Israel is facing a genocide case in international court. Could it halt the war in Gaza?
https://www.cnn.com/2024/01/09/middleeast/israel-genocide-case-world-court-gaza-mime-intl
Israel is set to appear before the International Court of Justice this week in a high stakes case that could determine the course of the brutal war in Gaza.
It is an unprecedented case. Experts say it is the first time that the Jewish state is being tried under the United Nations’ Genocide Convention, which was drawn up after the Second World War in light of the atrocities committed against the Jewish people during the Holocaust.
The South African government, a successor to the apartheid regime that was made a pariah on the international stage three decades ago, brought the case against Israel, accusing it of being in breach of its obligations under the convention in its war on Hamas in Gaza. Eliav Lieblich, a professor of international law at Tel Aviv University, told CNN the case is significant politically and legally. “An allegation of genocide is the gravest international legal allegation that can be made against a state,” he said.
South Africa has also asked the court to issue “provisional measures” ordering Israel to stop its war in Gaza, which it said was “necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people.” A provisional measure is a temporary order to halt actions, or an injunction, pending a final ruling. (a final ruling could take years)
Why is this case significant?
While the ICJ has ruled against Israel in the past, it did so through non-binding “advisory opinions” that are requested by UN bodies such as the General Assembly. This is the first time Israel is being sued in the ICJ in what is known as a “contentious case,” where states directly raise cases against each other.
In 2004, the ICJ issued an advisory opinion declaring Israel’s separation barrier in the occupied West Bank to be in violation of international law, and called for it to be torn down. Israel ignored that decision. If the ICJ eventually rules that Israel is directly responsible for genocide, it will be the first time it has found a state has commited genocide, experts said.
“This would be a significant precedent first and foremost because the ICJ never ruled, so far, that a state actually committed genocide,” Lieblich said. “The farthest it went was to rule that Serbia failed to prevent genocide by militias in Srebrenica. In this sense, such a ruling would be legally uncharted territory.” While no state has been found to be directly responsible for genocide by the court, both Myanmar and Russia have faced provisional measures in genocide cases in recent years.
All ICJ judgements are final, without appeal and binding.
But the ICJ can’t guarantee compliance. In March 2022, for example, the court ordered Russia to immediately halt its military campaign in Ukraine. Kyiv, which brought the case, disputed the grounds for Russia’s invasion, and asked for emergency measures against Russia to halt the violence before the case was heard in full.
What happens if the court orders Israel to halt the war?
Daniel Machover, a London-based lawyer and international justice expert, told CNN that a provisional measure should be a quick decision that would be taken before there is a final ruling on genocide.
South Africa, he said, only needs to demonstrate that it has standing to bring the case, has acted on its duty to prevent genocide, that there is a “plausible legal argument” that violations of the Genocide Convention are or may be taking place, and that there is a real and imminent risk that irreparable prejudice will be caused to Gaza residents before the court gives its final decision, such that the court needs to order Israel to stop the war.
Francis Boyle, an American human rights lawyer who won two requests at the ICJ under the Genocide Convention against Yugoslavia on behalf of Bosnia and Herzegovina, told Democracy Now that based on his review of the documents submitted by South Africa, he believes Pretoria will indeed win “an order against Israel to cease and desist from committing all acts of genocide against the Palestinians.”
Boyle, based on his experience in the Bosnian case, said the order could come within a week of this week’s hearing.
Lieblich doubts that Israel would cease the fighting altogether should the court issue an injunction on the war. Instead, it could attack the legitimacy of the court and its judges, “considering that some of them are from states that don’t recognize Israel.” It would also matter whether the decision is unanimous, he added. “The consequences of non-compliance might range from reputational harm and political pressure to sanctions and other measures by third states or further resolutions in the UN,” he said. “The key for Israel would probably be how its key allies would act in such a case.”
Could a ruling have implications outside Israel?
The fallout of an ICJ ruling could spread beyond Israel, according to experts. It would not only embarrass Israel’s closest ally, the US, but could also deem Washington complicit in the alleged violation of the Genocide Convention.
“Even though the South African application focuses on Israel, it has huge implications for the United States, especially President Joe Biden and his principal lieutenants,” wrote John Mearsheimer, an American political scientist. “Why? Because there is little doubt that the Biden administration is complicitous” in Israel’s war, he said.
Biden has acknowledged that Israel is carrying out “indiscriminate” bombing in Gaza, but he has also vowed to protect the country. The US has bypassed Congress twice to sell military equipment to Israel during the war. “Leaving aside the legal implications of his behavior, Biden’s name – and America’s name – will be forever associated with what is likely to become one of the textbook cases of attempted genocide,” Mearsheimer wrote.
Even if Israel ignores an order by the ICJ, there will be a legal obligation among other signatories to comply, said Machover. “So, anyone assisting Israel at that point will be in breach of that order. We could have worldwide litigation if states don’t stop assisting Israel… there will be legal ripples across the world” he said.
The case could also have an impact on the Israeli public, Machover said. He believes that a significant number of Israelis “have not looked in the mirror” and lack awareness of the real impact of the war on Palestinians in Gaza. The ICJ case, he hopes, would prompt the Israeli public to engage in “some sort of self-reflection.”
Israeli President says South Africa's genocide case against Israel is "atrocious and preposterous"
Israel's President Isaac Herzog has told US Secretary of State Antony Blinken that the legal case brought by South Africa against Israel is "atrocious and preposterous."
South Africa is accusing Israel of being “in violation of its obligations under the Genocide Convention.” It says that “acts and omissions by Israel . . . are genocidal in character, as they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza,” according to an ICJ statement.
"On Thursday, a proceeding will start in the International Court of Justice in the Hague, whereby South Africa has sued Israel for supposed genocide. There's nothing more atrocious and preposterous than this claim," Herzog told reporters in Tel Aviv on Tuesday.
Speaking to reporters after their meeting, Herzog thanked Blinken for his "steadfast commitment" to Israel's safety. He said Israel will present a case "using self-defense," to show that it is doing its "utmost" under "extremely complicated circumstances" to avert civilian casualties in Gaza. "We are alerting, we are calling, we are showing, we are sending leaflets, we are using all the means that international law enables us in order to move out people," Herzog maintained.
Israel Is PRESSURING World Politicians To Condemn Genocide Accusations
UK foreign secretary says he is worried Israel may have broken international law in Gaza
“Am I worried that Israel has taken action that might be in breach of international law in Gaza, because this particular premises has been bombed, or whatever? Yes, of course,” Cameron, a former prime minister, said on Tuesday.
He added that legal advice received so far points to Israeli compliance with international law but that “lots of occasions” are under question.
Guatemala opposes South Africa’s genocide case against Israel
Guatemala has expressed its opposition to a genocide case filed by the South African government against Israel at the International Court of Justice (ICJ).
It said in a statement that it supported “Israel’s legitimate defence against the attacks of the terrorist group Hamas” and that “Israel’s purpose has always been to repel the constant invasions that seek to frighten the population”.
South Africa and Israel will present arguments in The Hague on Thursday and Friday, as the UN’s highest court reviews the claim that Israel has committed crimes of genocide against Palestinians in Gaza.
Bolivia, Jordan, Malaysia, Turkey and the Organisation of Islamic Cooperation have expressed their support for South Africa’s application.
