World Court says it has Jurisdiction to hear the case of genocide against Israel, throwing out Israel’s request to reject the case.
By Ugo Akpan
On Friday the 25th of January 2024, The International Court of Justice at The Hague gave a ruling throwing out Israel’s argument that the World Court had no jurisdiction to hear the dispute between South Africa and Israel. Further, the Court said that there was a prima facie case for the charge of genocide perpetrated by Israel on the Palestinian people in Gaza which has been brought by South Africa; in essence giving an interim order to proceed with the charge of genocide brought against Israel.
On the 29th of December 2023, South Africa filed in the Registry of the Court an Application instituting proceedings against the Israel concerning “alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide”. South Africa requested that the Court adjudge and declare that South Africa and Israel each have a duty to act in accordance with their obligations under the Genocide Convention in relation to the members of the Palestinian group and to take all reasonable measures within their power to prevent genocide. South Africa further requested that the Court adjudge and declare that Israel:
- has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided under Article I, read in conjunction with Article II, and Articles III (a), III (b), III (c), III (d), III (e), IV, V and VI;
- must cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring about its physical destruction in whole or in part, and fully respect its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;
- must ensure that persons committing genocide, conspiring to commit genocide, directly and publicly inciting genocide, attempting to commit genocide and complicit in genocide contrary to Articles I, III (a), III (b), III (c), III (d) and III (e) are punished by a competent national or international tribunal, as required by Articles I, IV, V and VI;
- to that end and in furtherance of those obligations arising under Articles I, IV, V and VI, must collect and conserve evidence and ensure, allow and/or not inhibit directly or indirectly the collection and conservation of evidence of genocidal acts committed against Palestinians in Gaza, including such members of the group displaced from Gaza;
- must perform the obligations of reparation in the interest of Palestinian victims, including but not limited to allowing the safe and dignified return of forcibly displaced and/or abducted Palestinians to their homes, respect for their full human rights and protection against further discrimination, persecution, and other related acts, and provide for the reconstruction of what it has destroyed in Gaza, consistent with the obligation to prevent genocide under Article I; and
- must offer assurances and guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI.
Provisional Measures
Litigating genocide cases at the World Court can take years. For instance, the final judgement in the Bosnia & Herzegovina vs Serbia & Montenegro case brought before the Court in March 1993 was delivered in February 2007, 14 years later. Given the difficulty of amassing evidence to establish the complex allegations in any trial for genocide, especially the aspect of “intent to destroy in whole or in part, a national, ethnical, racial or religious group, under Article II, these trials are typically lengthy. Bearing that in mind, South Africa sought provisional measures (the equivalent of an interim order) to prevent, what at this stage of deliberation the Court would consider a potential genocide. The essence of the provisional measures South Africa sought was for a cessation of the ongoing genocidal onslaught by Israel on Palestinians in Gaza through massive and indiscriminate bombing of Gaza, the restriction of humanitarian aid into Gaza, and the cutting of electricity and water into Gaza. To prevent Israel’s criminal onslaught, South Africa sought the following provisional measures:
- The State of Israel shall immediately suspend its military operations in and against Gaza.
- The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to [in] point (1) above.
- The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
- The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
- killing members of the group;
- causing serious bodily or mental harm to the members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- imposing measures intended to prevent births within the group.
- The State of Israel shall, pursuant to point (4) (c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
- the expulsion and forced displacement from their homes;
- the deprivation of:
- access to adequate food and water;
- access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
- medical supplies and assistance; and
- the destruction of Palestinian life in Gaza.
- The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
- The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
- The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
- The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
Israel on its part asked the Court to “reject the request for the indication of provisional measures submitted by South Africa and to dismiss the case.
It must be highlighted that during the presentation of the counter arguments before the Court, Israel’s defence counsels relied on bold faced lies, misrepresentations and obfuscation in an attempt to persuade the Court that it had no jurisdiction on the matter and that South Africa had failed to follow procedure.
This feeble attempt by Israel failed completely.
Interim Ruling
The World Court communicated its intention to give a ruling in record time after the parties had made their pleadings before the Court. This was indicative of the seriousness of the matter in dispute.
