The issue of genocide and the World Court

On December 29, 2023, the Republic of South Africa filed suit against Israel at the International Court of Justice (ICJ). In its application, South Africa argued that the way Israel is conducting military operations in Gaza violates the International Convention on the Prevention and Punishment of the Crimes of Genocide (Genocide Convention). The ICJ held hearings on “interim measures'' on January 11 and 12, 2024, giving South Africa and Israel three hours each to present their cases. A World Court ruling on the issue of interim measures is awaited.

This incident caused a great deal of controversy. As of this writing, Bangladesh and Jordan have issued statements saying they support South Africa's application and will intervene in the case. Germany says it will intervene in support of Israel (though all the intervening state can do is advance submissions on the question of interpretation of the Genocide Convention). While many other countries, primarily those in Latin America and the Middle East, have issued public statements in support of South Africa's application, others (most notably the United States, United Kingdom, and France) have In this way, Japan has shown its opposition to South Africa's application. France has gone so far as to threaten to violate the ICJ's findings of genocide against Israel.

legal background

To understand this argument, it is important to understand the international legal context of these cases. The crime of genocide is characterized by acts aimed at destroying all or a significant part of a particular group. Genocide is treated as the most serious of international crimes. All states therefore have an obligation to take measures to prevent genocide (known as the “erga omnes obligation”), regardless of where it occurs. This is the basis for South Africa, which is technically unrelated to the Gaza conflict, arguing that it has standing to take the case to the ICJ. This is nothing new. Gambia recently filed a lawsuit against Myanmar over the Rohingya genocide and successfully obtained interim measures.

At the same time, however, proving the existence of the crime of genocide requires proving specific intent (a “special act''), which is often a difficult task. For this reason, South Africa's request for interim measures and the public hearings on 11 and 12 January were particularly important. “Interim measures” correspond to what we understand as “interim orders.” These are issued until the final judgment of the case is rendered in order to protect the rights of either party from irreparable harm. For obvious reasons, the standard of proof is much lower at the interim measures stage than at the final hearing. As the Gambia v. Myanmar case showed, parties must only prove a plausible case that genocide is being committed.

To unravel this plausible case, we need to understand the decades of forced dispossession and suffering of Palestinians in the Nakba of 1948, the death toll in Gaza during the current war (more than 24,000 at last count), the widespread Besides highlighting the destruction of civilians, infrastructure (from hospitals to universities), and the imminent threat of starvation and disease (as noted by UN officials), South Africa also targeted high-ranking Israeli politicians (below the president and prime minister). claimed to have made genocidal statements. It was echoed by soldiers on the ground in Gaza while making TikTok reels.

Israel, on the other hand, maintained that there was no conflict between the parties and, even if there was, these statements were open to multiple interpretations and in any case did not reflect military operating procedures. In response to the October 7 Hamas attack, which killed approximately 1,200 people, it stated that the scope of the military operation was limited to the annihilation of Hamas (and to that extent the operation was consistent with the rules of international humanitarian law). Ta. Approximately 240 people were taken hostage.

next stage

The key question at this stage is what interim measures the ICJ may order if it determines that South Africa has met the reasonableness requirements. South Africa called for an immediate cessation of military hostilities. International law experts are of the opinion that courts will not be able to go that far (although they recently did so in Ukraine v. Russia). The central question, therefore, is how the court will adjust interim measures. From forcing Israel to bring food and other resources into Gaza (to prevent the threat of famine), to a humanitarian ceasefire, to instructing Israeli leaders to refrain from further genocidal rhetoric. Alternatives have been proposed. . The court also has the power to create its own interim measures beyond those requested by the parties.

It is important to note that the ICJ is not the only forum for proceedings related to the situation in Gaza. Questions have been raised about why the ICJ proceedings are so one-sided and why Israel is the only defendant and not Hamas. The answer is that Hamas cannot be brought before the ICJ because it is a non-state actor. However, Hamas officials (and Israeli officials as well) can be sued at the International Criminal Court (ICC), a separate body from the ICJ. This would require referring the Palestinian/Israeli situation to the ICC for investigation, which is already happening. However, so far, the ICC has not taken any further action.

Beyond the law, the nature of the divisions between nations has sparked debate. For example, it has been noted that in the Gambia v. Myanmar case, Germany (along with other countries) intervened and advocated for a broad interpretation of the Genocide Convention. How the same nation-state would intervene in the South Africa v. Israel case and advocate seemingly opposing positions is now being loudly questioned.

But more than that, as international law scholar Alonso Grumendi has documented, with a few exceptions (such as Belgium), this divide is between countries that were once colonial or imperial powers and those that were not. seems to be tracking the division between countries.

decisive moment

This is not entirely a coincidence. It has long been argued that modern international law was invented by the imperial “West” to protect its own material interests. For this reason, many see these cases as not only about the Israel, Palestine, and Gaza wars, but also about the legitimacy of international law itself, which belligerent pronouncements by nation-states simply do not allow. The situation is such that it cannot happen. France etc. The ICJ's order on interim measures, and its subsequent decision in this case, is of great importance primarily for the purpose of alleviating suffering in Gaza and imposing legal liability, but beyond that it is also a matter of vital stress. is a test of what is often called the “rules-based international order.” Whether this term has any meaning or is merely a convenient fiction will become especially clear in the coming months, depending on the ICJ's response and that of other nation-states.

Gautam Bhatia is a lawyer based in New Delhi