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Monday, April 15, 2024

Will ICJ Stop Israeli War Machine?

GVS Managing Editor Ms. Najma Minhas engaged in a discussion on South Africa's case against Israel at the ICJ with Hassan Aslam Shad, an international law expert.

The ongoing bombardment in Gaza has resulted in 1,500 Palestinians losing their lives in the first 10 days of this year, bringing the total Palestinian death toll to over 23,000. South Africa has filed a case accusing Israel of genocide in the International Court of Justice (ICJ). The hearings, which took place on January 11th and 12th, included arguments from both sides.

South African lawyers pointed to statements by Israeli leaders, including Benjamin Netanyahu, as evidence of genocidal intent. The destruction in Gaza is evident, with entire towns, villages, and refugee camps being wiped from the map. The ICJ hearings concluded on January 12th, and the court is expected to announce its decision soon. Israel’s diplomats globally have worked to undermine the case, calling it baseless and a “blood libel.”

South Africa submitted an 84-page application to the ICJ, accusing Israel of breaching obligations under the 1948 Genocide Convention. South Africa has requested nine provisional measures, including suspending the military campaign until the court reaches a final verdict. While Israel questions the relevance of South Africa bringing the case to the ICJ, South Africa cites its historical affiliation with the Palestinian cause due to its past struggles with apartheid. Stay tuned for updates on the ICJ’s decision.

GVS Managing Editor Ms. Najma Minhas sat down to have a chat on this topic with Hassan Aslam Shad, an international law expert.

GVS: Before delving into the details of the ICJ case that South Africa has brought against Israel, let me first ask you, why South Africa? This has intrigued me and many others. Why did South Africa choose to bring this case, rather than a Muslim country, for example?

Hassan: That is a very good question. This question has intrigued me as well. I believe one of the main reasons why South Africa, instead of any other country or even Muslim countries, took this step is rooted in its own history. South Africa has witnessed the horrors of oppression during the apartheid days, which led the country to take a moral stand in this situation. South Africa felt compelled to do what other countries had failed to do – take a moral stand, bring Israel to the dock, present it before the World Court, and hold it accountable for the crimes committed against the Palestinian people.

I think South Africa’s decision is a direct result of its own past, which allowed it to witness these injustices firsthand and empathize with the Palestinian people. Additionally, if we look at history, Nelson Mandela had previously supported the Palestinian cause, and Yasser Arafat had offered praise and support to the struggle of the African National Congress during their fight against oppression in South Africa. Therefore, historical connections and shared struggles play a significant role in why South Africa has taken this remarkable step of bringing Israel to the International Court of Justice.

GVS: Is this the first time that Israel is in front of the ICJ?

Hassan: There is another ongoing case against Israel. However, this case is unique because it involves Israel being taken to the ICJ under the Genocide Convention. The impetus for this convention came in 1948, crafted by the international community in the aftermath of the Holocaust. Now, Israel stands accused of breaching and violating the Genocide Convention, making it a unique moment in the history of international law.

GVS: Regarding the recent arguments in the case, the South Africans presented their case on Thursday, and the Israelis on Friday. What stood out for you in both cases?

Hassan: The South African case is particularly interesting as it is initiated under the Genocide Convention, a challenging task due to the difficulty in proving specific intent. Genocide is considered the “crime of crimes,” and convincing a court of a country committing genocide is no easy feat. South Africa is not asking the ICJ to adjudicate the case on its merits but is seeking provisional measures based on the plausible case for Israel committing genocide. One crucial measure sought is for Israel to cease its military campaign in and against Gaza.

This is significant, given the lack of a United Nations Security Council resolution due to the U.S. veto. South Africa has presented a compelling case, citing statements from the Israeli prime minister and president as evidence of genocidal intent. Israel’s defense revolves around the right of self-defense, but as an occupying power, the ICJ has noted that it does not have this right. Israel argues that there is no genocidal intent and that statements were taken out of context, attempting to challenge the South African narrative. However, the South African case appears strong, and I personally believe they may secure certain provisional measures from the ICJ.

Read More: Israel rejects genocide charges, tells World Court it must defend itself

GVS: Israel often justifies its actions as self-defense, similar to other countries like the U.S. in Afghanistan and Iraq. The Dresden bombing is also mentioned. What distinguishes Israel’s accountability for genocide compared to these cases where no allegations of genocide were made against the U.S.?

Hassan: Genocide is not the only international crime; there are also crimes against humanity and war crimes. While the U.S. invasions of Iraq and Afghanistan may have involved war crimes and crimes against humanity, there was no targeting of a national, ethnical, racial, or religious group, which defines genocide. That is why there are few allegations of genocide against the U.S. In contrast, South Africa has presented a clear case against Israel for committing genocide.

Now, going back to 2022, when Russia invaded Ukraine, the international community filed a case against Russia at the ICJ, alleging genocide. Provisional measures were swiftly issued, demanding Russia halt its military campaign. This highlights the distinction in legal claims.

GVS: That is intriguing. I also read about the Russia-Ukraine case. Moving back to the Israel-South Africa case, I noticed that both sides had multiple lawyers presenting different aspects. Is this common in ICJ proceedings?

Hassan: It is not unusual, especially considering the emotional and fact-intensive nature of this case. It is essentially a war of narratives between the global South led by South Africa and certain Western countries siding with Israel. The combination of emotion and fact is crucial for any chance of success. The South African team, with six lawyers presenting various parts of the case, reflects the gravity of the situation. On the Israeli side, a group of lawyers, including Malcolm Shaw, an international law authority, presented their defense. However, defending Israel’s actions, despite scholarly backgrounds, becomes challenging when facing blatant illegality against the Palestinians.

GVS: What do you think the implications of this case will be for the Palestinians and international law in general?

