By Ramindu Perera
Last week, South Africa referred Israel’s actions in the occupied Gaza Strip to the International Court of Justice (ICJ) arguing that the military operations amount to the crime of genocide. The oral hearings of the case were held on 11 and 12 January at the Hague, and the case has already attracted significant attention.
The ICJ is the judicial organ of the United Nations, and South Africa is seeking a provisional order requiring Israel to suspend their military operations. At this stage, South Africa does not have to prove that genocide is actually committed. To obtain a provisional order, establishing a prima facie case suggesting that there is substantive evidence concerning genocide is adequate.
The Crime of Crimes
Genocide is considered the gravest crime in international criminal law. This is known as the “crime of crimes.” The Genocide Convention was adopted in 1948 in the aftermath of the second world war in which six million Jews were exterminated by Nazi Germany. The object and the purpose of the Convention was to prevent such an occurrence again.
Thus, the convention attributes a duty on state parties to act to “prevent and punish” genocide. Article 8 of the Convention states that any state party can call upon the competent organs of the United Nations to take necessary action to prevent and suppress acts of genocide. Both South Africa and Israel are parties to the Genocide Convention, and South Africa relies on the aforementioned provisions of the Convention to invoke charges against Israel.
Unlike domestic law, international law does not have a formidable enforcement mechanism. Thus, even though ICJ can rule on inter-state disputes, if a state party chooses to disregard the ruling, there is nothing much that can be done against such a country. For instance, in 2022, during the Russian invasion, Ukraine lodged a complaint with the ICJ and obtained a provisional order asking Russia to suspend military operations.
However, Russia did not accept the order. That case too involved the Genocide Convention as Ukraine requested the ICJ to clarify the application of the Genocide definition in the Ukrainian context where Russia was alleging Ukraine of committing Genocide against ethnic Russians living in Eastern Ukraine.
However, if the ICJ accepts South Africa’s allegations, that would bring a significant loss for Israel at the diplomatic level. Further, the Western allies of Israel — countries like the United States, United Kingdom, and Germany would face a difficult situation because their support would be counted as aiding and abetting a genocidal war. Anticipating these possible repercussions, Western countries have already rushed to dismiss South Africa’s genocide claims.
While the United States has declared the genocidal claim as “meritless”, Germany has decided to intervene in the case as a non-party supporting Israel’s standing. Meanwhile, several countries from the Global South — countries belonging the to Organization of Islamic Cooperation, and non-Muslim countries like Bolivia, Colombia, and Brazil have declared their support to South Africa’s intervention.
Arguments and Counterarguments
At the oral hearing rounds, both South Africa and Israel presented their cases before the ICJ. The Genocide Convention defines genocide as acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Thus, acts such as killing members of the group, causing serious bodily and mental harm, and inflicting conditions that would bring physical destruction in whole or in part are defined as genocidal acts.
The indiscriminate bombing that has killed more than 23,000 civilians in the Gaza strip, displacement of 85 percent of the population, attacks on medical facilities while the population are in a dire need of medical attention are among facts South Africa brought in to describe the genocidal situation in Gaza.
To establish the crime, one must prove that there has been a genocidal intent. South Africa relies on several statements issued by Israeli high officials including the Prime Minister which indicate the intention of destroying Palestine as a national group. For instance, in a statement issued on 13th October 2023, the Israel Energy Minister stated:
“All the civilian population in Gaza is ordered to leave immediately, we will win. They will not receive a drop of water or a single battery until they leave the world.”
The Israeli counter-submission for these types of statements was that they were “random statements”, and some of them have been taken out of context. The challenging part in genocide cases is establishing intent because it is not easy to prove that at the point of committing the act, the state in question had the specific intent of destroying a particular group. It is accepted that intent can be inferred from actions of a state.
However, due to this complexity, in a previous case in which Bosnia brought allegations against Serbia on genocide claims (2007), the ICJ refrained from attributing responsibility to Serbia even though it found the Srebrenica massacre as genocidal. The reason was the failure to establish specific intent of genocide.
The main premise of Israel’s defense was that it was acting in self-defense — which is a principle well recognized by the United Nations Charter. The self-defense argument appears to be in a weak position for two reasons.
First, legitimate self-defense does not extend to the extent of permitting genocide. Prohibition of genocide is considered a peremptory norm in international law. Thus, the prohibition is absolute — no derogation is permitted from the prohibition. Simply, you cannot commit genocide in the name of self-defense.
Secondly, the status of Palestine as an occupied territory raises the question of the validity of the self-defense argument. Under international law, states exercise self-defense vis-à-vis other states. Since the 1967 war, Palestine has been considered to be an occupied territory by Israel.
This position was affirmed by the ICJ in 2004 in a case that examined the legality of Israel constructing a wall that infiltrated the occupied territories in Palestine (Israeli Wall Advisory opinion). It is debatable whether the self-defense argument can be brought concerning a territory that is under your own occupation.
Though Israel denies the status of occupation, particularly since disengagement from Gaza in 2006, many international bodies including the United Nations have repeatedly held that Israel is the occupying power due to the control it exerts.
Future of humanitarianism
The South African case is significant because it signifies a certain turning point in how humanitarian arguments are used in international politics. The invocation of humanitarian arguments to bring the conduct of other states into scrutiny was something that became common after the 1990s.
Starting from NATO bombings on Yugoslavia in the late 1990s, humanitarianism was often raised by the Western hegemonic bloc according to their geo-political agendas.
In most of these instances, the “accused” belonged to formerly colonized countries, the Global South. It was always formerly colonial masters — the ones who once thought that they had a civilizational mission to make non-European peoples “civilized” —who questioned the behavior of states in the Global South. Humanitarianism became the ideology of the unipolar world order that emerged aftermath of the collapse of the Soviet Union.
With how events are unfolding aftermath of the Israel assault on Gaza, it seems that the tide has taken an interesting turn. While the West unashamedly defends Israel’s horrendous behavior, it is countries from the Global South — from Iran to China, from South Africa to Brazil that have come forward for those who are being massacred.
Among other tools, international law has also been used to confront Israel’s misdeeds. Ironically, countries like the US and Germany, which so far preached the virtue of humanitarianism to the brown, black, and yellow people in the Global South, now have taken a position shielding Israel — the perpetrator of possible war crimes, and crimes against humanity from accusations.
After Gaza, what would be the future of Western humanitarianism? The appeal of Western humanitarianism was any way in decline due to the atrocities intervening forces committed in Iraq, Afghanistan, and Libya. After defending Israel’s horrific crimes in broad daylight, would the Western Bloc have the moral standing to talk the human rights language again, and question other countries?
Does South Africa’s intervention at the ICJ mark the end of the monopoly the West enjoyed concerning humanitarianism? Does this case indicate a new beginning, where the Global South has started using the same forums and discourses to question powerful Western countries and their allies? Whatever the answers to these questions are, it appears that South Africa has made a brilliant intervention — an intervention deserving due acknowledgment.
Ramindu Perera is a lecturer attached to the Department of Legal Studies of the Open University of Sri Lanka. He can be reached at raminduezln@gmail.com.
Factum is an Asia Pacific-focused think tank on International Relations, Tech Cooperation, and Strategic Communications accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.
