The Netanyahu regime and its chief patron, the United States, understand the magnitude of South Africa’s ICJ application, which will be heard this week, writes Marjorie Cohn.
The International Court of Justice, principal judicial organ of the UN, holding a public hearing in 2022. (UN Photo/Frank van Beek)
For nearly three months, Israel has enjoyed virtual impunity for its atrocious crimes against the Palestinian people.
That changed on Dec. 29 when South Africa, a state party to the Genocide Convention, filed an 84-page application in the International Court of Justice (ICJ, or World Court) alleging that Israel is committing genocide in Gaza.
South Africa’s well-documented application alleges that
“acts and omissions by Israel … are 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 and ethnical group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
Israel is mounting a full-court press to prevent an ICJ finding that it’s committing genocide in Gaza. On Jan. 4, the Israeli Foreign Ministry instructed its embassies to pressure politicians and diplomats in their host countries to make statements opposing South Africa’s case at the ICJ.
[Consortium News will provide live coverage of the two-day hearing Thursday and Friday, 10am to 1pm each day in The Hague, 4-6 am EST.]
In its application, South Africa cited eight allegations to support its contention that Israel is perpetrating genocide in Gaza. They include:
(1) Killing Palestinians in Gaza, including a large proportion of women and children (approximately 70 percent) of the more than 21,110 fatalities and some appear to have been subjected to summary execution;
(2) Causing serious mental and bodily harm to Palestinians in Gaza, including maiming, psychological trauma, and inhuman and degrading treatment;
(3) Causing the forced evacuation and displacement of about 85 percent of Palestinians in Gaza — including children, the elderly and infirm, and the sick and wounded. Israel is also causing the massive destruction of Palestinian homes, villages, towns, refugee camps and entire areas, which precludes the return of a significant proportion of the Palestinian people to their homes;
(4) Causing widespread hunger, starvation and dehydration to the besieged Palestinians in Gaza by impeding sufficient humanitarian assistance, cutting off sufficient food, water, fuel and electricity, and destroying bakeries, mills, agricultural lands and other means of production and sustenance;
Protester at a Palestinian solidarity demonstration in London, Oct. 28, 2023. (Alisdare Hickson, Flickr, CC BY-SA 2.0)
(5) Failing to provide and restricting the provision of adequate clothing, shelter, hygiene and sanitation to Palestinians in Gaza, including 1.9 million internally displaced persons. This has compelled them to live in dangerous situations of squalor, in conjunction with routine targeting and destruction of places of shelter and killing and wounding of persons who are sheltering, including women, children, the elderly and the disabled;
(6) Failing to provide for or ensure the provision of medical care to Palestinians in Gaza, including those medical needs created by other genocidal acts that are causing serious bodily harm. This is occurring by direct attacks on Palestinian hospitals, ambulances and other healthcare facilities, the killing of Palestinian doctors, medics and nurses (including the most qualified medics in Gaza) and the destruction and disabling of Gaza’s medical system;
(7) Destroying Palestinian life in Gaza, by destroying its infrastructure, schools, universities, courts, public buildings, public records, libraries, stores, churches, mosques, roads, utilities and other facilities necessary to sustain the lives of Palestinians as a group. Israel is killing whole families, erasing entire oral histories and killing prominent and distinguished members of society;
Gaza, Oct. 7, 2023. (Ali Hamad of APAimages for WAFA, Wikimedia Commons, CC BY-SA 3.0)
(8) Imposing measures intended to prevent Palestinian births in Gaza, including through reproductive violence inflicted on Palestinian women, newborns, infants and children.
South Africa cited myriad statements by Israeli officials that constitute direct evidence of an intent to commit genocide:
“Gaza won’t return to what it was before. We will eliminate everything,” Israel’s Defense Minister Yoav Gallant said. “If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.”
Avi Dichter, Israel’s minister of agriculture, declared, “We are now actually rolling out the Gaza Nakba,” a reference to the 1948 ethnic cleansing of Palestinians to create the state of Israel.
“Now we all have one common goal — erasing the Gaza Strip from the face of the earth,” Nissim Vaturi, the deputy speaker of the Knesset and member of the Foreign Affairs and Security Committee proclaimed.
Israel’s Strategy to Defeat South Africa’s Case
U.S. President Joe Biden and Israeli Prime Minister Benjamin Netanyahu meeting in Tel Aviv on Oct. 18, 2023. (White House, Cameron Smith)
Israel and its chief patron, the United States, understand the magnitude of South Africa’s ICJ application, and they are livid.