Hassan: International law has been severely undermined, and people have lost faith in it. There is a prevailing sentiment that it is the rule of the jungle, where powerful states can act with impunity. The example often cited is the International Court of Justice ordering provisional measures against Russia and the swift action by the International Criminal Court in issuing an arrest warrant against Vladimir Putin. However, this is seen as selective outrage, lacking a balanced and fair treatment of every conflict. In this specific case, there is a sliver of hope that the International Court of Justice will see beyond the veil of lies erected by Israel and Western countries, revealing the true impact on the Palestinians in Gaza. The hope is that the court will issue provisional measures, including requiring Israel to cease its military operations in Gaza and, at the very least, adhere to international law by slowing down its military activities. This is seen as the last hope remaining.

GVS: What percentage do you put on the realistic possibility that South Africa will get relief on provisional measures?

Hassan: Considering the law and the ICJ’s case law, I am confident that the court will grant the interim relief sought by South Africa, ordering Israel to halt its military operations in Gaza. South Africa has presented a plausible prima facie case that Israel is committing genocide against the Palestinians, supported by ample evidence. The evidence goes beyond individual accounts, involving 15 to 20 United Nations rapporteurs who have raised the alarm about the potential for genocide. From my perspective, it is crystal clear, and I believe, on a balance of probabilities, the court is likely to order those provisional measures. I am hopeful that this will be the outcome.

GVS: In terms of provisional measures, has the court granted them in previous cases before rendering a judgment? Can you cite specific instances?

Hassan: Certainly, the court frequently grants provisional measures. For instance, in the ongoing Ukraine versus Russia case at the ICJ, provisional orders were issued in 2022, one of which demanded that Russia halt its military operation against Ukraine. Despite Russia not complying with the order, it led to subsequent actions. The U.S. invoked the “uniting for peace” resolution, passed by the UN General Assembly, to condemn Russia when the Security Council faced a deadlock due to a veto.

GVS: So, the resolution may not always lead to tangible results?

Hassan: Exactly, There is no guarantee of results. UN General Assembly resolutions are non-binding, but they hold value and add momentum. If the Security Council stalls initiatives to enforce a court’s ruling, as is likely with the U.S. using its veto to protect Israel, South Africa could explore the “uniting for peace” resolution. The General Assembly, historically suspending the membership of South Africa and Yugoslavia, could even order sanctions against Israel. The situation is evolving, and the role of Russia and China will be crucial, given their conflicts with the U.S.

GVS: Considering Russia’s involvement in a case against Ukraine at the ICJ, do you think they’d support such resolutions?

Hassan: It is uncertain, as Russia has its own case at the ICJ against Ukraine, and their representative voted against the provisional order in that case. The stance Russia takes in South Africa’s situation remains to be seen. Other countries may adopt a favorable position, but based on the strength of South Africa’s case, it is compelling, robust, and should likely receive some form of provisional relief.

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GVS: You mentioned South Africa presenting a robust case with facts and figures, while Israel relies on self-defense and procedural issues. Malcolm Shaw argued that South Africa lacks jurisdiction and should settle diplomatically. How credible are these arguments?

Hassan: The argument that South Africa lacks jurisdiction doesn’t hold much water. Genocide is an erga omnes obligation, binding all signatories to prevent and punish genocide. Even non-directly affected countries like Gambia in the Rohingya case had standing. Malcolm Shaw’s attempt to create a disconnect between South Africa’s arguments and standing doesn’t stand judicial scrutiny. South Africa’s obligation to prevent genocide provides the necessary standing. The claim that South Africa didn’t attempt diplomatic resolution is contested, but even if true, it is not a strong jurisdictional argument.

GVS: Moving on to the judges, can we expect neutrality from the ICJ judges, considering their national backgrounds? How much influence does the President of the ICJ, currently an American, have on decisions?

Hassan: Neutrality is somewhat fictional, and recent ICJ decisions suggest judges may align with their countries. Politics plays a significant role. The President’s influence is there, but judges maintain independent thinking. The current President, Joan Donoghue, is expected to step down in early February, possibly before or after the provisional measures decision, which is expected soon. The decision might be influenced by the judges’ countries of origin, making it a politicized process.

GVS: If the court votes in favor of South Africa, what are the implications for Israel?

Hassan: If the ICJ rules in favor of South Africa, it would have significant implications for Israel. The court could order provisional measures, such as halting military operations in Gaza. Israel might face international condemnation and potential sanctions. However, the actual impact depends on how the international community responds, and geopolitical factors involving countries like Russia and China will also play a crucial role in shaping the outcome.

GVS: Assuming the ICJ votes for South Africa and orders Israel to stop, what are the implications for Israel?

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Hassan: The first implication is further damage to Israel’s tarnished reputation. Israel’s actions since October 7 have been widely criticized, and a ruling against them would add to their condemnation. The attack on innocent civilians in Israel is also condemned, but Israel’s response is deemed atrocious, wiping off an entire generation of Palestinians. This could dent the reputation of the US, a strong supporter of Israel, as they are perceived to be joined at the hip. The judgment may impact US relations in the region and diminish any remaining goodwill.

GVS: Final thoughts on the parallel case at the ICC. How might the ICJ ruling affect it?

Hassan: While the ICJ settles disputes between countries, the ICC prosecutes individuals for war crimes. The ICC prosecutor has been seized of the Palestine situation since 2015, with findings of potential war crimes in 2022. If the ICJ orders against Israel, the ICC might face increased pressure to move forward with its investigation. Comparing the conflicts in Ukraine and Palestine, the gravity of the Palestinian conflict suggests that justice could help ease tensions and prevent further escalation in the region.

Watch the full discussion on GVS Dialogue: