Gaza genocide and the ICJ

The October 7 attack of the Palestinian Resistance Movement Hamas on Israel was not surprising as reflected in UN Secretary General Antonio Guterres' comment that it "did not happen in vacuum." However, the scope and the nature of the attack against Israel have no precedence in the 16 years of Hamas rule in Gaza. It appears the severity of the attack stunned Israelis and has shaken their sense of invincibility.

In the wake of the Hamas attack, with the full military and financial backing by the US, Israel has invaded Gaza and promised to annihilate Hamas. In fact, Israeli cabinet declared war on Hamas and begun aerial bombardment indiscriminately killing thousands of civilians including children and destroying major hospitals and basic infrastructures and displacing about 2 million Palestinians. What is more astounding, these horrendous crimes are being committed by Israel in complete pathological openness.

Israel continues to attack Gaza with impunity. The civilian death toll is staggering. By the end of December, the death toll of Israel's gory genocide of Palestinians in the Gaza Strip has climbed to approximately 30,000 victims, according to the latest reports released by Euro-Med Human Rights Monitor. The majority of those killed in the Israeli air and artillery attacks on the Gaza Strip were civilians, including 11,422 children, 5,822 women, 481 health personnel and 101 journalists.

Meanwhile, 56,122 Palestinians have been injured, with hundreds of them critically wounded. Euro-Med Monitor estimates also indicate that there are more than 1.92 million displaced people in the Gaza Strip without safe shelter amid inhumane conditions. Israel has also continued to cause massive destruction and severe damage to vital infrastructure facilities in the Gaza Strip.

According to Melvin Goodman, a professor of government at Johns Hopkins University and a former CIA analyst, more than 70 per cent of Gaza's homes have been destroyed and more than half of its buildings have been damaged or destroyed.  Much of the water, electrical communications and health care infrastructure is beyond repair.  Only a handful of Gaza's 38 hospitals can accept patients.  Two-thirds of Gaza's school buildings have been damaged or destroyed, as well as several churches and more than 100 mosques.

Data collected by Oxfam indicate Israel's military is killing Palestinians at an average rate of 250 people a day which exceeds the daily death toll of any other major conflict of recent years. Not just in Gaza, the ongoing campaign of killing in the occupied West Bank is also escalating.

The state of Israel is now on a criminal rampage in Gaza, committing mass murder, dispossessing, looting of property, demolition of cultural and religious heritage and forced expulsion. What is astounding is that all these crimes are committed in the open.  Genocidal plans are openly written about in Israeli newspapers and discussed on radio and television talk shows. Yet, the West led by the US continues to defend Israel's colonial settle project and is complicit in the genocidal slaughter of Palestinians in Gaza.

More than 70 per cent of Gaza's population are refugees or descendants of refugees. 2023 so far was the bloodiest year in the Palestinian territories since the destruction of historic Palestine and the establishment of racist colonial settler apartheid state of Israel.

On December 29, 2023, South Africa lodged an application to the International Court of Justice (ICJ)  instituting genocide proceedings against Israel arguing that Israel  was breaching the UN Genocide Convention by "killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction". As for intent, South Africa pointed to dozens of statements made by Israeli leaders including the President, Prime Minister, and other cabinet officials and as well as Knesset members, military commanders and others.

While South Africa is not a party to the Israel-Hamas conflict, it claimed it had standing to bring the case as a party to the UN Genocide Convention. In wrenching and horrifying detail, South Africa's 84-page document describes Israeli actions as "genocidal in character, as they are committed with the requisite specific intent to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, ethnic group". The case then focused on the ICJ's obligations arising under the convention on the Prevention and Punishment for the Crime of Genocide and those of Israel. South Africa in its case wished that the ICJ adjudicate and declare that Israel had breached its obligations under the Convention, and "cease forthwith any acts and measures in breach of those obligations… and fully respect its obligations under the Genocide convention".

Lawyers representing the government of South Africa gave extraordinary arguments before the ICJ in The Hague, arguing that Israel is guilty of perpetrating genocide in violation of 1948 Genocide Convention. The team acting for South Africa requested the court to issue emergency measures to stop the continuing aerial bombardment and ground invasion of the Gaza Strip. That request for the provisional measure was the crux of the legal proceedings.