Israel usually thumbs its nose at international institutions, but it is taking South Africa’s case seriously. In 2021, when the International Criminal Court launched an investigation into Israel’s alleged war crimes in Gaza, Israel firmly rejected the legitimacy of the probe.
“Israel generally doesn’t participate in such proceedings,” Professor Eliav Lieblich, an international law expert at Tel Aviv University, told Haaretz.
“But this isn’t a UN inquiry commission or the International Criminal Court in the Hague, whose authority Israel rejects. It’s the International Court of Justice, which derives its powers from a treaty Israel joined, so it can’t reject it on the usual grounds of lack of authority. It’s also a body with international prestige.”
[See Craig Murray: Activating the Genocide Convention; Craig Murray: Stopping Genocide and Craig Murray: A Shift Against Impunity for Genocide]
A Jan. 4 cable from the Israeli Foreign Ministry says that Israel’s “strategic goal” is that the ICJ reject South Africa’s request for an injunction to suspend Israel’s military action in Gaza, refuse to find that Israel is committing genocide in Gaza and rule that Israel is complying with international law.
“A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications,” the cable states.
“We ask for an immediate and unequivocal public statement along the following lines: To publicly and clearly state that YOUR COUNTRY rejects the outragest [sic], absurd and baseless allegations made against Israel.”
Israel’s embassy in Berlin. (Peter Kuley, Wikimedia Commons, CC BY-SA 3.0)
The cable instructs Israeli embassies to urge diplomats and politicians at the highest levels “to publicly acknowledge that Israel is working [together with international actors] to increase the humanitarian aid to Gaza, as well as to minimize damage to civilians, while acting in self defense after the horrible October 7th attack by a genocidal terrorist organization.”
“The State of Israel will appear before the ICJ at The Hague to dispel South Africa’s absurd blood libel,” Prime Minister Benjamin Netanyahu spokesperson Eylon Levy declared. South Africa’s application is “without legal merit and constitutes a base exploitation and contempt of court,” he said.
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Israel is pulling out all the stops, including disingenuous accusations of “blood libel,” an anti-Semitic trope that erroneously accuses Jews of the ritual sacrifice of Christian children.
“How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro-bono for anti-Jewish racists,” Levy added ironically. He made the astonishing claim that Israel’s military campaign to destroy Hamas in Gaza is designed to prevent the genocide of the Jews.
As the old adage goes, when you’re being run out of town, get in front of the crowd and act like you’re leading the parade.
The Biden regime rose to defend its staunch ally Israel. U.S. National Security Council spokesman John Kirby lambasted South Africa’s ICJ application as “meritless, counterproductive and completely without any basis in fact whatsoever.”
Kirby claimed, “Israel is not trying to wipe the Palestinian people off the map. Israel is not trying to wipe Gaza off the map. Israel is trying to defend itself against a genocidal terrorist threat,” echoing Israel’s preposterous assertion.
John Kirby in 2021. (DOD/Carlos M. Vazquez II)
Kirby’s contention that Israel is trying to prevent genocide is particularly absurd, given that since Hamas killed 1,200 Israelis on Oct. 7, Israeli forces have killed at least 22,100 Gazans, about 9,100 of whom are children. At least 57,000 persons have been wounded and at least 7,000 are reported missing. Untold numbers of people are trapped beneath the rubble.
Provisional Measures for Immediate Impact
South Africa is requesting that the ICJ order provisional measures (interim injunction) in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention.”
South Africa is also asking the court “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”
The provisional measures South Africa seeks include ordering Israel to “immediately suspend its military operations in and against Gaza” and to cease and desist from killing and causing serious bodily or mental harm to Palestinians, inflicting on them conditions of life intended to destroy them in whole or in part, and imposing measures to prevent Palestinian births.
South Africa wants the ICJ to order that Israel stop expelling and forcibly displacing Palestinians and depriving them of food, water, fuel, and medical supplies and assistance.
The judicial arm of the United Nations, the ICJ is composed of 15 judges elected for a nine-year term by the U.N. General Assembly and the Security Council. It is not a criminal tribunal like the International Criminal Court; rather it resolves disputes between countries.
If a party to the Genocide Convention believes that another party has failed to comply with its obligations, it can take that country to the ICJ to determine its responsibility. This was done in the case of Bosnia v. Serbia, in which the Court found that Serbia violated its duties to prevent and punish genocide under the Convention.
The obligations in the Genocide Convention are erga omnes partes, that is, obligations owed by a state towards all the states parties to the Convention. The ICJ has stated,
“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.”
Article 94 of the U.N. Charter says that all parties to a dispute must comply with the decisions of the ICJ and if a party fails to do so, the other party may go to the U.N. Security Council for the enforcement of the decision.
