Analysis
Why the Israeli government is worried about South Africa’s new ICJ claim of genocide
A genocide ruling by the highest judicial body of the United Nations would be something very different from the loud complaints in the General Assembly.
The Israeli government spokesman claimed South Africa had decided to “play advocate for the devil” after the latter filed a formal denunciation on December 29 against the Jewish state before the International Court of Justice (ICJ) for violating the Genocide Convention. The Israeli government has vowed that it will send its representatives to the Hague to defend itself against this “absurd blood libel.”
Why is the Netanyahu government reacting even more virulently than with the now-customary accusations of anti-Semitism and complicity with terrorism, which it has already hurled on numerous occasions against prominent members of international institutions and human rights organizations, from Guterres on down?
The International Court of Justice (ICJ) is the principal judicial body of the United Nations, and has operated since 1946. It should not be confused with the International Criminal Court, which tries individuals accused of international crimes, whose jurisdiction is limited by the fact that the major geopolitical powers have refused to join, and which hasn’t managed to deliver impressive results in its short history. Its chief prosecutor has already expressed his opinion on the Gaza conflict, with some troubling ambivalences that we have pointed out at the time.
The ICJ, on the other hand, decides on legal disputes between states. South Africa claims that it has such a dispute with Israel, because it has accused Israel of genocide on several occasions, through its representatives and finally through an official note, a charge that Israel has dismissively rejected.
Both South Africa and Israel are parties to the 1948 Convention Against Genocide. In its complaint to the ICJ, South Africa documents in detail the violations committed by the Jewish state. Since October 7, Israel has killed more than 20,000 Palestinians, 70 percent of them women and children; caused the forced evacuation of 85 percent of Gaza’s civilian population; reduced the besieged population to starvation and thirst; caused physical harm, psychological trauma, inhuman and degrading treatment; failed to provide (and acted to eliminate) adequate shelter, clothing, sanitation, to the point of killing refugees; ravaged the health care system in Gaza, to the point of attacking hospitals and ambulances and killing doctors and nurses; destroyed Palestinians’ community life, eradicated historical memory, and killed prominent figures in civil society; and, last but not least, attacked the next generation of Palestinians through the “reproductive violence inflicted on Palestinian women, the newborn, infants and children.”
The South African complaint outlines a chilling phenomenology of horror, but all of this might not be enough: according to the 1948 Convention, genocide occurs when there is an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (Art. 2). To show that this specific intent (the “dolus specialis” which defines genocide) is present, the complaint includes statements by prominent Israeli leaders, from President Herzog to Prime Minister Benjamin Netanyahu, all the way to military commanders and pundits whose extreme statements were not countered in any way (violating the obligation of genocide prevention). It’s a chilling litany of statements: describing the conflict as a “struggle between the children of light and the children of darkness, between humanity and the law of the jungle,” invoking the fate of the biblical Amalek, dehumanizing Palestinians, denying the distinction between fighters and civilians, even going as far as calling for Gaza to be “erased off the face of the earth.”
South Africa is aware that genocide is “part of a continuum,” as theorized by the Jewish intellectual Raphael Lemkin, who originally coined the term. This is why the complaint recalled the history and geography of Gaza, the condition of the West Bank and Jerusalem, the October 7 attack (which it unequivocally condemned), the 75 years of apartheid, the 56 years of occupation and the 16 years of the Gaza blockade.
On the basis of Article 41 of the Statute of the ICJ, South Africa is calling for the Court to enact “provisional measures” to compel Israel to stop the war and prevent genocide, and, under Article 74 of the Statute, it calls on the Court to “protect against further, severe and irreparable harm to the rights of the Palestinian people.” At the core is an in-depth legal argument to the effect that the Court doesn’t have to make a determination on the merits of whether a genocide is in fact occurring, but only on whether it is “at least plausible,” “grounded in a possible interpretation” of the Convention; in short, if there is a real risk of genocide.
A ruling to that effect by the highest judicial body of the United Nations would be something very different from the loud complaints in the General Assembly; and there would be no veto rights, as in the Security Council. It’s not hard to see why the Israeli government is worried.
Originally published at https://ilmanifesto.it/il-sudafrica-avvocato-del-diavolo-alla-corte-internazionale-israele-genocida on 2024-01-03