Technicality Could Sink Genocide Case v Israel

South Africa may have given the World Court a way out of ruling that Israel is plausibly committing genocide and must halt its attacks, writes Joe Lauria.

Shaw argues his case. (ICJ)

By Joe Lauria
Special to Consortium News

In its defense last Friday before the World Court against allegations by South Africa that it is committing genocide in Gaza and must be stopped, Israel made a legal argument that could torpedo the case if the court buys it.  

In order for a claim to reach the International Court of Justice, there must be an established dispute between two states. Israel’s argument is that such a dispute was never established and thus the ICJ lacks jurisdiction to hear South Africa’s claim. 

There would be a political outcry from those who seek to stop Israel’s ongoing slaughter in Gaza if the Court decides to dismiss the case on this technicality.

But given the pressure the Court is no doubt feeling from the United States, Germany and other allies of Israel it might be the best, if not the only way for the Court to escape without having to decide that it’s merely plausible that Israel is committing genocide.

That is the bar that needs to be met at this preliminary stage of the case for the Court to issue provisional measures to order Israel to cease its military operation.

The Dispute Over a Dispute

On Thursday, South Africa tried to build a case, probably in anticipation of Israel’s bid, that this was indeed a dispute between Israel and South Africa and it indeed belonged before the World Court.  

John Dugard, a South African professor of international law,  told the Court:

“The South African Government repeatedly voiced its concerns, in the Security Council and in public statements, that Israel’s actions had become genocidal. On 10 November, in a formal diplomatic démarche, it informed Israel that while it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes. 

On 17 November South Africa referred Israel’s commission of the crime of genocide to the International Criminal Court for ‘vigorous investigation’. In announcing this decision President Ramaphosa publicly expressed his abhorrence ‘for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place’.

To accuse a State of committing acts of genocide and to condemn it in such strong language is a major act on the part of a State. At this stage it became clear that there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts. 

South Africa repeated this accusation at a meeting of BRICS on 21 November 2023 and at an Emergency Special Session of the United Nations General Assembly on 12 December 2023. No response from Israel was forthcoming. None was necessary. By this time, the dispute had crystallized as a matter of law. This was confirmed by Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.”

Dugard argues that there is a dispute between Israel and South Africa. (UN TV Screenshot)

Dugard added that “as a matter of courtesy” before filing the case with the ICJ on Dec. 29, South Africa sent a “Note Verbale to the Embassy of Israel to reiterate its view that Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State party to the Genocide Convention, was under an obligation to prevent genocide from being committed.”

“Israel responded,” Dugard said, “by way of a Note Verbale that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute.” 

On Jan. 4, South Africa sent another Note Verbal highlighting Israel’s failure to respond adequately to South Africa’s concerns, and concluded that the dispute between the nations was “plainly not capable of resolution by way of a bilateral meeting.” 

In addition, on Nov. 20 Israel recalled its ambassador to South Africa in protests over South Africa calling Israel’s operation in Gaza “genocidal,” which can clearly be interpreted as a dispute. 

Israel Says There is No Dispute

For its part, Israel on Friday argued that no such dispute exists and therefore the Court lacks jurisdiction over the case. Quoting from Article IX of the Genocide Convention, British attorney Malcolm Shaw KC, representing Israel, told the Court:

“Whether or not a dispute in these terms exists at the time of the filing of the Application is a matter for objective determination by the Court, ‘it is a matter of substance, and not a question of form or procedure’. The Court will ‘take into account in particular any statements or documents exchanged between the Parties as well as any exchanges made in multilateral settings’, the Court has said.

The key point here is the use of the term ‘exchange’ between the parties. Unilateral assertion does not suffice. There needs to be some element of engagement between the parties. The element of interchange and bilateral interaction is required. A dispute is a reciprocal phenomenon.”

Shaw made clear Israel does not believe such an exchange took place:

“South Africa cites only a couple of general public statements by Israel referencing merely a press report by Reuters and a publicity release from the Israeli Ministry of Foreign Affairs. These responses were not addressed directly or even indirectly to South Africa. There is no evidence of ‘positive opposition’ as required by the Court.

Further, South Africa cites no relevant exchange between the Parties, which would be the normal fashion for the expression and determination of a dispute between States. This actually typifies how South Africa has approached this matter. It seems to believe that it does not take two to tango. It is sufficient if one State determines there is a dispute, leaving the other party flummoxed.