An average ICJ case from start to finish can last several years (it was nearly 15 years from the time that Bosnia first filed its case against Serbia in 1993 to the issuance of the final judgment on the merits in 2007).
However, a case can have an immediate impact. The filing of a case in the ICJ sends a strong message to Israel that the international community will not tolerate its actions and seeks to hold it accountable.
Provisional measures can be issued quickly. For example, the ICJ ordered measures 19 days after the Bosnian case was initiated. Provisional measures are binding on the party against whom they are ordered, and compliance with them can be monitored by both the ICJ and the Security Council.
Judgments on the merits rendered by the ICJ in disputes between parties are binding on the parties involved. Article 94 of the United Nations Charter provides that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.” The judgments of the court are final; there is no appeal.
Public hearings on South Africa’s request for provisional measures will take place this Thursday and Friday at the ICJ which is located in the Peace Palace in The Hague, Netherlands.
The hearings will be livestreamed from 4:00-6:00 a.m. Eastern/1:00-3:00 a.m. Pacific on the Court’s website and on U.N. Web TV. The court could order provisional measures within a week after the hearings.
Other States Can Join
South Africa’s President Cyril Ramaphosa at the U.N. General Assembly in New York, Sept. 19, 2023. (UN Photo/Loey Felipe)
Other states parties to the Genocide Convention can either request permission to intervene in the case filed by South Africa or file their own applications against Israel in the ICJ.
South Africa’s application identifies several countries that have referred to Israel’s genocide in Gaza. They include Algeria, Bolivia, Brazil, Colombia, Cuba, Iran, Palestine, Türkiye, Venezuela, Bangladesh, Egypt, Honduras, Iraq, Jordan, Libya, Malaysia, Namibia, Pakistan and Syria.
On Jan. 5, Quds News Network tweeted,
“Jordan’s minister of Foreign Affairs, Ayman Safadi, announces that his country backs South Africa’s genocide case against Israel in the ICJ. He added that the Jordanian government is working on a legal file to follow up on the case. Turkey, Malaysia, and the Organization of Islamic Cooperation (OIC) had announced that they back the case too.”
Jordan's minister of Foreign Affairs, Ayman Safadi, announces that his country backs South Africa's genocide case against Israel in the ICJ. He added that the Jordanian government is working on a legal file to follow up on the case.
Turkey, Malaysia, and the Organization of… pic.twitter.com/H5G0e7IfHK
— Quds News Network (@QudsNen) January 5, 2024
The newly formed International Coalition to Stop Genocide in Palestine, endorsed by more than 600 groups throughout the world, has convened to urge states parties to invoke the Genocide Convention.
The coalition contends,
“Declarations of Intervention in support of South Africa’s invocation of the Genocide Convention against Israel will increase the likelihood that a positive finding of the crime of genocide will be enforced by the United Nations such that actions will be taken to end all acts of genocide and those who are responsible for the acts will be held accountable.”
[See: US Citizens Push Embassies to Back SA’s Genocide Charge]
During the first week of January, delegations of “grassroots diplomats,” spearheaded by CODEPINK, World Beyond War and RootsAction, mounted a campaign across the United States urging nations to submit Declarations of Intervention in South Africa’s case against Israel in the ICJ.
Activists traveled to 12 cities, visiting U.N. missions, embassies and consulates from Colombia, Pakistan, Bolivia, Bangladesh, the African Union, Ghana, Chile, Ethiopia, Turkey, Belize, Brazil, Denmark, France, Honduras, Ireland, Spain, Greece, Mexico, Italy, Haiti, Belgium, Kuwait, Malaysia and Slovakia.
“This is the rare case where collective social pressure urging governments to support the South African case can be a sharp turning point for Palestine,” said Lamis Deek, a Palestinian attorney based in New York, whose firm convened the Palestinian Assembly for Liberation’s Commission on War Crimes Justice, Reparations, and Return. “We need more states to file supporting interventions — and we need the court to feel the watchful eye of the masses so as to withstand what will be extreme U.S. political pressure on the Court.”
Suzanne Adely, president of the National Lawyers Guild, noted, “The increasing global isolation of Israel and the U.S. and their European allies is an indicator that this is a key moment for popular movements to move their governments in the direction of taking these steps and being on the right side of history.”
Indeed, since Oct. 7, millions of people throughout the world have marched, protested and demonstrated in support of Palestinian liberation.
RootsAction and World Beyond War have created a template that organizations and individuals can use to urge other states parties to the Genocide Convention to file a Declaration of Intervention in South Africa’s genocide case against Israel in the ICJ.
