By Abbas Al Lawati, CNN
Israel will appear before the International Court of Justice this week in a high-stakes case that could be the course of the brutal war in Gaza.
This is an unprecedented case. Experts say this is the first time an attempt has been made to create a Jewish state under the United Nations Genocide Convention, which was drafted after World War II in light of the atrocities committed against the Jewish people in the Holocaust.
The South African government, a successor to the apartheid regime that was made a pariah on the international stage three decades ago, brought the case against Israel, accusing it of being in breach of its obligations under the convention in its war on Hamas in Gaza.
Israel has firmly rejected the accusation, with Prime Minister Benjamin Netanyahu calling it a “false accusation.”
Israeli President Isaac Herzog said on Tuesday that his country would make a case for “self-defense” to show it is doing “everything possible” in “extremely confusing circumstances” to avoid civilian casualties in Gaza.
Eliav Lieblich, a professor of foreign law at Tel Aviv University, told CNN that the case is politically and legally important. “An allegation of genocide is the most serious foreign legal allegation that can be made against a state,” he said.
Here’s what we know about this case.
South Africa is taking Israel to the ICJ, also known as the World Court, on the grounds that it is committing genocide against Palestinians in Gaza and has failed to save them from genocide.
“More gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza,” South Africa said in its 84-page filing to the court.
South Africa claims that Israel’s moves in Gaza are genocidal “because they aim to cause the destruction of a really large part of the Palestinian national, racial and ethnic group. “
“The acts are accompanied by the slaughter of Palestinians in Gaza, causing them serious physical and intellectual harm and provoking life situations calculated to bring about their physical destruction,” the document says.
More than 23,000 people have been killed in Gaza since October 7, according to Gaza’s Hamas-run Ministry of Health.
The United Nations defines genocide as an act “committed with intent to destroy, in whole or in part, a national, ethnic, racial group or group. “
The U. N. says it developed “in part as a reaction to Nazi policies of systematic murder of the Jewish population during the Holocaust. “
The eight-page ICJ document notes what South Africa describes as “expressions of genocidal intent” through Israeli leaders, including Prime Minister Benjamin Netanyahu and members of his cabinet.
South Africa also asked the court to consider “interim measures” ordering Israel to end its war in Gaza, which it said were “necessary in this case to oppose additional, serious and irreparable harm to the rights of the Palestinian people. “An action is a transitory order to remain actions, or an injunction, that terminates a final decision.
The Organization of Islamic Cooperation, a grouping of 57 Muslim countries, as well as Jordan, Turkey and Malaysia, have supported the cause.
The ICJ is founded in The Hague, Netherlands, and was established in June 1945 by the Charter of the United Nations.
The Court prosecutes governments, while the International Criminal Court, also in The Hague, prosecutes individuals. Israel recognizes the ICC, so the court has no jurisdiction over it. However, Israel is a signatory to the Genocide Convention, which grants jurisdiction to the ICJ.
Member states of the UN and those who have accepted the ICJ’s jurisdiction can present cases. The court accepts cases in which the states involved have each accepted its jurisdiction. The ICJ is composed of 15 judges who serve nine-year terms. Current judges are from the US, Russia, China, Slovakia, Morocco, Lebanon, India, France, Somalia, Jamaica, Japan, Germany, Australia, Uganda and Brazil. Five seats come up for election every three years, with no consecutive term limit.
Four new judges will join in February, adding Dire Tladi from South Africa.
Ad hoc judges can be appointed through the contentious parties (state-to-state), in this case Israel and South Africa, bringing the number of judges assigned to the case to 17. South Africa has appointed Dikgang Moseneke, the country’s former MP. leader of justice, and Israel appointed Aharon Barak as the country’s former leader of justice.
Experts estimate that a final resolution may take only years.
Israel called the case a “bloody smear” in South Africa, a thinly veiled accusation of anti-Semitism, and Netanyahu, in turn, said Hamas was the one that committed the genocide, adding that the Israeli military acted “in the most ethical way possible. ” and “not everything to avoid harming civilians. “
“And I ask: where were you, South Africa and the rest of those who slander us, where were you when millions of people were killed and displaced from their homes in Syria, Yemen and elsewhere? You were not there. ” said the prime minister.
Israel will be brought before the courts.
That’s because it is a signatory to the UN’s 1948 Genocide Convention, which was drafted in the aftermath of the Holocaust. The treaty gives the ICJ the authority to adjudicate in cases, which can be brought by parties not directly affected by the alleged genocide in question.
“Given that the court has transparent jurisdiction, it would be transparent if Israel simply did not appear,” Lieblich said. “Furthermore, genocide is a serious accusation and states sometimes need to make their case. “
The Israeli public’s view of the case reflects political disagreements in the country, Lieblich said. “Some see this proceeding as yet another case of foreign bias against Israel. Many others are angry because they believe that this issue was only made imaginable thanks to irresponsible statements by far-right politicians, which, in their eyes, do not constitute real politics. “
But he added that few in the Israeli mainstream are willing to accept accusations of genocide. “They basically see the war as a war of self-defense against Hamas, which, due to Hamas’ tactics, causes significant but accidental harm to civilians. “
Polls show that Israelis overwhelmingly support the war.
Citing an Israeli diplomatic cable, Axios reported that Israel has mobilized its diplomats to force host countries to accept its position and create foreign tensions opposing the case. His “strategic goal,” he said, is for the court to reject the request for an injunction. , refrains from accusing Israel of committing genocide and acknowledges that it is acting in accordance with foreign law.