It is thus disingenuous for Professor Dugard to conclude that ‘Israel must have been aware from South Africa’s public statements, démarche and referral to the International Criminal Court of Israel’s genocidal acts that a dispute existed between the two States’. This is not a dispute, it is a ‘unispute,’ a one-sided clapping of hands.” 

The World Court in The Hague hearing South Africa v. Israel. (ICJ)

Shaw said Israel did respond to the Notes Verbale on Dec. 26 by offering to arrange a meeting between the two foreign ministries at South Africa’s “earliest convenience.” The Israeli embassy tried to deliver this note on Dec. 27 to the South African foreign ministry but the ministry was closed because of a holiday, Shaw said.

He claims Israel was informed by the South Africans on Dec. 28 that the note should be hand-delivered on Jan. 2, but on Dec. 29 filed the case with the ICJ, allowing no time for the states to have a dialogue.

That South Africa did not wait for this bilateral meeting before filing with the court puts its case at risk.  

Legal Experts Weigh In

“There does have to be a position stated by one side and rejected by the other before there is a dispute,” John Quigley, professor emeritus at the Moritz College of Law of Ohio State University, told Consortium News. “But there was probably sufficient statement by [South Africa] that it thought Israel was committing genocide, and sufficient statement by Israel that it was not committing genocide for there to be a ‘dispute” between the two.'”

Quigley added, “If the court wants to avoid giving provisional measures, it could use this.” He made clear, however, that he thought this was unlikely to happen. 

Analyst Alexander Mercouris concurred. He told CN: 

“In a sane world it should not defeat the claim.  After all, in what sense has Israel been prejudiced? And given that the case is about genocide there is a strong case for acting with urgency.  However if the Court wants to find some way out of hearing the case, this lapse has provided it.   

If the Court were to take this view, South Africa would have the option of requesting the Israeli response, and then re-filing, either when Israel provided its reply or, in the event that Israel inordinately delayed its reply, when that became clear.”

American academic Norman Finkelstein, told an interviewer: “It will completely discredit the Court if they issue a decision — we have decided not to pursue this case of genocide because we don’t think there is a dispute. That just can’t work.” 

Francis Boyle, a professor of international law at the University of Illinois Urbana-Champaign, represented Bosnia-Herzogovina at the ICJ where he brought a case of genocide against Yugoslavia in 1993. 

“To the best of my knowledge the [Yugoslavs] did not know of my genocide lawsuit until the Registrar informed them of it,” Boyle said in an email. “Again, this created no problems for me with the Court on winning my first Order of Provisional Measures of Protection on April 8 [1993].” 

Boyle added that Bosnia’s then president, Alija Izetbegovic was at the time “pretty busy negotiating” the Vance-Owen peace deal at U.N. headquarters in New York. “I don’t think he said anything about my genocide lawsuit to the [Yugoslavs] there before I sued them.” 

Thus the fact that Sarajevo and Belgrade never directly disagreed about a genocide claim did not affect the Court’s decision to issue provisional measures against Yugoslavia. 

In an article published on Consortium News on Sunday, former British diplomat Craig Murray, who was in the public gallery for both days of the hearing, wrote that simply refusing to respond to an allegation of genocide cannot become a way for a nation to continue committing it with impunity. He wrote:

“The case could be technically invalid, and then [the judges] would neither have to upset the major Western powers nor make fools of themselves by pretending that a genocide the whole world had seen was not happening. For a while, they looked visibly relieved.  Israel is hoping to win on their procedural points about existence of dispute …

The obvious nonsense [Israel] spoke about the damage to homes and infrastructure being caused by Hamas, trucks entering Gaza and casualty figures, was not serious. They did not expect the judges to believe any of this. The procedural points were for the court. The rest was mass propaganda for the media.”