Adila Hassim, a South African High Court advocate made the first of the substantive presentation at the ICJ.  "The level of killing is so extensive that those bodies are found to be buried in mass graves, often unidentified", she said and then continued "more than 1,800 Palestinian families in Gaza have lost multiple family members and hundreds of multigenerational families have been wiped out, with no survivors…often all killed together".

She then added that Israel's "evacuation" order from Northern Gaza in the early stages of Israeli military aggression itself was genocidal. It required immediate movement taking only what could be carried while no humanitarian assistance permitted, and water, food and other necessities of life had deliberately been cut off. It was clearly calculated to bring about the destruction of the population".

South African High Court advocate Tembeka Ngcukaitobi referring to the long list of genocidal statements made by Israeli officials as listed in the complaint document, argued "These statements are not open to neutral interpretations, or after-the-fact rationalisation and reinterpretation by Israel. The statements were made by the persons in command of the state."

South African law professor and an advocate Max Du Plessis in his presentation at the ICJ  described that Israeli military operation in Gaza entails "destructive acts perpetrated by an occupying power against a subjugated and oppressed population.  For years, Israel has regarded itself as beyond and above law".

The ICJ also heard Israel's defence against allegations made by South Africa.  Israel in its counter-submission argued that South Africa's application was "distorted" and "decontextualised" Israel's military actions in Gaza. Then instead of arguing the case on legal points, the Israeli counsel resorted to emotional arguments referring to the Holocaust.

On the issue of self-defence, it is clearly enunciated in international law that Israel as an occupying force does not have the right to self-defence. In fact, the ICJ in 2003, ruled that an occupying power cannot claim right to self-defence, in a case involving Israel's construction of a separate wall in occupied West Bank.

The ICJ issued its first ruling on South Africa's case against Israel on January 26, 2024 ordering the state of Israel to take all necessary actions to prevent genocide in Gaza. The court did not, however, order Israel to cease its military operations in Gaza which is desperately needed. But the Court did demonstrate understanding of the principal issue under consideration in its determinations that Israel's military actions in Gaza fall within the provisions of the genocide convention. Also, Israel's engagement in "plausible genocide' is valid, meaning that the Court will begin trying Israel for genocide. But that will be a lengthy time-consuming process, and may take several years.

The Court issued in total six provisional measures but how those measures will be achieved without a cease fire or pause in fighting is not clear. More importantly, in view of the urgent need to protect the Gazans from the genocide they are experiencing at this moment, a cease-fire order is urgently needed.

Israel will make much of the fact that no order was made for it to halt its military actions. In fact, the day after the Court ruling, Israel has launched a major attack inside Khan Yunis, which is encircled with thousands trapped inside, and beginning its push toward Rafah. Israel's action in Khan Yunis is seen as an Israeli answer to the ICJ. This clearly indicates that ICJ ruling has hardly any immediate effect on what the Palestinians are experiencing.

The US has interpreted the court's decision that it merely reiterates Israel's right of self-defence and obligation to comply with international humanitarian law. It believes the court's decision is consistent with existing American policy on Israel and that it continues to view South Africa's case as "meritless." This is a legally indefensible reading of the court's ruling.

Kenneth Roth, the longtime director of Human Rights Watch, had this comment: "I wish the US government were as quick to suspend military aid to Israel upon a ICJ finding of plausible genocide . . . as it is to suspend aid to UNRWA".

The ICJ's  decision  not  to back South Africa's demand to a halt in military operations was doubtlessly driven by political considerations. To do so would have risked a direct confrontation with the US, the real force behind Israel. Without US money and weapons, Israel would not be able to continue its genocidal slaughter of Palestinians in Gaza.

But the ICJ on March 16, 2022, ordered among its provisional measures that Russia should immediately suspend the military operations against Ukraine. But strangely enough that is not the case with the South Africa's request to do so by Israel in Gaza.

Francis Boyle, Professor of International Law at the University of Illinois College of Law in an interview said, "(ICJ President Joan) Donoghue is a career long State Department apparatchik and legal hatchet person. I am certain that she is right now telling the United States government about all the behind-the-scenes maneuvers that are going on." He then further added, "Unfortunately, the President of the Court has a lot of power to shape the legal proceedings in favour of Israel and the United States, and against the Republic of South Africa."

One can completely disregard or dismiss Professor Boyle's opinion, but people familiar with the history of the UN over the last three quarters of a century, do not place much confidence in its procedures to bring about an end to Israel's genocidal slaughter campaign in Gaza, let alone prosecute war criminals in Tel-Aviv and its accomplices.

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