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In December 2023, the International Court of Justice became the scene of perhaps the most pivotal moment in the history of the world's highest judicial body, after Israel became, for the first time in its history, the subject of a possible lawsuit for the crime of genocide.
This came through a request submitted by South Africa to the court, accusing Israel of violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
While the lawsuit against Israel demonstrated the extent of the international division over it, it also raised a deep debate about the roots of the effects of politics in international justice.
Israel's sensitivity to genocide
“We are facing a crime without a name,” British Prime Minister Winston Churchill described in a 1941 radio speech the Nazi violations against minorities - especially Jews - while warning of a possible German attack to destroy his country.
The actions carried out by Nazi Germany against minorities - especially Jews within the communities it controlled - played a prominent role in establishing the concept of genocide when, in 1944, the Jewish lawyer of Polish origin, Raphael Lemkin, coined for the first time the term “genocide” as a definition of the crime that Churchill described. .
“New concepts required new terminology,” according to Jewish lawyer Lemkin, who played a prominent role in lobbying for the adoption of the first UN human rights treaty in 1948, the Convention on the Prevention and Punishment of the Crime of Genocide.
In 1950 - in which it ratified the Convention - Israel enacted the “Prevention and Punishment of the Crime of Genocide” law, which punishes the crime with death. It also grants Israeli courts universal jurisdiction over this crime by enabling them to try individuals for genocide even if the crime was committed. It was committed outside Israel, which in turn tried to show a strong commitment to fighting this crime, due to its connection to the suffering of the Jews during the Nazi era.
While the “Holocaust” helped the world realize the enormity of exterminating a group of people on racial, religious, or national grounds, the Gaza war revealed that the international collective pledge that “what happened will never happen again” is no longer effective in the face of a country in which the genocide of the Jews was one of the reasons for this. Its existence.
Israel is in the dock for the first time
While Israel has always consolidated the depth of its historical and moral connection to the Convention on the Prevention of the Crime of Genocide, the claim submitted by South Africa to the International Court of Justice regarding Tel Aviv’s violation of the international convention has placed its actions under great scrutiny beyond the constant criticism related to violations of international law.
This is due to several factors, including:
The seriousness of the accusation that describes genocide as “the mother of all crimes.”
The merits of the lawsuit went too far when it linked the crime, not only to the ongoing war on Gaza, but also to the long-term occupation of the Palestinian territories and the widespread Israeli violations it included against the Palestinians.
Israel's inability to do what it has always done well, which is to ignore the court as it has done over the past decades, making it literally always above accountability, relying on broad American support, which has effectively weakened all international mechanisms that aim to deter its behavior in the Palestinian territories.
Israeli defenses
The defenses presented by the legal team representing Israel did not deviate from what was expected in the pleading, which lasted more than 3 hours. In general, these defenses were described as very weak, and included:
Israel asserted its right to defend itself.
Israel blamed the Islamic Resistance Movement (Hamas) for causing the killing of Palestinian civilians by using them as human shields.
It argued that the court lacked jurisdiction to hear the case alleging that South Africa had not complied with a formality requiring it to contact Israel regarding the war in Gaza.
It denied preventing supplies of water, food, and medicine to Gaza by claiming that a number of aid trucks had entered the Strip.
Court orders
Although the court did not clearly order Israel to stop its military operations in the Gaza Strip, as South Africa had requested, its decision carried special significance because it announced the court’s formal acceptance of its jurisdiction to hear the case.
Therefore, Israel will remain the subject of international accusation for the crime of genocide in the Gaza Strip for many years - that is, until the case is decided - and the court indicated its conviction that it was “reasonable” that Israel committed acts in violation of the Genocide Convention in Gaza.
The actual implementation of these orders could have significantly reduced the Israeli war on the Gaza Strip and relieved Israeli behavior of its usual brutality against the population there.
The court's decision issued on January 26 included orders for Israel as follows:
Take all measures to prevent acts of genocide.
Prevent and punish direct and public incitement to the crime of genocide.
Take immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza.
Emphasizing Israel's preservation of evidence of genocide.
Submit a report to the court within a month on its compliance with court orders.
Israel is circumventing the court
In addition to the widespread atrocities of the Israeli army in the Gaza Strip - which made the task of Israel's legal team difficult before the court - the arguments put forward by the team itself were not balanced with the gravity of the accusation directed against it in the court when pretexts were invoked whose international admissibility has always been in great doubt.