Murray added:

“I am sure the judges want to get out of this and they may go for the procedural points. But there is a real problem with Israel’s ‘no dispute’ argument. If accepted, it would mean that a country committing genocide can simply not reply to a challenge, and then legal action will not be possible because no reply means ‘no dispute’. I hope that absurdity is obvious to the judges. But they may of course wish not to notice it…”

Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and other newspapers, including The Montreal Gazette, the London Daily Mail and The Star of Johannesburg. He was an investigative reporter for the Sunday Times of London, a financial reporter for Bloomberg News and began his professional work as a 19-year old stringer for The New York Times. He is the author of two books, A Political Odyssey, with Sen. Mike Gravel, foreword by Daniel Ellsberg; and How I Lost By Hillary Clinton, foreword by Julian Assange. He can be reached at [email protected] and followed on Twitter @unjoe

54 comments for “Technicality Could Sink Genocide Case v Israel

  1. Joseph Tracy
    January 19, 2024 at 21:01

    One of the repeated assertions in the article is that the judges on the court want out of this case, want a”way for the Court to escape without having to decide” . I am dumbfounded that a court and its judges, created to handle this very type of issue could have thought it would never face such questions or the political crossfire that comes with such issues. From such people one expects profound legal expertise and depth, moral balance and courage, and a deep commitment to the equal application of law. Are those appointed to this very task going to shame their own calling and obligation and make a mockery of the concept of accountability for a government that declares it will expel or kill an entire population of 2.3 million with no distinction between civilian and soldier and then proceeds to do so exactly as they said? What are they there for?
    The nations that support Israel already openly mock the idea of representative government because the majority of their citizens want a cease fire and are libeled for saying so by their own government.

  2. GC
    January 18, 2024 at 15:06

    Lets just admit it that Israel is a nasty lying land grabbing blood thirsty thieves who thinks the world owes them something. The US condones their behavior and keeps shoveling money and weapons to them. US should be so kind to it’s own citizens. Cut off the funding and Israel will stop trying to take over the middle east with bombing and genocide. Shame on the US.

  3. Cynical Rex
    January 18, 2024 at 12:58

    The level of discourse in the comments and articles here is extremely astute and valuable, thank-you to all.

    I do not share a common belief that the courts should be used to force governments to follow their own laws, essentially governing by judicial fiat. I understand the desire to see the courts as bastions of reason, who decide based on moral and ethical reasoning, and can be used by the public to discipline their own govts. However, courts are political in cases like this, where the judges are under direct pressure from govts or have to weigh the personal consequences, such as de-legitimizing the court or judges facing persecution, by making a certain decision.

    I understand the ICJ rulings are not enforceable, and that the US can continue to veto a ceasefire. As others have noted, an ICJ ruling in favor of South Africa would be a rallying point for any other nation to challenge Israel, and perhaps is the ultimate goal of cases like this: to boost the moral standing of one side and increase outside actions that will enforce the judgement, when the courts or institutions like the UN themselves lack the power to do so.

    Like others, I want to see this court rule that Israel is guilty of genocide, but believe it’s more likely Israel, supported by the US, will continue its ethnic cleansing operation in Gaza, push the Palestinians out, and move on to the West Bank. The Zionist Nazis, as another commenter called them, are unlikely to get an opportunity like this again.

      January 18, 2024 at 23:48

      ICJ rulings are enforceable by the UN Security Council under Chapter 7 with sanctions and even military force, but the US would undoubtedly veto such action.

  4. Horatio
    January 18, 2024 at 11:39

    One wonders whether Nazi Germany would have been more successful if their actions were submitted to the court. I think the nazis would have been more successful considering the propaganda they used to counter the charge of genocide. Besides, by my recollection the term anti-semitic didn’t exist.

  5. Nathan Mulcahy
    January 18, 2024 at 09:49

    Technicality aside, this process is nothing short of a case for or against the credibility of UN and of international law.

    I hope that the judges are aware of their responsibility.

  6. michael888
    January 18, 2024 at 07:14

    Israel and the US routinely flaunt international law, then hypocritically push to have it applied to others.

    Essentially these “rules of war” requiring much diplomatic effort and money are worthless.