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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I would contend that the chief patron of the US government is Israel and not the opposite.
For many people now, it won’t matter what the court decides – simply because there is a huge question mark over the court’s impartiality and independence from heavy western pressure. The Israelis have openly admitted that they will be putting pressure on the judges, as will the US, UK and others.
In the eyes of most of the world, Israel is guilty, if not technically of genocide, then of the mass slaughter of Palestinian civilians. men, women and children. Whether or not technically it is genocide is splitting hairs, and in the context of lives lost and human suffering, it is irrelevant.
Even if the court decides Israel is not guilty of genocide, the most likely verdict considering the international pressure, it remains a technicality, and does not absolve Israel and its complicit western partners of guilt one bit!
The evidence of the IDF targeting civilian building is overwhelming, and despite Israel’s attempt to suppress the reporting, it has leaked out.
Israel will pay for this atrocity – one way or another.
I’ve been collecting citations to information about this hearing, now online. Should anyone want to do some background reading, the outline branch about the case is here: hXXps://relativelyfreepress.blogspot.com/2023/11/the-players-gaza-v-israel.html#X89kxRvSvcnVcALKSNmbzA
Even the most zealous Zionists and their political supporters should welcome the ICJ lawsuit because it gives them a face saving out of the crisis without incurring the wrath of their donors. They can blame the cease fire on the ICJ.
Bibi and his Zionists are displaying typical psychopathic behavior – project onto others (South Africa) what you are doing.
From Marjorie’s essay:
“Now we all have one common goal — erasing the Gaza Strip from the face of the earth,” Nissim Vaturi, the deputy speaker of the Knesset and member of the Foreign Affairs and Security Committee proclaimed.
This same minister reported on today at Antiwar.com:
“I said to ‘burn Gaza.’ What does it mean to burn? To go in and rip them apart. There should be no thoughts, no considerations. The soldiers of the IDF should not think for one second and be hurt because we need to be humane,” Vaturi added.
Discussing the areas where the Israeli military ordered evacuations, Vaturi said, “We evacuated them all – we succeeded in evacuating 1,900,000 in an organized fashion, and there are 100,0000 left. I don’t think that there are any innocents there now – not now, and not when I made my statement.”
hxtps://news.antiwar.com/2024/01/10/israeli-mk-doubles-down-on-call-to-burn-gaza-says-there-are-no-innocents/
Vaturi’s comments indicate there are no innocents in Gaza; that what is being called genocide is self-defense; or that when action taken is self-defense it is not genocide.
This pluralization of all Gazans as enemy makes no distinctions whatever among military, newborns, toddlers, juveniles, pregnant mothers, women, men, infirm, elderly. It is the thinking of a savage. It is why international considerations and courts exist to attempt to stem the insane among us.
This is going to be a good acid test as to whether the ICJ is for real or just a kangaroo court designed specifically to go after the adversaries of the west.
It will be interesting and gratifying to see an arrest warrant issued for Neinyahooo.
Too bad it won’t be Biden too.
Still not sure how the ICJ could not take up the case of Iraq vs. George Bush et al.
Or Libya vs. Obama
Or Serbia vs. Clinton
Etc.
But I guess we gotta take what we can get.
I wish I could be optimistic, but as long as the US’ echo chamber is working, at least here in the States we’ll get the usual “poor little Israel” line as well as “both sides are guilty, so move on” trope. This court case simply won’t be mentioned by most propaganda outlets–always the best way to kill a story.
“The cable instructs Israeli embassies to urge diplomats and politicians …”
Bearing in mind that every U.S. Senator and many U.S. Representatives have received funding from AIPAC, one wonders if “urging” politicians includes threats to discontinue financial contributions for political campaigns.
For too many years israel has literally gotten away with murder! And for too many years the West has looked the other way. And for too many years israel has gotten away with impunity. And I still am of the opinion that RACE plays a big role…
This was a good article until I read “since hamas killed 1200 Israelis on 7th October”. Pardon me, but the dogs in the street know that the IDF killed most of those Israeli civilians, and have known for some time. This was either deliberately as per the Hannibal protocol or through sheer recklessness on the part of the trigger happy IDF, with total disregard for the lives of their own people. It’s even been admitted by certain quarters in Israel including in Israeli media, and families of dead Israeli civilians are attempting to sue their own government for the deaths of their loved ones. There have even been reports that the IDF murdered Israeli hostages who were fleeing hamas while waving white flags.
I’m frankly amazed this was not even mentioned in such a lengthy supposedly authoritative piece.
