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January 11, 2024

Why Israel must defend itself in The Hague

Disclaimer: The views expressed in the article belong to the author(s) and do not necessarily represent the position of FairPlanet.

On 29 December last year, South Africa filed a lawsuit accusing Israel of genocide against the Palestinians and requesting that interim measures be ordered. The two-day hearings have now begun in The Hague, Netherlands.

As the highest court of the United Nations, the ICJ settles disputes between UN member states and responds to requests for expert opinions on legal issues. Although the court is not authorised to prosecute the actions of individuals, its opinions and judgements carry considerable political weight. After all, the judgements are legally binding for the parties to the ICJ. And these include both Israel and South Africa. 

In practice, however, the judgements cannot be enforced, as can be seen in the case of the ongoing Russian war of aggression in Ukraine. ​​Despite the ICJ’s ordering an immediate cessation of hostilities in March 2022, no such action has been observed since then.

Provisional measures are called for

On these two days, the ICJ will not initially decide whether Israel is committing genocide. Rather, the 15 judges will assess whether South Africa's arguments are sufficiently solid to order interim measures. According to the motion, these interim measures are intended to "protect the Palestinians from further, serious and irreparable harm." 

Israel should be required to fulfil its obligations under the Genocide Convention, i.e. "not to commit genocide and to prevent and punish genocide," the 84-page application continues. Israel denied the allegations in advance. The country claims to be acting in accordance with international law against Hamas and not the Palestinians as a people. Tomorrow, it will be Israel's turn to present its position.

During the presentation of the application at the first hearing, South Africa's lawyers repeatedly mentioned the alleged similarities between the fate of the Palestinians and that of black people in South Africa during the apartheid era. 

South Africa's endeavours at the ICJ are arguably politically-motivated. There is nothing unusual about this, as this is the way international relations operate, and it is logical to negotiate political disputes before institutions that the international community has designated as arbitrators. 

However, South Africa's actions can come across as hypocritical, especially when one considers that South African President Ramaphosa recently welcomed Mohamed Hamdan Dagalo, the leader of the Sudanese Rapid Support Forces (RSF), only a week ago. Better known as Hemedti, he is a military commander responsible for ethnically-motivated mass killings and rapes, including of young girls, most notably in West Darfur. South Africa is not taking any action to protect the massacred population in this matter, but rather officially welcomes the war criminal conducting the onslaught.

Hamas could also be accused of genocide

An ICJ decision could be made relatively quickly with regard to the provisional measures, but if a decision is made in favour of the plaintiffs, the measures would only be temporary. At a later stage, the judges would have to decide whether to progress the case to the evidentiary phase.

This would be the starting point for a comprehensive trial in which the court would deal with the question of whether or not Israel is committing or has committed genocide. This issue would become the subject of a long-running dispute.

The accusation of genocide against Israel has been circulating for several years, especially among activist circles. This is also due to the fact that members of the current right-wing Israeli government have repeatedly attracted attention through their genocidal rhetoric. 

Furthermore, the conflicts between Hamas and Israel have always been asymmetrical: the terrorist organisation ruling Gaza starts the military operations and forces the Israeli army to carry out devastating retaliatory strikes.

In the end, the number of casualties in Gaza is always higher than in Israel. However, determining whether or not an armed attack amounts to genocide should be delegated to experts who possess the necessary evidence and can order rulings commensurate with their findings. 

This also applies to cases against terror organisations such as Hamas, whose actions on 7 October could also potentially be regarded as genocidal. That day, more than 1,200 Israelis, most of them civilians, were murdered and over 300 people were kidnapped into Gaza by Hamas. 

Furthemore, in its founding charter, Hamas lists the extermination of all Jewish life between the Jordan River and the Mediterranean Sea as its ultimate goal. What’s more is that genocide can also be committed against one's own people; the high number of victims in the current Gaza war is not least a consequence of the fact that Hamas uses all aid money exclusively for its own war purposes and has successively led the Gaza Strip into economic and humanitarian misery since the end of the Israeli occupation in 2005, while using civilians as human shields. 

A twisted, dangerous logic

These kinds of considerations should be part of a comprehensive examination of the current situation. South Africa's complaint, however, did not include such nuances or details. In a few words, British lawyer Vaughan Lowe argued at the end of the hearing that Hamas is not a state and therefore cannot be a party to the Genocide Convention. Therefore, according to Lowe, it could not commit genocide under international law. One could perceive it that way from a legal perspective.

It is, however, a rigid, state-centred lens that does not do justice to the political reality, as was the case with the genocide committed by the so-called Islamic State against the Yazidis.

Furthermore, this perspective fails to recognise that Hamas is demonstrably supported logistically, financially and militarily by foreign states and is not on an equal footing with other civil society organisations. This logic thus contributes to maintaining a criminal liability loophole that encourages states to act through proxy organisations and evade their responsibility.

More promising cases before the International Criminal Court 

More promising than the ICJ case could be the ones brought before the International Criminal Court (ICC). Unlike the ICJ, which deals with legal disputes between states and issues advisory opinions on international legal questions, the ICC is responsible for prosecuting individuals who have committed the most serious international crimes, such as genocide, war crimes, crimes against humanity and the crime of aggression.

The Court has several pending cases related  to current events in the Middle East. Reporters Without Borders filed its first complaint in October 2023. It relates to the deaths of nine journalists: one Israeli who was killed during the attack on his kibbutz on 7 October and eight Palestinians. This is the third case RSF has filed with the ICC since 2018. Previously, together with the Qatari broadcaster Al Jazeera, they had also filed a complaint relating to the case of journalist Shirin Abu Akleh.

Additionally, nine Israeli families who were victims of the Hamas massacre on 7 October submitted a complaint in November for "war crimes, crimes against humanity and genocide." They demanded the examination of international arrest warrants against leading Hamas members. 

Just days later, two further applications reached the ICC. A collective of over a hundred lawyers from various countries filed a complaint for "genocide" in Gaza. On the same day, three Palestinian human rights organisations filed a complaint for "war crimes," "apartheid," "genocide" and "incitement to genocide," demanding that arrest warrants be issued against three Israeli leaders.

Even if Israel is not a member of the ICC, it is sufficient for a party to declare its consent to the jurisdiction of the Court for proceedings to be opened before the ICC. This was done by the Palestinian Fatah government in 2015. The court has not yet taken up the current cases.

However, those responsible for the current Gaza war should be brought before the world criminal court. Every day, they sacrifice civilian lives and steal their future, all while they bask in their own perceived safety and prosperity. There have been many acts committed by Hamas that clearly violate the Geneva Conventions and must be categorised as war crimes or crimes against humanity.

These include the terrorist organisation's military operations from schools and hospitals, the brutal rape of Israeli women by Palestinian terrorists and, last but not least, the violent abduction of hundreds of Israeli civilians, including many children and a ten-month-old baby.

Image by Tingey Injury Law Firm.