Any party to the Genocide Convention can submit the matter to the World Court, which could make a finding of genocide, writes Marjorie Cohn. The General Assembly also has an option left.
Protest outside the Israeli Embassy Hanukkah party in Washington on Dec. 12. (Diane Krauthamer, Flickr, CC BY-NC-SA 2.0)
As Israel continues its genocide against the Palestinians in Gaza — with the death toll now exceeding 20,000 (about 70 percent women and children) — the world seems powerless to stop the slaughter.
The Biden administration, Israel’s chief enabler, defanged the resolution that was ultimately passed by the U.N. Security Council on Dec. 22, rendering it merely symbolic. The final resolution calls for humanitarian assistance but not for a ceasefire which would allow aid to reach the people of Gaza. The U.S. saved diplomatic face by not employing its customary veto, but it did not vote for the resolution, electing instead to abstain.
On the same day, Paula Gaviria Betancur, special rapporteur on the human rights of internally displaced persons, warned that Israel seeks to permanently change the composition of Gaza’s population with additional evacuation orders, and systematic and widespread attacks on civilians and civilian infrastructure in areas of southern Gaza.
Calls for prosecution of Israeli and U.S. officials in the International Criminal Court (ICC) have been ignored as the chief prosecutor of the ICC demonstrates blatant bias in favor of Israel.
On Nov. 13, the Center for Constitutional Rights filed a lawsuit on behalf of Palestinian human rights organizations, Palestinians and Palestinian Americans against President Joe Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin, charging them with failure to prevent genocide and complicity in genocide. It seeks an emergency court order to halt U.S. military and diplomatic support to the Israeli government. The suit documents how Israel is committing genocide as defined in the Genocide Convention. A hearing will take place in January.
Nevertheless, the carnage continues unabated.
‘World Court’ Decides Disputes Between Countries
International Court of Justice in The Hague. (R Boed, Flickr, CC BY 2.0)
The ICC’s Rome Statute provides for the prosecution of individuals who commit, or aid and abet the commission of genocide. By contrast, the International Court of Justice (ICJ or “World Court”) — the judicial arm of the U.N. system — resolves disputes between countries.
Any of the 153 state parties to the Genocide Convention can and should submit Israel’s genocide to the ICJ. Article IX of the Genocide Convention provides:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide . . . shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
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A formal investigation of the “Situation in the State of Palestine” has been pending in the ICC for nearly three years. If the ICJ were to make a finding of genocide, the ICC would not have to determine that genocide has occurred. The ICC would just have to decide which individuals are responsible for the genocide.
In the last two months, states parties to the Genocide Convention — including South Africa, Bangladesh, Bolivia, Comoros, Colombia, Algeria and Turkey — have urged the ICC to investigate Israeli officials for genocide, war crimes and crimes against humanity committed in Gaza. Other countries critical of Israel’s actions include Pakistan, Brazil, Chile, Belize, Jordan, Ireland, Honduras, Bahrain, Venezuela, Iran and Cuba.
These countries should be urged to submit the matter of Israel’s genocide to the ICJ. If one of them does make a submission, the ICJ would have jurisdiction to hear the matter. Its decision must then go to the Security Council for enforcement, although that could be limited by political considerations.
When the Genocide Convention was invoked against Serbia by Bosnia and Herzegovina regarding the 1995 massacre at Srebrenica, the ICJ ruled against Serbia. This fed directly through to prosecutions at the International Criminal Tribunal for the former Yugoslavia.
Front view of the International Criminal Tribunal for the Former Yugoslavia, in the Hague, the Netherlands, 2009. (ICTY staff, Wikimedia Commons, CC BY 3.0)
In 2004, the ICJ issued an advisory opinion against Israel in the case involving the barrier wall it built on Palestinian land. There’s another advisory opinion case pending in the ICJ about the legality of Israel’s occupation of Palestinian territory, in which the ICJ is expected to rule against Israel.
But if a state party to the Genocide Convention were to submit the matter of Israel’s genocide to the ICJ, the court’s decision could have binding authority.
On Dec. 12, Craig Murray, the U.K.’s former ambassador to Uzbekistan, attended a U.N. session in Geneva called by Palestine. More than 120 countries were represented. Murray spoke to several delegates about why no country has submitted the matter of Israel’s genocide to the ICJ.
“The answer is now clear to me,” Murray wrote. “It is not that people are worried that a claim of genocide will not be successful at the International Court of Justice. It is that everybody is quite sure it will succeed.”
World Court Finding of Genocide Would Bind the ICC
ICC in The Hague, Netherlands. (Hypergio, Wikimedia Commons, CC BY-SA 4.0)
“The problem is that once the ICJ has determined that this is a genocide, it follows that not only are [Israeli Prime Minister Benjamin] Netanyahu and hundreds of senior Israeli officials and military personally liable,” according to Murray. “[B]ut it is absolutely plain that ‘Genocide Joe’ Biden, [U.K. Prime Minister Rishi] Sunak and members of their administrations are also criminally liable for complicity, having provided military support for the genocide.”
