Venu Menon
Wellington, January 16,2024
One hundred days after it began, the war in Gaza has now reached the International Court of Justice (ICJ) at The Hague in the Netherlands.
South Africa has moved the UN court alleging that Israel has breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by both perpetrating, and failing to prevent, genocide against Palestinians in Gaza, a 365-sq km strip wedged between the Mediterranean Sea on one side, and Israel and Egypt.
South Africa has requested the ICJ to take “provisional measures” to immediately suspend Israel’s military operations in Gaza.
ICC vs ICJ
But while the International Criminal Court (ICC), an independent judicial forum also located at The Hague, has jurisdiction over International Human Rights Law (IHL), the ICJ hears violations by states of the Genocide Convention. Both Israel and South Africa are among the 153 states that are party to the Genocide Convention, which gives South Africa its locus standi to move the ICJ.
Defining genocide
The Convention defines genocide as acts against a targeted group entailing “killing” or “deliberately inflicting ……conditions of life calculated to bring about its physical destruction in whole or in part.”
Those acts must be committed with genocidal intent, meaning an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.”
South Africa’s application before the ICJ, submitted in late 2023, argues Israel’s military operations in Gaza since 7 October 2023 constitute genocidal acts.
It claims Israel has “killed in excess of 21,110 named Palestinians, including over 7,729 children – with over 7,780 others missing, presumed dead under the rubble [of collapsed buildings from Israeli airstrikes] – and has injured over 55, 243 other Palestinians,” and that “Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes.”
While South Africa also condemns the Palestinian militant group Hamas’s targeting of Israeli civilians and hostage taking on 7 October 2023, its application before the ICJ argues “no armed attack on a State’s territory, no matter how serious,…..can provide any possible justification for, or defence to, breaches” of the Genocide Convention.
South Africa’s application before the ICJ also discusses the “broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”
South Africa claims that Israel’s actions against Palestinians “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” specifically the Palestinians living in the Gaza Strip.
Israel’s self-defence plea
Israel, for its part, has invoked self-defence as the grounds for launching its air and ground attacks on Gaza. Israel’s lawyers at the ICJ are blaming the civilian casualties in Gaza on Hamas’s practice of embedding itself among the population.
Israel’s lawyers have also highlighted the tunnels claimed to be built by Hamas under civilian structures such as hospitals.
Israel points to the humanitarian aid delivered by it to Gazans, and blames Hamas for sometimes “stealing the aid.”
Israel has accused South Africa of “functioning as the legal arm of Hamas.”
It is worth noting that Israel is not cooperating with an investigation undertaken by the International Criminal Court (ICC), whose prosecutor has been banned from entering Gaza.
Non-binding
The findings of the ICJ, however, are non-binding. The court can mandate compliance to its ruling only via the UN Security Council, where Israel’s key ally, the United States, holds the power of veto.
But by appearing before the ICJ, Israel is endorsing the court’s proceedings and its decision will be morally binding on Israel, should the court rule in favour of South Africa.
Nonstate actors
Legal experts are divided over whether international law applies to nonstate actors such as Hamas, including whether states that are in conflict with nonstate actors are covered by it.
The protocols of the Geneva Convention include the protection of civilians, property and the environment during war. They also require combatants to treat prisoners humanely. But Hamas, as the governing authority of Gaza, which (along with the West Bank and East Jerusalem) is recognised by most countries as being part of the state of Palestine, has obligations under the Geneva Convention.
The state of Palestine is also a party to the Rome Statute of the International Criminal Court (ICC). This means that individuals linked to Hamas can be held accountable for committing genocide, crimes against humanity or war crimes committed in Gaza or on Israeli soil.
Though Israel is not a state party of the Rome Statute, its military actions in Gaza, being the territory of a state party (Palestine), are subject to scrutiny by the ICC.
Israel is extending its right to self-defence to include terminating Hamas altogether.
International law is not explicit on whether nonstate actors widely considered to be a terrorist group, such as Hamas, can be eliminated by the use of force.
But questions arise around whether Gaza’s civilian population can be used by Israel as a weapon of war against Hamas for any reason.
Whatever the course the debate takes, it is clear that Israel is currently grappling with the question whether pressing its offensive is succeeding in returning the hostages taken by Hamas.
It is a question that finds no answer in the unfolding proceedings of the ICJ.
Venu Menon is an Indian Newslink reporter based in Wellington