Thanks Margaret for such concern
for serious significant detail, in an
otherwise great writer
BRAVO!!! Margaret…for speaking up. With the Zionists killing so many journalists on purpose…The ‘cultured/civilized’ West still too much of a COWARD to stand up to israel….and israel burying all news that displeases it.
Margaret, you are spot on. Max Blumenthal and Electronic Intifada have undertaken very good investigations about 7 October which cast doubt on practically all Israeli (and New York Times) claims including the murder or beheading of babies and rapes of Israeli women.
Hate to quibble, but while it is definitely true that the IDF killed many, maybe most or even all Israeli civilians on Oct 7, it is also true that Hamas fighters killed the substantial number of those 1,200, constituting Israeli soldiers. Exactly how many of the 1,220 were IDF soldiers I believe has yet to be determined. It is unfortunate that you are so dismissive (i.e. “supposedly authoritative”) of Cohn because of this omission, or lack of clarity on this one point.
Resistance against an illegal occupation is a right under international law.
Yeah, that was disappointing.
We can concede this point and still point to an Israeli act of genocide, so we might as well give it to them, rather than give them some second order point to argue about. It’s still genocide, no matter how you slice it.
For many years I’ve imagined that- given it’s racist ideology and mimicry of so many Nazi horrors – the only reason the Zionist state had not enacted it’s own final solution was because the world was watching. With the arrival of it’s most overtly fascist government to date, this genocidal frenzy has been a long time coming. Israel’s ludicrous protestations and shrill denials of what is self-evident to the entire world reminds me a story related by the son of notorious Nazi doctor Joseph Mengele. Sometime in the late seventies he was contacted by his father; who had not communicated him with since childhood. The old and ailing monster, living in the last Central American country he would hide from authorities in, wished to meet his only son. Now in his twenties, the young Mengele flew to meet his father, who was living in a modest home, with the plan of waiting three days before asking him the questions that were paramount in his mind : how could he commit such unspeakable atrocities ? His father was immensely proud of his son. But when the moment arrived, Mengele looked at his son incredulously and replied, “I didn’t do those things. I tried to help the Jews. No one did more than I to help the Jews.” Israel’s arrogance of long enjoyed impunity has been replaced by fear of accountability. Hopefully, the old monster will finally and definitively be held to account for it’s savagery.
one can only hope it is effective. Israel needs to be brought to heel.
Good for South Africa for taking control and initiating cease fire in Gaza permanently and holding Isreal accountable for all the atrocoties on Gaza. Isreal has been inflicting Genocide on Gaza not only after October 7th, 2023 but for many prior years. If Isreal really wanted to eliminate Hamas Troops, then it should have been done in a strategic manner, NOT bombing the Hell out of Gaza killing over 22,000 Palestinians and wounding over 60,000. Not to mention eliminating water, Fuel, Electricity to Gaza. Also, the USA President and his Team should be ashamed of themselves, as they are just as guilty,, providing millions of dollars to Isreal for ammunition. Thank you Sourh Africa & all the other Countries that are supporting war crimes against The Leaders of Isreal.
Thank you, Marjorie Cohn, for your usual, succinct description of the International Court of Justice, both some history of the court’s origin, and nature of its jurisdiction and its proceeding. Also the 8 major allegations and request for provisional relief. I’m usually and early riser, but will make sure to set the alarm Thurs and Fri.
While I have not yet read the full complaint, all I’ve heard is how very well done it is. Do we know who was involved in drafting it? In particular, were US firms and organizations like the Center for Constitutional Rights involved?
Thanks again.
Larry McGovern
Here is a link to the full application:
hxxps://d3i6fh83elv35t.cloudfront.net/static/2024/01/192-20231228-app-01-00-en.pdf
At least one Irish lawyer is involved. Link is to an article in IrishCentral.Newsletters that names the Irish lawyer as Blinne Ní Ghrálaigh KC and lists the rest of the legal team.
hxxps://www.irishcentral.com/news/blinne-ni-ghralaigh-lawyer
(This website normally replaces the tt in https with xx. Simply replace the xx with tt, and the link should activate.)
US/Israel genocide and the world’s complacent response
is regrettably encouraged when excellent writers, with
a sharp conscience for truth, blend in dubious data:
“Hamas killed 1,200 Israelis on October 7.
More accurate is that the Israeli military fired
hellfire missiles on Israelis and intentionally
killed possible hostages, totally some 300.
Better than “Hamas killed” is to call the resistance
assault a strike at a murderously oppressive regime.
It helps to see the story from the other side.
I agree that “Hamas killed” sounds like one day they decided to kill people just for the hell of it.
The truth:
Hamas are freedom fighters who planned and executed a military mission to start the freeing the people wrongfully held captive in KZ Gaza.