Murray added, “The International Criminal Court cannot ignore a judgment of genocide from the International Court of Justice and will have no choice but to issue arrest warrants.”
There is no doubt that Israel is committing genocide in Gaza. Craig Mokhiber, former director of the New York Office of the UN’s High Commissioner of Human Rights (who resigned in October to protest the UN’s failure to prevent Israel’s genocide) called it “unprecedented — a text book case of genocide.”
Speaking at a Dec. 13 webinar sponsored by the Institute for Policy Studies, Friends Committee on National Legislation and MPower Action, Mokhiber said that Israel has murdered entire bloodlines, multigenerational families and whole neighborhoods in Gaza.
Israel has destroyed the civilian infrastructure and intentionally imposed disease, hunger, thirst and a lack of medical care on the people in Gaza. This amounts to the deliberate infliction of conditions of life calculated to bring about the destruction of the Palestinians in whole or in part, Mokhiber stated, which constitutes a genocidal act.
The ICJ can infer genocidal intent from Israel’s conduct, Mokhiber noted. But, he added, the court doesn’t need to infer intent from conduct because Israel is openly declaring its genocidal intent through public statements uttered by Israeli government officials: the intent to reduce Gaza to rubble, to bury Gazans, etc. “I have never seen a case like this,” Mokhiber said.
General Assembly Should Convene Under ‘Uniting for Peace’
Corridor at U.N. headquarters in New York on Sept. 23, during the 78th General Assembly debate. (UN Photo/Mark Garten)
There is also a procedure the General Assembly can follow to circumvent a U.S. veto in the Security Council. Under Uniting for Peace, a resolution passed by the General Assembly to evade the Soviet Union’s veto power during the Korean War, the General Assembly can call on its 193 U.N. member states to impose a trade embargo on Israel and urge them to organize a military force to intervene in Gaza. The General Assembly can also suspend Israel from its ranks.
I have joined more than 1,000 global intellectuals in signing a Declaration of Conscience and Concern, urging “national governments to embargo and halt all shipments of weapons to Israel, especially the United States and the United Kingdom, which should also withdraw their provocative naval presences from the Eastern Mediterranean.” We called on “the UN Security Council and General Assembly to so decree without delay.”
Moreover, we “unequivocally” urged “an immediate ceasefire and the initiation of diplomatic negotiations under respected and impartial auspices, aimed at terminating Israel’s long and criminally abusive occupation of Gaza, the West Bank, and East Jerusalem. This process,” we wrote, “must be fully respectful of the inalienable right to self-determination of the Palestinian people and take proper account of relevant UN resolutions.”
Millions of people around the world have taken to the streets to protest Israel’s genocide. We must redouble our efforts to mobilize public opinion to pressure countries critical of Israel to submit the matter of its genocide to the ICJ and convene the General Assembly under Uniting for Peace. And we must support the Boycott, Divestment, Sanctions movement to compel Israel to end its occupation of Palestinian land. The people of Gaza deserve our immediate and urgent action.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. She is founding dean of the People’s Academy of International Law and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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This digital poster offers a different take on the “genocide” shirt worn by the woman in the Israel protest photo: hxxps://www.facebook.com/ira.dember/posts/pfbid02NKRp3ef47TNKB8dZtKpDtH7YSeut5kNPBW6MXK9We94hSFDHyC4K4hSHZiJ3kFRNl
Thank you Marjorie, for your instructive article. It’s ironic that South Africa has taken the lead…but perhaps it’s a glimmer of righteous light shinning the the way… for all of us… out of the current hellstrom of apartheid and mass murder. I hope so.
If the Zionist led governments of the west won’t act… it is up to all of us as individuals to stop this barbaric behavior. As individuals we are frustrated and powerless. We need to unite. We need to remind our fellow citizens to practice kindness & justice….and not tolerate the genocide of “other humans”.
Support BDS. Recognize that AIPAC is an alien influence detrimental to America.
We could form a virtual World Union dedicated to the Equality of Human Rights and the Sustainability of our Planet. As a World Union we could apply all the tools of passive resistance to our cancer of excessive growth & consumption. With renewed dedication our collective voice, from around the earth, could confront and defeat forever the misguided myth of the “Chosen People”.
Let us assume that the “answer” Murray received is correct.
If the charge of genocide is quite certain to success, then why, other than fear, would it not be brought?
How likely is it that Biden, Blinken, and Austin would respond, in any fashion, to a charge of genocide and an arrest warrant, except of going “nuclear”?
Yet, before we accuse other nations of lacking courage and conscience, let us consider that those with the greatest and gravest responsibility (both as a “right” and a duty), to hold U$ leaders (who are funding and arming Israel and thus are equally culpable for genocide) to account, remain the people of the U$, themselves as all is done in our name.
Let the excuses begin.
Even with Ukraine, we have witnessed those U$ians who say they cannot speak truth or they will lose their jobs, relationships, social standing, and the good graces of their families.