    A good example:


  7. Carl Zaisser
    January 18, 2024 at 05:54

    Several times during the Israeli presentation at ICJ we heard their speakers refer to the “robust legal system” in Israel. Well, in Israel ‘proper’, an apartheid legal structure has existed since the Basic Laws in 1948, as explained in an exacting analysis of those laws by Israeli historian Uri Davis in “Apartheid Israel”.
    In the Israeli occupied territories, forget it. Here is the blurb on the back of the DVD “The Law in These Parts” about that ‘justice’ system. I HOPE that the ICJ judges are aware of BOTH the Basic Laws apartheid system and the military justice system in the OPT. If so, they can tick off these Israeli statements and add them to the long list of lies Israel made in its presentation.
    “Winner of the documentary Grand Jury Prize at the Sundance Film Festival, The Law in These Parts is a gripping and revelatory investigation into the military legal system put in place by Israel over four decades ago to govern the occupied Palestinian territories – the repercussions of which are felt to this day by both sides.

  8. Beverly
    January 18, 2024 at 00:47

    Weaseling your way out of a genocide charge by not having responded to the plaintiff’s repeated efforts, including withdrawing the ambassador, to engage in a dialogue to address the issue of genocide would be stereotypical …ish legal pretzel twisting.

  9. January 17, 2024 at 19:03

    Will the ICJ buy Israel’s argument that because it withdrew its ambassador from South Africa there could be no dispute regarding the genocide between South Africa and Israel because Israel could not have received it?

    Israel is essentially arguing that if a nation recalls all of its ambassadors it can do any genocide it wants with no international law recourse being possible. This is plainly ridiculous and one hopes that the ICJ takes this legal maneuver and gives it the treatment is deserves.

  10. Joy
    January 17, 2024 at 18:56

    I think the ICJ is currently in process of deciding the genocide case brought by Gambia against Myanmar, which raised similar jurisdictional issues, i.e.., lack of dispute between the parties, which the court found unpersuasive. “the Court observed that for a dispute to exist, the two parties must hold opposite views on the matter.[17] Any factual or legal disagreement or conflicting legal views or conflicts interests could suffice for meeting the threshold of legal disputes as per the judgments of this line of cases.” hxxps://

    It beggars beief for the court to decide it has jurisdiction in one case, based on the same claim, and deny it in a subsequent one. I would be astonished if they did that. That doesn’t mean they might not find some other technicality to get out of this uncomfortable situation, but I think it won’t be this, as it would totally eviscerate the Geneva Conventions, and render their current case between Gambia and Myanmar invalid.

  11. Thoran
    January 17, 2024 at 18:46

    South Africa is a member of the African Union, among other groups. If, with South Africa as a signatory to the letter, the group has issued any letter of warning to Israel re: genocide which Israel has rebuffed in words or actions, wouldn’t that be enough to show a bilateral dispute exists?

    So too any UN votes or resolutions about Israel’s possible/alleged genocidal actions in Gaza. A simple “Yes” vote by South Africa on a GA measure and a “No” by Israel (or the other way around) would show a clear dispute.

    • Em
      January 18, 2024 at 10:34

      Re: Mass Delusions of Grandeur

      In this now volte-face realty, Israel has come to regard itself as the epitome, international nation-state for anti-Ethnic Cleansing!

  12. SH
    January 17, 2024 at 18:38

    Hmm, there must be a “dispute” between 2 States – the 2 States are SA and Israel – “dispute” SA makes a good case for genocide, and Israel – what? denies it? mumble, mumble, “self defense” mumble mumble – but never denies, or refutes – the charges made – so, no “dispute”, eh?

    But in any recognized court of law, which the ICJ is, recognized by both countries, when the “plaintiff”, in this case, SA, makes a credible, well documented charge, and the defendant, in this case, Israel – doesn’t deny the charge, offering instead a “defense” of self defense, which is no allowable defense for genocide – the usual course is – Summary Judgement in favor of the – plaintiff, no?

  13. Sam F
    January 17, 2024 at 18:28

    Other states with existing disputes with Israel could readily join the ICJ case:
    1. Lebanon, regarding the Golan, invasion, and missile attacks;
    2. Syria, for missile attacks;
    3. Turkey, for supporting Kurdish militants;
    4. Jordan, Egypt, Lebanon, et al, for causing millions of refugees;
    5. Iraq, for tricking the US into invading (see Bamford’s Pretext for War);
    6. Iran, for attacking their interests and supporting militants there.
    The list includes the entire Mideast. It is a mystery that have not joined the ICJ action.

