South Africa has requested the International Court of Justice (ICJ) to take an interim measure aimed at stopping Israel from committing acts defined as “potential genocide”. The primary action requested is for the court to call for a halt to combat operations. Initially, South Africa’s plea was not met with nearly as much urgency and attention as it is now. In recent days, the claim before the ICJ has taken on new urgency. As a result, other countries are also issuing statements in support of South Africa. On its part, Israel has announced it will be defending itself before the ICJ. In doing so, it has decided to part from a long-standing policy of trying to boycott the court.
Although global justice tends to be very slow, interim justice moves at a slightly faster pace. As a result, there has been a trend of interim measures at the ICJ, with 11 being indicated in the past decade, a great increase from the previous 50 years of the court’s existence. The first hearing for this case is set for the 11th ad 12th of January. Expectedly, the court will then issue a provisional ruling within weeks. Interim measures are meant to stall the current dispute between the parties, both for the sake of the situation itself and to preserve the integrity of a future final judgement. In this case the goal is to stop military action in Gaza. Although the Court is very authoritative on the international stage, and it has confirmed that such measures are deemed binding on the parties involved, it is also worth mentioning that only in 50% of cases they have been complied with. Examples of non-compliance include the cases of Ukraine v Russia, Gambia v Myanmar, and US v Iran, where the losing party simply disregarded the court’s ruling.
In fact, there is no mechanism in place for enforceability; the court relies on voluntary compliance. Such voluntary compliance, however, is unlikely when the party strongly disagrees with the findings and has a strong incentive to defy it. Israel might currently fall in this category. If an adverse ruling was to be given, it would undoubtedly detrimentally impact Israel’s reputation, thus potentially leading it to decrease military activity, but it is arguably improbable that it would refrain it from continuing the war. Importantly, Israel’s decision to defend itself before the court, somehow binds it to acknowledge a potential adverse finding, if not to comply with it. Nonetheless, It is worth noting that such an adverse ruling is far from an obvious outcome.
The claim submitted by South Africa is tailored to one objective: to prove Israel’s genocidal intent. Relying on the provisional measures issued by the court in Gambia v Myanmar (2020), South Africa’s lawyers argue that the threshold is met and 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 nation, racial and ethnical group.”. In reaching this conclusion, plenty, arguably one-sided evidence was adduced. Mainly the claim relies on three factors: the humanitarian crisis in Gaza, the alleged targeting of Palestinian cultural life and statements made by Israeli officials. In relation to the latter, South Africa provided examples of what is defined as “direct and public incitement to commit genocide by Israeli state officials”, including some far-right ministers’ call to resettle Palestinians outside Gaza. South Africa is presumably relying on this kind of evidence to convince the judges that Israel, as of now, believes that its security is dependent on the removal of Palestinians from Gaza. Taking this view may be facilitated by Israel’s lack of plans for when the war is over, which throws a shadow on its collective intention behind the war. Those who believe the interim measure will be granted rely on the fact that the evidence adduced might be sufficient to meet the lower evidentiary threshold required for an interim measure as opposed to a final ruling.
In the proceedings, South Africa argues, the court is not required to determine whether Israel’s actions constitute a violation of the Genocide Convention. For that to be the case, it would have to be proven that Israel’s intent is to “destroy, in whole or in part, the group as such”. Rather, the court’s assessment during the interim measure proceedings is aimed at ascertaining whether the acts complained of are capable of falling within the provisions of the Genocide Convention. Thus, a genocidal intent does not have to be proven to be the sole intent behind the accused party’s actions. Nonetheless, it is argued that South Africa’s claim could be undermined by the relatively little weight given to the context in which Israel’s actions are taking place and their declared aim. When these are considered, the balance is slightly less obviously skewed towards a finding of genocidal intent.
The casus belli, Hamas’ attacks on Israeli civilians, will have to be considered by the court, thus Israel’s action will first have to be framed in the context of self-defence, regardless of whether it is concluded that the use of force was disproportionate. It will also have to consider Israel’s declared enemy, which is Hamas, not Palestinians at large. Weight will also have to be given to the peculiar difficulties of fighting an enemy which is not as well-determined, and which has embedded itself in the civilian population. In fact, Israeli’s actions, although may very well amount to war crimes, are somehow also the reflection of Hamas’ failure to protect civilians, which, under international law, is a responsibility that lies with both parties in a conflict. Some consideration will also have to be given to Israel’s calls for evacuation, the secured humanitarian corridors and their attempts at minimising civilian casualties. This is so regardless of whether they have ultimately been ineffective or merely performative. Finally, the court will have to evaluate the evidence of Israeli officials countering the view expressed by those reported by South Africa.
When all of this is considered, it is not as obvious as some might think whether the court will be able to find the potential for genocide, which requires more than a great number of civilian casualties. The required specific genocidal intent is arguably not as undeniably proven as South Africa argues. Therefore, ultimately, although Israel might more determinately be found guilty of other war crimes, as it probably will be in the future, whether its actions will be considered genocide under the Genocide Convention is not as clear cut.
By The European Institute for International Law and International Relations