“A court ruling can have significant forward-looking implications that only the legal world fears, but which have bilateral, multilateral, economic, and security practical ramifications,” Axios quoted the cable as saying.
Israeli government spokesperson Eylon Levy said Pretoria is “criminally complicit with Hamas’ campaign of genocide against our people.”
It accused him of double standards and supporting former Sudanese President Omar al-Bashir, who is facing an arrest warrant issued through the ICC.
“How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro bono for anti-Jewish racists,” he said in a January 2 speech posted on X. “We assure South Africa’s leaders: History will judge you. And it will judge you without mercy.”
Lieblich said South Africa appears to be positioning itself in opposition to U. S. dominance of the foreign order.
“While proceeding with the case against Israel, South Africa criticized the ICC arrest warrant against Vladimir Putin and also refrained from arresting Omar al-Bashir in the future,” he said. “So there is a transparent exterior here. South Africa has been very transparent about what it considers a Western double standard, and this case is part of that campaign. “
Although the ICJ has ruled against Israel in the past, it has done so through non-binding “advisory opinions” requested from UN bodies such as the General Assembly.
This is the first time Israel has been sued before the ICJ in what is known as a “contentious case,” in which states directly raise competing claims.
In 2004, the ICJ issued an advisory opinion declaring Israel’s separation barrier in the occupied West Bank to be in violation of international law, and called for it to be torn down. Israel ignored that decision.
If the ICJ ends up finding Israel guilty of genocide, it will be the first time it has found that a state committed genocide, Mavens said.
“This would set a vital precedent, first and foremost because the ICJ has never ruled, until now, that a state has committed genocide,” Lieblich said. “The latest is to say that Serbia failed to save us from the genocide perpetrated by the militias in Srebrenica. In this sense, such a resolution would be legally unexplored. “
While no state has been found to be directly responsible for genocide by the court, both Myanmar and Russia have faced provisional measures in genocide cases in recent years.
All ICJ judgments are final, binding and binding.
But the ICJ can’t guarantee compliance. In March 2022, for example, the court ordered Russia to immediately halt its military campaign in Ukraine. Kyiv, which brought the case, disputed the grounds for Russia’s invasion, and asked for emergency measures against Russia to halt the violence before the case was heard in full.
Israel will appear in public court hearings on Friday to challenge South Africa’s genocide allegations.
A genocide ruling may take years to prove, but the injunction on the Gaza war that Pretoria has requested from the ICJ may come much sooner.
Daniel Machover, a London-based lawyer and foreign justice expert, told CNN that an interim measure would be a quick resolution that would be made before a final resolution on genocide is adopted.
South Africa, he said, only wants to show that it has status to sue, that it has fulfilled its duty to prevent genocide, that there is a “plausible legal argument” that violations of the Genocide Convention are occurring or may occur. whereas there is a genuine and imminent threat that irreparable harm will be caused to the citizens of Gaza before the court makes its final decision, so that the court will have to order Israel to end the war.
Francis Boyle, an American human rights lawyer who won two requests at the ICJ under the Genocide Convention against Yugoslavia on behalf of Bosnia and Herzegovina, told Democracy Now that based on his review of the documents submitted by South Africa, he believes Pretoria will indeed win “an order against Israel to cease and desist from committing all acts of genocide against the Palestinians.”
Boyle, based on his experience in the Bosnian case, said the order could come within a week of this week’s hearing.
Lieblich doubts Israel will stop fighting completely if the court issues a war warrant. Instead, he can simply attack the legitimacy of the court and its judges, “given that some of them come from states that do not recognize Israel. ” that the resolution be unanimous, he added.
“The consequences of non-compliance can range from reputational damage and political tension to sanctions and other measures taken through third states or other UN resolutions,” he said. “The key for Israel would be how its key allies would act in such a situation. “case. “
He added that while the threshold for an injunction is relatively low, in the main case, proving genocide requires two elements: proof that certain unlawful acts were committed, and that these acts were committed with specific intent to destroy a certain group.
“In past ICJ cases the court required a high threshold to prove such allegations,” he said. “Here the challenge for South Africa would be to prove that statements by some Israeli officials actually reflect the state’s ‘intent’ as a whole, and also that Israel’s actions on the ground were both unlawful and actually tied to an intent to destroy the group as such.”
The consequences of an ICJ ruling could extend beyond Israel, experts say. This would only embarrass Israel’s closest ally, the United States, but it could also consider Washington complicit in the alleged violation of the Genocide Convention.
“Although the South African bid is focused on Israel, it has enormous implications for the United States, especially for President Joe Biden and his more sensible lieutenants,” wrote John Mearsheimer, an American political scientist.
“Why? Because there is little doubt that the Biden administration is complicitous” in Israel’s war, he said.
Biden claimed Israel was carrying out “indiscriminate” bombings on Gaza, but also vowed to protect the country. The United States bypassed Congress twice to sell military equipment to Israel for war.
“Leaving aside the legal implications of his behavior, Biden’s call — and America’s call — will be related to what will most likely become one of the classic examples of attempted genocide,” Mearsheimer wrote.
Even if Israel ignores an order by the ICJ, there will be a legal obligation among other signatories to comply, said Machover. “So, anyone assisting Israel at that point will be in breach of that order.”
“It’s possible that we’ll have global litigation if states don’t stop helping Israel. . . There will be legal repercussions around the world,” he said.
The case could also have an effect on Israeli public opinion, Machover said. He believes that a significant number of Israelis “have not looked in the mirror” and are not aware of the true effect of the war on Palestinians in Gaza.
He hopes the ICJ case will prompt the Israeli public to interact in “a kind of introspection. “
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