  14. incontinent reader
    January 17, 2024 at 18:19

    I am not privy to the ICJ procedures, but this seems to be a standing or ripeness issue, but if permissible, perhaps as many countries as can unite on this issue should create an actionable dispute with Israel and force this case back into the ICJ and then with its plethora of plaintiffs eviscerate that argument and put real pressure on the Court.

  15. Sam F
    January 17, 2024 at 18:17

    South Africa can readily provide proof to ICJ of a dispute between the nations:
    1. Show evidence of government donation to Hamas or the Houthis (for noble purposes);
    2. Prohibit national trade with Israel, default on debt to Israel, and foreclose on debt of Israel;
    3. If all else fails, send a SWAT team to Gaza to defend hospitals, and provide videos to the ICJ.
    Or (perhaps with others) they could summon the courage to declare a limited offensive against Israel.

  16. Will Durant
    January 17, 2024 at 17:26

    The world beyond the court can render its own judgment by economically and diplomatically isolating Israel. Even if Israel wins on a technicality the case brought by SA is ironclad and will continue to indict Israel long after the ICJ proceedings. The real question is whether the rest of the world will use an Israeli win on a technicality as cover to continue business as usual with an openly racist, supremacist, apartheid ethnoreligious state. The wider world awaits not only the verdict at the Hague but the greater verdict and actions of a world community of nations that has been observing genocide and ethnic cleansing in real time. It may be the defining issue of our times. Sometimes I like to imagine the framers of the Geneva Conventions and the Genocide Convention looking on. Can one doubt that they would be outraged and saddened by the sophistry and hypocrisy of the so-called “democracies” of our day in allowing and enabling something like the humanitarian disaster in Gaza?

    • Rebecca
      January 18, 2024 at 06:09

      “whether the rest of the world will use an Israeli win on a technicality as cover to continue business as usual with an openly racist, supremacist, apartheid ethnoreligious state”

      Need you even ask? It’s up to us to ensure it doesn’t.

    • michael888
      January 18, 2024 at 07:33

      Even BDS has effectively been blocked by most US states, claiming it is illegal due to “anti-Semitism” and “national security”. SCOTUS has ruled repeatedly that boycotts are “free speech”, but of course this is Israel, and
      it seems no one will take anti-BDS laws to court.

      No doubt the same or worse is happening in the EU countries and Australia/ NZ, who must kowtow to the Zionists and their ethnic cleansing or lose their jobs

  17. Julie Stroeve
    January 17, 2024 at 17:06

    No dispute? Surely it jests.

  18. David Casso
    January 17, 2024 at 15:47

    It sounds to me like Israel is admitting there is no dispute over the fact that they are committing genocide.

    • WillD
      January 17, 2024 at 21:42

      Yes, by focussing on trying to wriggle out on a technicality. Israel knows that everyone knows that it is guilty, so why try to defend the case and fail – far better to get the case thrown out on a technicality and avoid the shame and embarrassment of a guilty verdict.

      Nobody will be surprised if it the case is dismissed on the technicality, but it won’t change global opinion of Israel’s guilt.

  19. Vera Gottlieb
    January 17, 2024 at 15:08

    I have been boycotting israeli products for a very long time. And I shall continue to do so in the forseeable future. The country and citizens must be SHUNNED the world over. Frankly, it doesn’t surprise me if the Zionist Nazis find a way to wiggle out of this. A very dark chapter in humanity’s history.

    • Rebecca
      January 18, 2024 at 06:13

      Unfortunately, as with most consumer boycotts, the Israeli one has little effect. Palestine Action’s courageous work shows a more effective method, but our political and economic system known as capitalism places profit before all other matters including genocide.

    • Tim N
      January 18, 2024 at 09:12

      They will, and will do a victory lap, so to speak, which will be covered in the Western press as vindication of Israel. Israel will eventually fail, as a state and as an idea, and so will its patron, the US. In time.

  20. jjc
    January 17, 2024 at 13:18

    Unfortunately for the judges, there may be a personal cost for doing the right thing (for instance, the United States has “sanctioned” officials for votes or rulings unfavourable to the hegemon, which has included asset seizures and travel bans). Regardless, reliance on a technicality, in this particular case, will seriously damage the integrity of the court as an international institution. The shocking casualty numbers from Gaza as of the time of last weeks’ hearings can be measured. Should they significantly spike in the wake of a technical ruling, particularly due to lack of aid, it will clearly be seen as the court’s responsibility.

