People die over there

On 29 December 2023, the Republic of South Africa filed a complaint with the International Court of Justice against the State of Israel concerning «acts threatened, adopted, condoned, undertaken or in the process of being implemented by the Government and by the armed forces of the State of Israel against the Palestinian people, a distinct national racial and ethnic group, following the attacks in Israel on 7 October 2023." South Africa says it condemns “unequivocally, all violations of international law by all parties, including direct attacks against Israeli and other civilians and the taking of hostages by Hamas and other Palestinian groups.” To explain its appeal, South Africa states that "no armed attack on the territory of a State, however serious - even if involving atrocious crimes - can however provide justification for breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide". In the appeal, South Africa believes that "Israel's acts and omissions are genocidal, as they are intended to destroy a substantial part of the Palestinian national, racial and ethnic group", that in the Gaza Strip. The cases indicated are killings of Palestinians, causing serious physical and mental harm and inflicting living conditions that lead to the destruction of the group. Finally, the South African government believes that Israel is not complying with its prevention obligations, failing, among other things, in its duty to punish direct and public incitements to genocide by senior Israeli leaders, "in clear violation of the convention".

The International Court of Justice, based in The Hague, is the highest judicial body of the UN, called upon to settle disputes between states. Made up of 15 judges of different nationalities and reflecting the main legal systems of the world, pronounces sentences that States undertake to respect. Generally speaking, the Court does not have compulsory jurisdiction. That is, states are not obliged to accept it. They can, however, declare that they accept it before a dispute arises or after it has arisen. There are some treaties (not many, in truth) that provide for the possibility for the states that are party to them to appeal to the Court for questions regarding their application or interpretation. The Genocide Convention of 9 December 1948 (significantly adopted the day before the Universal Declaration of Human Rights) is one of these, and South Africa has made use of this possibility.

On January 11th and 12th the first two hearings of the Court were held in the Peace Palace in The Hague, which allowed the South African government to present the reasons for the appeal and the requests, and the Israeli one to respond, leveraging its right to self-defense and recalling, on numerous occasions, the horrendous crimes committed by Hamas on 7 October.

South Africa's appeal is an 84-page text, and an adequate summary is obviously impossible. In practice, the Court is called upon to rule on two essential elements (each accompanied by numerous references and aspects). It will have to decide on the merits, that is, whether what is happening in these terrible months in Gaza can be legally classified as genocide, a crime that states have undertaken to prevent and repress. It seems clear here that one thing would be the Court's possible conclusion that it was truly a genocide, the result of the intention - an essential element in the qualification of what has been defined as "the crime of crimes" - to destroy in whole or in part a national, racial or ethnic group (the appeal qualifies it as all three), while it would be another to focus attention on prevention obligations. For this reason, the South African appeal also asked the Court for provisional, precautionary measures, before addressing the issue on the merits. In particular, the Court is asked to suspend hostilities "in and against Gaza". Furthermore, in accordance with the obligations of the convention, South Africa and Israel must "take all reasonable measures in their power to prevent genocide", and Israel should desist from the commission of acts prohibited by the convention. Finally, the Court is asked to require Israel to carry out all necessary acts for the protection, assistance to the Palestinian population and the flow of humanitarian aid.

As regards the question of substance - that is, whether it is a crime of genocide - it is foreseeable that we will have to wait years for the Court's ruling. The Court in the past has been very cautious, because it is not easy to demonstrate the existence of the subjective element of the intention to destroy the group. Due to the ease of bringing accusations of genocide to the Hague, given the clause present in the 1948 convention, states sometimes make political use of it. A case is pending before the Court between Ukraine and Russia, and in the past there have been cases between Bosnia and Croatia against Serbia. On 26 January the Court issued its decision on the provisional measures. He did not call for a suspension of hostilities, but for Israel to take all measures in its power to prevent the commission of acts of genocide (killing members of the group; causing serious physical or mental harm; deliberately inflicting living conditions leading to the destruction of group; impose measures that limit births), and that prevent and punish incitement to commit genocide. Finally, Israel must immediately take measures to enable the provision of essential services and humanitarian assistance to the Palestinian population. Within a month, Israel will have to report to the Court on what it has done to implement the order.
And in the meantime?
People continue to die over there.


Edoardo Greppi
NP February 2024