which was even more indiscriminate, but usually slower.
That was why South Africa had requested an Order for the immediate suspension of Israel’s military operations in and against Gaza. It was the only way to secure the humanitarian response and avoid yet more unnecessary death and destruction.
South Africa emphasized that it was no use Israel saying that it did whatever it could to minimise the deaths of innocent men, women and children. “The use of 2000 pound bunker-busting bombs and dumb bombs in residential areas, and the relentless bombardment of Gaza, and even of so-called ‘safe areas’ to which Palestinians have been directed by Israel, tell another story. But that is not the only point. It is not just a question of scale and of indiscriminate killing. It is also a question of intention.”
If any military operation, no matter how it was carried out, was carried out pursuant to an intention to destroy a ‘people’, in whole or in part, it violated the Genocide Convention, and it must stop. That was why all military operations capable of violating the Genocide Convention must cease.
South Africa’s request for provisional measures called for the suspension of Israel’s military operations in and against Gaza. South Africa has requested an Order for the immediate suspension of Israel’s military operations in and against Gaza. This, it contended, was the only way to secure the needed humanitarian response and avoid yet more unnecessary death and destruction.
Israel, for its part vehemently insisted that it was within its right to continue the military campaign to eliminate Hamas totally, once and for all. It made detailed presentations of its efforts to comply with the rules of international humanitarian law as it pursued its military campaign against Hamas. It pointed out that Hamas regularly operated out of civilian locations or humanitarian centres. It also presented evidence of its efforts to facilitate the supply of humanitarian aid and assistance. It complained, however, that this had been rendered difficult because Hamas had a practice of diverting humanitarian aid to its war effort, rendering the process of delivering humanitarian aid complicated.
The issues have been canvassed on both sides. We now await the decision of the court of conscience.