With genocide in Gaza, the fear of consequence has ended all discussion at U$ universities, Ivy and Football alike, as those institutions seek, now, to punish their students in order to avoid the intimidating wrath of an Executive and Congress fully onboard with genocide.
Which is the result of the Israeli lobby’s influence, especially financial, upon U$ governance, the M$M, and U$ institutions of Higher Learning, all now ideologically driven and doubtless most willing to thunder their disapproval and displeasure with those who dare speak the truth.
How else may we consider that 37 U$ states have already, over the past several years, essentially outlawed BDS?
That is 74% of U$ states have blindly (and most righteously) elevated Israel over the First Ammendment right of free speech. THAT is our institutional “solution”, though not quite yet, final.
For this nation to be brought to such low repute requires two things: The official embrasure of genocide and the effective silencing of the people.
Yet still, there will be those U$ians who will complain, “How can the people of the world do this to us? We have treated them so well and generously!”
Perhaps, like Israel, it will be claimed that “WE” are “God’s Chosen”.
A most preposterous claim, pathetic, in fact.
The South African application to the ICJ is here: hXXps://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf
I don’t know the details, but I saw a mention on an Arabic website that South Africa had filed a lawsuit with the ICJ concerning the crime of Genocide. I checked Mickey Mouse News (Disney > ABC) and they had no mention of it. But then again, I would expect such news to require some serious editorial meetings about whether to cover or censor such news.
Does reporting an accusation of Genocide against Israel violate corporate anti-semitism standards would be a question for the lawyers and problem for executives up to Mickey himself, or higher? And they probably would need White House Approval to run the story. No surprise that the ‘rest of world’ has it up first.
These belief systems, religions and ideologies have allowed this state of affairs. Mirrors can be embarasing and shameful but we can only start from where we are. This is not spectator activity,
though it feels like it.
Nothing, absolutely nothing will work with these Zionist supremacists except force! That’s it!
Lawfare, UN resolutions, massive protests, all are futile, sad to say. The only thing Zionist supremacists respond to is force and violence.
Nothing has worked to stop the most disgraceful ethnic-cleansing of our lifetimes. Serious force might.
A start without overt violence: cutting off billions in military aid. Violence and cutting aid are equally unlikely.
Craig Murray too, in an article from Dec., 7 (!) provides a tentative comment on the reason why the Genocide Convention isn’t (yet) being called for – hxxps://www.craigmurray.org.uk/archives/2023/12/stopping-genocide/
How terribly sad…all the time that is totally being wasted with useless squabbling while so many, too many, Palestinians continue to be massacred by the Zionists. Purposely???
Someone has done just that:
South Africa has filed a case against Israel at the International Court of Justice (ICJ), accusing it of crimes of genocide against Palestinians in Gaza after nearly three months of relentless Israeli bombardment has killed more than 21,500 people and caused widespread destruction in the besieged enclave.
In an application to the court on Friday, South Africa described Israel’s actions in Gaza as “genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”
Al Jazeera
Good.
When Yemen is acting to stop the genocide, the richer and more powerful nations of the world have no excuse for inaction.
Yemen, a poor country, that has been under Imperial siege and assault for most of the last decade, is the only nation on Earth that is truly standing up and demanding that the Genocide must stop. What that shows is that what is required is morality and strength of will, not riches and powerful armies. Yemen is passing that test, while the rest of the world is demonstrating a lack of both morality and strength of will.
If the UN were to somehow find a secret stash of ‘morality’ and ‘strength of will’, then they would have little problem in stopping the Genocide. Better Call Yemen.
Murray, Mokhiber, Cohn make great points – we would love to see that. However, as we have seen, the US/UK/Israel make a mockery of international law and the rule of law in general. These “democracies” routinely ignore the law, public opinion, world opinion and basically says “F YOU! to the world.
Don’t like to fund, support and cheer-lead genocide? Too f-in bad: in the US/UK all major political “parties” unconditionally support Israeli Apartheid, ethnic cleansing and genocide. The US destroyed Iraq and mass murdered over a million people, but Tony Blair/Bush/Cheney are lauded as great men, and have become even more wealthy than before. WTF?!
High Crimes do pay, the law and taxes are only for “the little people”.
A full-blown blockade of Israel would be great, however the US will use brute violence to protect any threat to Israeli/UK/US interests. The US has the Wolfowitz Doctrine, coupled with Nuclear First Strike doctrine. Israel has nukes, and has their own Samson Option.
It might sound hyperbolic, but the US has a nuclear gun pointed at the world’s head. It is hegemony or destruction.
Yes, the US does have a nuclear gun pointed at the world’s head – and it currently has a vicious regime headed by a demented figure who has his finger on the button, and who seems determined to start a full-blown war in the middle east, mainly targeting Iran.
And the previous nutcase tried to start a war with Iran (assassinating Iranian General Suleimani), and do Israel’s bidding as well. POTUS must be a demented figure in order to be supported by the D/R dictatorship. Bush Jr. and Tony Blair laugh all the way to the bank.