    Beyond the legal arguments, there is wide understanding that the purpose of this filing was to find some way to compel a ceasefire, as the UNSC and UNGA are unable to do so. That is the matter of the utmost urgency.

    When the time comes for the day-after post-mortem, Israel will likely find itself in a similar isolated and boycotted position as South Africa in the 1980s – as that will be the only means to compel it to live up to the original concepts regarding its origin as a state. That said, the disastrous response of the Biden administration should be front and centre for condemnation as it repeatedly failed to foresee results and consequences, and rashly fuelled the fires. The notion that when this ends everything will return to “normal”, as seems to be the administration’s position, is foolish in the extreme.

    • Tim N
      January 18, 2024 at 09:20

      The “original concepts” of the Israeli State are showing themselves in this Genocide. This was inevitable; Israel can’t exist outside of the subjugation and destruction of Palestinians. They know this. The only way out is the end of Israel and a single state in the region.

  21. Randal Marlin
    January 17, 2024 at 12:14

    So, in the unlikely event that Israel were to say: “Yes, we agree with South Africa that we are committing genocide,” the World Court would be powerless to do anything?
    The mind boggles.
    On the other hand, if Israel is silent, does that amount to assent? That reminds me of Thomas More’s response to Cromwell, in “A Man for All Seasons.”
    Cromwell: Yet how can this be? Because this silence betokened, nay, this silence was, not silence at all, but most eloquent denial!
    More: Not so. Not so, Master Secretary. The maxim is “Qui tacet consentiret”: the maxim of the law is “Silence gives consent.” If therefore you wish to construe what my silence betokened, you must construe that I consented, not that I denied.
    Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?
    More: The world must construe according to its wits; this court must construe according to the law.
    A thorny problem for the World Court, indeed.
    Much as I oppose Cromwell and favour Thomas More, I seems to me that the Cromwell interpretation might be useful for helping Gaza escape the continuation of the disasters visited upon it by Israel. Israel’s denial of South Africa’s claims of genocide would support the claim that there is a dispute between the two countries.
    Maybe the 1798 case of Fowler v. Padget could help the World Court avoid the legal maxim cited by Thomas More. That bankruptcy case led the judge to say, and I cite from memory, that he would given the relevant legal words involved any construction allowable that would avoid an injustice.

    • Caliman
      January 17, 2024 at 13:42

      Agree … that a technicality would be used to continue a massive injustice and murder of innocents seems quite depraved and the very opposite of the purpose of an ICJ.

      As I’ve argued before, the case here before these judges is not whether or not Israel has/is conducting genocide and ethnic cleansing; anybody can see that. The case is whether the UN/World Court is going to do anything about it.

  22. JonnyJames
    January 17, 2024 at 12:05

    Some great observers and experts are cited in this article from Joe Lauria: Prof Frances Boyle, John Quigley, Alexander Mercouris, Norm Finkelstein, Craig Murray…
    Thanks for this very informative piece.

    Sadly, even if this case is not thrown out on a technicality and a decision was made, there is no way to enforce it. The US (Israel) has veto power at the UNSC and can simply ignore the law, as has been done many times in the past. The US could illegally “sanction” or arrest anyone who tried to enforce any decision against Israel (or the US).

    However, one thing is becoming clear: the ability of the US to ignore and override the will of the Global Majority is diminishing quite quickly.

    And of course, future history books (if humans survive, that is) will not view the US/UK/Israel very favorably. The governments of these countries are responsible for some of the worst atrocities in modern history.

    • Caliman
      January 17, 2024 at 13:46

      I disagree that the determination would lack enforcement. Certainly no one will be able to militarily force USISRAEL to stop the killing and occupation. However, armed with a determination from the ICJ, citizens in nations subject to the ICJ can demand their countries stop:
      – Arming Israel;
      – Trading with Israel;
      – Supporting Israel diplomatically or in any other way.

      An embargoed and isolated Israel may begin to see the error of its way and begin making the accommodations necessary to become a normal nation eventually.