The Court ruled that there was a legitimate concern that a genocide was being perpetrated by Israel. As such, the following provisional measures were ordered: (the votes by which they were passed are in brackets)
- [By 15 votes to 2] The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
- killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- imposing measures intended to prevent births within the group.
- [15 votes to 2] The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;
- [By 16 votes to 1] The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
- [By 16 votes to 1] The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;
- [By 15 votes to 2] The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;
- [By 15 votes to 2] The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.
Reception
At the World Court venue in The Hague, the South African delegation was jubilant. Minister of International Relations and Cooperation, Grace Naledi Mandisa Pandor, said welcomed the ruling saying while she would have preferred an explicit order for a ceasefire, nevertheless she believes “that in exercising the order, there would have to be a ceasefire. Without it, the order doesn’t actually work.” The irony is inescapable. The apartheid regime of Israel has been ordered by the highest Court on the planet to answer to a country that, overthrow the dark spectre of apartheid in a monumental struggle against the western backed regime in defunct apartheid South Africa. Once again, the same western imperialist regimes of the USA, UK, Germany, France, have coalesced in support of the last vestige of the putrid ideology of segregation, land theft, and oppression and South Africa is once again leading the fight to rid the world of this ogre.
The Court’s judgement is particularly satisfying because it represents a robust and damning rebuttal to the now discredited claim made by US and UK top diplomats that South Africa’s persuasive well marshalled petition was “meritless” and “counterproductive”. It perhaps befitting that the country that suffered the most from colonial oppression propagated by the two Anglo-American powers, should play a major role in dealing them a blow that would lay low the revolting enterprise of colonialism, perhaps forever.
Israel for its part remained largely muted in its response while its spokespersons made the rounds on western media channels touting the Court ruling as a kind of victory. The transparent spuriousness of such claims was easily exposed even by western media houses which are overly sympathetic to the apartheid regime.
Francis Boyle, American human rights lawyer and professor of international law at the University of Illinois College of Law, insists that South Africa scored an outstanding victory for human rights against apartheid Israel. As counsel for Bosnia & Herzegovina in the 1993 case, Professor Boyle has substantial experience litigating cases before the World Court. He correctly predicted that the Court would grant South Africa a request for provisional measures of protection on behalf of the Palestinians, albeit he did not anticipate that the voting margin would be as high as it was (15 votes to 2). Regarding the ceasefire provisional measure that many were expecting, Professor Boyle points out that the Court had no way of doing this as Hamas was not a party to the dispute and so the Court had no jurisdiction over Hamas. The Court could have issued a unilateral order for ceasefire against apartheid Israel, but this would have been deemed one-sided. So, the Court did the next best thing ordering the Israeli army to cease and desist from committing all acts of genocide against the Palestinians set forth in article 1 of the provisional measures.
What happens next is that Algeria, which is currently holding the rotational leadership of the UN Security Council, has requested a meeting of the Security Council on Wednesday 31 March to enforce the Court’s orders. It remains to be seen how the United States and United Kingdom would vote, given that these two imperialist nations are Israel’s principal backers at the UN and have actively assisted Israel carry out its genocidal onslaught in Gaza by providing it with weapons and diplomatic cover. More recently, the two aggressor countries with a long history of attacks on nations in the Arab world and across the Global South, have resorted to bombing Yemen, which had instituted a maritime blockade on Israel vowing not to stop until Israel ceased its genocidal attacks on Gaza. Needless to say, that for now it appears that the two violent imperialist nations have bitten off more than they can chew as Yemen has extended its blockade of maritime vessels to include those vessels carrying the flag of the USA and UK.
The tide seems to be turning in the global order since Russia’s resolute intervention in Ukraine in 2022 against NATO encroachment, and the US bloc has found itself increasingly on the retreat and bedevilled with internal fractures. The Ukraine conflict, which has receded to the back pages of the western press given the near catastrophic defeat Russia has so far doled out to the US proxy, is a good metaphor for the state of the US empire. Its persistent decline becomes ever more evident by the day, as it loses economic dominance to a rising China from the East, and engages in disastrous military adventures in Europe, the Middle East and Asia.