Over the long decades of occupation, the “self-defense” argument has been the holy grail for Israel in justifying its brutal violations against the Palestinians, especially the various military operations in the West Bank and Gaza Strip, or in relation to policies with a prolonged and long-term impact against the Palestinians.
Western behavior - especially America's in supporting Israel's argument for launching it - has reinforced its violation of the principle of self-defense as viewed by international law, especially the United Nations Charter, which explains why Israeli Prime Minister Benjamin Netanyahu was quick to express his contempt for the International Court's decision by reaffirming " The sacred obligation to defend Israel and its people,” which more or less means setting the stage for violating the court order under this pretext.
Israel's justifications - whether before the international community or the International Court of Justice in particular regarding defending itself before the Palestinian people - were not based on solid and stable ground.
This reflected the statements of the Russian Permanent Representative to the United Nations, Vasily Nebenzia, in which he considered, during an emergency session of the General Assembly to discuss the Israeli aggression on Gaza, that “Israel does not have the right to self-defense as it is an occupying state.”
In its advisory opinion issued in 2004 regarding the legality of the separation wall, the International Court of Justice was more clear in rejecting the self-defense argument invoked by Israel, given that the United Nations Charter grants the right to self-defense in the event of an armed attack by one state against other states.
In contrast, “Israel does not claim that attacks against it can be traced to a foreign state,” but rather from Palestinian territories under its control and occupation.
The genocide continues
The Convention on the Prevention and Punishment of the Crime of Genocide identifies a number of acts that fall within the framework of genocide, including:
Killing group members.
Causing serious physical and mental harm to members of the group.
Deliberately subjecting them to living conditions with the intention of destroying them in whole or in part.
Despite the extent of Israeli anger resulting from its prosecution before the International Court of Justice, which found a basis for committing genocide crimes in Gaza, field data indicate that no significant change has occurred in the behavior of the occupation army forces on the ground, while international reports document that the humanitarian tragedy in Gaza has reached the level of Unprecedented levels.
Data issued by the United Nations Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territories (OCHA) indicate that the number of victims has continued to rise significantly since the case was filed with the International Court of Justice.
These data estimated that the number of Palestinian martyrs had increased since that time - that is, from December 30 to February 27 of this year - by more than 8,000 martyrs, nearly half of whom had died since the International Court’s decision regarding precautionary measures on January 26.
In conjunction with Israel’s announcement that it had submitted a report to the International Court of Justice regarding the extent of its commitment to temporary measures in compliance with the court’s order, which gave it the deadline to submit the report within a month from the date of issuance of the decision, international bodies warned of a possible famine in the Gaza Strip, where all of its residents suffer from an acute food shortage, while half of them face A million people face starvation.
Comparison of history
In its judgment of February 2007, the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide concluded that the killings in Srebrenica in July 1995 - in which 7,000 Muslim citizens were killed - had It was committed with the specific intent to partially destroy the Bosnian Muslim group in that region.
The court confirmed that what happened there was indeed genocide, while the number of victims in that horrific massacre represents less than the number of victims who died as a result of the “Israeli” military aggression against Gaza only since the filing of the lawsuit against Israel before the UN court.
The court’s failure to issue a clear order to Israel to stop its military operations in the Gaza Strip was a matter of controversy about the reason behind this, and while some opinions suggested the reason was to return to the principle of the right to self-defense, arguing that any order to stop military operations would undermine Israel’s right to defend itself, the political dimension It was not absent in some interpretations of the court's decision.
Political considerations
This appears in considerations of the nature of the election of its members by the United Nations General Assembly and the Security Council - which are two political bodies - in addition to the fact that some judges are closely linked to the governments of their countries, and therefore their decisions do not deviate from the political orientations of their countries.
The disaster in the Gaza Strip had been unfolding since the first weeks of the war, and the difficult scenes coming from there were enough for the court to actually order Israel to stop its war on Gaza. While it is assumed that all of South Africa’s requests had been subject to consultation among the judges, the clear conclusion is that the first demand to stop Military operations was dropped because it did not achieve a consensus among the judges.
Political considerations may have already been present in the minds of the judges, who realized that Israel would not comply with any order to stop its military operations in Gaza, so they preferred to undermine the scope and strength of those operations.
In any case, the halls of the Peace Palace in the heart of the Dutch city of The Hague witnessed one of the most important judicial battles in the history of the International Court of Justice, when the world documented the failure of Israel, which stood for the first time desperately defending itself from accusations of genocide.
Source: Al Jazeera