  23. Randal Marlin
    January 17, 2024 at 12:00

    So, in the unlikely event that Israel were to say: “Yes, we agree with South Africa that we are committing genocide,” the World Court would be powerless to do anything?
    The mind boggles.
    On the other hand, if Israel is silent, does that amount to assent? That reminds me of Thomas More’s response to Cromwell, in “A Man for All Seasons.”
    Cromwell: Yet how can this be? Because this silence betokened, nay, this silence was, not silence at all, but most eloquent denial!
    More: Not so. Not so, Master Secretary. The maxim is “Qui tacet consentiret”: the maxim of the law is “Silence gives consent.” If therefore you wish to construe what my silence betokened, you must construe that I consented, not that I denied.
    A thorny problem for the World Court, indeed.
    Much as I oppose Cromwell and favour Thomas More, I seems to me that the Cromwell interpretation might be useful for helping Gaza escape the continuation of the disasters visited upon it by Israel. Israel’s denial of South Africa’s claims of genocide would support the claim that there is a dispute between the two countries.
    Maybe the 1798 case of Fowler v. Padget could help the World Court avoid the legal maxim cited by Thomas More. That bankruptcy case led the judge to say, and I cite from memory, that he would given the relevant legal words involved any construction allowable that would avoid an injustice.

    Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?

    More: The world must construe according to its wits; this court must construe according to the law.

  24. Renate
    January 17, 2024 at 11:25

    The law and justice are not the same thing. Technicalities have priority and justice may take second place and maybe not at all.

    • mary-lou
      January 17, 2024 at 14:13

      thank you for these words of hope and inspiration (sarc).

  25. Steve
    January 17, 2024 at 11:23

    Israel will continue its murderous spree whatever the verdict. However, they cannot dispute that a charge of genocide has been raised. Notification that the world is watching and knows what’s going on. They cannot wash this blood off of their hands.

  26. Philip Reed
    January 17, 2024 at 11:10

    The relevance of the ICJ is at stake if they decide to dismiss a case as serious as this one is on a technicality.
    Even if they decide to take the cowardly route , an immediate refiling after a proper notice of dispute is delivered to Israel should be allowed. Thus any obvious procrastination in Israel’s response to the dispute should be clear proof of Israel’s intent to further carry on with its genocidal actions in defiance of the clear facts on the ground and in officialdoms statements , for a finding of genocide.

  27. Richard L Romano
    January 17, 2024 at 10:55

    Dismissing the case on a lack of jurisdiction seems appropriate. This the perfect result. We can’t do anything. Our hands are tied. Sorry.

  28. ikester8
    January 17, 2024 at 10:35

    I don’t imagine that anyone committing genocide would necessarily entertain a discussion about this from someone wanting them to stop. That seems obvious to me, and I think it would to the Court as well, no matter how interested they were in the procedural possibility. Not answering such accusations would then result in a “Get Out of Jail Free” card, which is absurd on its face. Besides, Israel should well have known something like this was coming, although they probably didn’t expect a onetime ally like South Africa to do it.

    • bruce edgar
      January 17, 2024 at 15:40

      Bingo. Getting out of jail free as a result of not responding to an accusation, would be a travesty. This whole thing need not be triggered by the nicety of a dispute. This is actually a request for an investigation, among other things.

  29. Hansrudolf Suter
    January 17, 2024 at 10:32

    Not so, says Nasreen Rajab-Budlender

    Has South Africa Persuaded the ICJ to Halt Israel’s War on Gaza? | The Wire Live |
    Karan Thapar Interveiws Nasreen Rajab-Budlender

  30. Jeff Harrison
    January 17, 2024 at 10:29

    I predicted they would do nothing. I stand by that prediction. The League of Nations failed because they could not control the major powers. The UN has already failed for precisely the same reason.

  31. January 17, 2024 at 10:28

    Does it really make any difference? Israel will ignore it, the US doesn’t recognise the IC J anyway and it’s what the the US does that really count here. The best one can say is perhaps in the ‘court of public opinion, Israel is condemned. I think the correct term is impunity, I’m sorry to say. In any case, I think Israel’s Gaza atrocity is a well planned ‘diversion ‘ from the lost war in Ukraine.

    • Philip Reed
      January 17, 2024 at 11:26

      I think you’re confusing the ICC with the ICJ. The US is a signatory to the ICJ. Indeed one of the judges is from the US.
      Any ideas as to that judges’s decision ? I don’t agree it’s a diversion from Ukraine since that diversion was quietly happening over the past six months after the failed counteroffensive and the relative silence of MSM via the Pentagon on project Ukraine .

