January 18, 2024

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Upendra Baxi writes: ICJ’s patchy history — why South Africa’s case against Israel may linger on

4 min read

South Africa’s (SA) application to the International Court of Justice (ICJ) is simple but devastating. Israel is a state founded on saying “never again” to the modern Nazi genocide against the Jews. SA alleges violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Convention) because Israel continually threatens, adopts, and condones genocidal acts “against the Palestinian people, a distinct national, racial and ethnical group”. SA “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups”, but it maintains that no “armed attack on a state’s territory” even “serious… “attack involving atrocity crimes” can, provide any possible justification for breaches of the Convention whether in “law or morality”. Rather, the Convention is attracted because “acts and omissions by Israel” manifest genocidal intent as these “are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group in the Gaza Strip… including intentionally directing attacks against the civilian population… and buildings dedicated to religion, education, art, science, historic monuments, hospitals”.

Israel opens its statement by saying: “Seared in our collective memory is the systematic murder of six million Jews as part of a pre-meditated and heinous program for their total annihilation”. It is not surprising that it was “among the first States to ratify the Convention, without reservation, and to incorporate its provisions in its domestic legislation”. For Israel the promise of “Never Again” for all peoples signifies the “highest moral obligation”.

Describing the civilian suffering in this war, like in all wars, as “tragic” and “heartbreaking”, Israel stresses the “harsh realities of the current hostilities” aggravated for civilians given Hamas’s reprehensible strategy of “seeking to maximise civilian harm to both Israelis and Palestinians, even as Israel seeks to minimise it”. However, the Convention was not designed to address the “brutal impact of intensive hostilities on the civilian population, even when the use of force raises “very serious issues of international law” and involves “enormous suffering” and “continuing loss of life”. The Convention addresses a “malevolent crime of the most exceptional severity”.

SA’s attempt to “weaponise the term genocide against Israel… does more than tell the Court a grossly distorted story”. It empties the word of its “unique force and special meaning”. In effect, the message is that self-defensive actions are rarely available even when there is a terror attack fully disrespecting “life and … the law”. All told, some “1,200 people were butchered that day, more than 5,500 maimed, and … 240 hostages abducted, including infants, entire families, persons with disabilities and Holocaust survivors, some of whom have since been executed”.

Israel stated firmly the recall of these acts of horror does not relieve it of its “unquestionable obligations to uphold the law as it defends its citizens and territory” but rather to make it possible to “understand the armed conflict in Gaza… the nature of the threat Israel is facing, and the brutality and lawlessness of the armed force confronting it”. Contesting SA, Israel, for example, exposes the weakness in data collection and analysis — while every “civilian casualty in this conflict is a human tragedy that demands our compassion… the Court is not told how many thousands of casualties are in fact militants, how many were killed by Hamas fire, how many were civilians taking direct part in hostilities”.

Festive offer

It will take several months to decide jurisdictional issues such as whether a “dispute” under the Convention exists at all between SA and Israel. It would then take years to decide whether there was any criminal genocidal intent. The Bosnia case took 14 years; Gambia v Myanmar that concerns genocide is still being heard.

ICJ’s verdict in 2007 pertained to the Srebrenica July 1995 genocide — it was about the killing of more than 8,000 Bosniak Muslim men and boys in and around the town during the Bosnian War. The massacre was conducted largely by the Bosnian Serb Army of Republika Srpska (VRS) under the command of Ratko Mladic. He was later indicted by the Intentional Criminal Court (ICC), thus establishing a high “synergy” between ICC and ICJ. Yet, there is no rule establishing proof of genocidal intent, except that a very high standard is required as the court considers each case. But the wait was worthwhile in this case, as the ICJ invoked the obligatory duties (in Article 1 of the Convention) of contracting parties to prevent and punish acts of genocide, now considered a part of customary international law binding all states.

Both SA and Israel are rightly seeking provisional measures until the case is decided. Unless the ICJ innovates jurisprudence on the matter, the repository of international law dictates a ceasefire and the systemic flow of humanitarian relief. However, the experience in this regard is not a good guide. Russia challenged the ICJ when ceasefire directions in the Ukraine war were ordered. As regards enforcement, a single veto by any one of the five permanent members of the UN Security Council may result in non-compliance with the ICJ directives.

All one can do is hope against hope that the present litigation may offer avenues for innovation from the past histories of non -compliance at the ICJ.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi

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