  32. hetro
    January 17, 2024 at 10:19

    More generally on the case, Patrick Lawrence makes this interesting comment:

    “I find the politics discouraging. They look like this. The five members of the U.N. Security Council—the U.S., Britain, France, China, Russia—are all represented on the ICJ’s 15–member bench. Finkelstein, interestingly, is skeptical that the latter two will support the South African case: Russia faces a pending ICJ case having to do with its conduct in Ukraine; China is accused of genocide in the case of Uighurs. “Do they want to open up the Pandora’s box?” Finkelstein asks. “I would say very unlikely.” The South Africans need 8 of the 15 judges to vote with them. Massaging the arithmetic, Finkelstein reckons they will come up short one vote—too many others either siding with Israel or compromised in one or another way as Russia and China appear to be.”


      January 17, 2024 at 11:01

      All parties to the Genocide Convention, and that includes South Africa, are obliged to act to prevent genocide. That gives South Africa standing. The U.S., also a states party, is under the same obligation.

  33. John Zeigler
    January 17, 2024 at 10:15

    There is the matter of standing. I do not know how that works in this court, but South Africa’s hand would surely be strengthened by the presence of Palestinians from Gaza to lodge the obvious complaint before the court since they would be some of the ones with unquestionable standing in the matter.

  34. hetro
    January 17, 2024 at 10:14

    “. . . Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.”

    It would seem this public denial on 6 December following SA’s assertions could be construed as acknowledging a dispute? Israel here is certainly disputing the genocide charge if not doing so in some technical procedure.

    Anyway, if Israel pursues this ridiculous technicality, it shows the desperation of their case. Would it not constitute admission that they are NOT disputing the genocide accusations?

  35. Dfnslblty
    January 17, 2024 at 09:26

    Because No Dispute exists ON THE PART of israel

    Does NOT mean that a dispute is not active.

    For the court to dismiss this accusation would be fallacious and would be a demonstrable proof of outside pressure from usa and others.

  36. JB
    January 17, 2024 at 09:17

    There is no basis for a claim of certainty that the “judges want t get out of this”. If there is, it was not given.

    There is, also, no question that there is a dispute between SA and Israel on this matter.

    Israel, of course, had to make some kind of arguments, because it has literally nothing to counter the evidence of its clear-cut commission of genocide in Gaza.

    Trying to make the case go away due to technical points is not going to work. SA arguments about the existence of a dispute are strong and clear. The interests of justice, an important legal concept, also require the case to go forward.

    By the way, dismissing THIS case with THIS kind of daily evidence of genocide in Gaza, on a technical matter, or for any reason, would be the end of the relevance and authority of the ICJ. That is certain.

    It is also certain that there will be a judgment that Israel has committed genocide in Gaza.

  37. susan
    January 17, 2024 at 08:17

    Technicality?? Absolutely absurd!

  38. jamie
    January 17, 2024 at 06:30

    I think it is absurd that in determining in whether there is been a genocide or not, the people on the ground (UN officials, NGOs, etc.) have not beeb heard, the Palestinian people who has been targeted have not been heard. The voices of the Palestinian people should have resounded in the ICJ’s room, their side of the story should have been heard. Not the voice of some “experts” who know nothing about the putrescent smell of death.
    That is a reason why the current “technocratic” system of international laws made by the rich and powerful for the rich and powerful must be dismantled. The “hierarchization” of justice must end. Keeping this system is inhumane and absurd.

    • Selina Sweet
      January 17, 2024 at 10:19

      Right on jamie! And were the Court to dismiss on the basis of a technicality….when all the world is vicariously bludgeoned by the Israelis with the help from their ever amigo Biden, the moral vacuity prejudiced toward the Empire & Friends of the global leadership will be hung out for all to see….such emptiness! pitilessness! ….a memory seared into consciousness…becoming a motive for the rise of the new….

      • JohnB
        January 17, 2024 at 11:40

        .. a general strike. It began days ago in WB and began to spread,,

        Maybe an unfavorable Court decision might be what it takes to motivate 98 percent of 8 billion.. rage may not be a good commonality for us but a formal decision that conveys: “you don’t matter”?

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