Read part 1 here.
Prologue
On 26 January 2024 the International Court of Justice released its interim decision on the case of South Africa v Israel. There is a horrible irony as to the date of the release of the decision. It was the day before International Holocaust Remembrance Day. Clearly the Court seems to have overlooked the coincidence of dates although I can understand its desire to release its decision given the ongoing conflict in Gaza. Needless to say the optics are terrible.
This article considers aspects of the decision of the Court and some of its implications. It was originally intended that some observations about the ICJ decision could be incorporated into the preceding companion piece “The Business of Genocide.” However, the decision warranted a commentary of its own.
The nature of the Middle Eastern situation is difficult, long lasting (as will be seen from the graphic at the end of this article) and almost insoluble. There are no simplistic solutions. It is not a black and white situation but involves many shades of gray – not to mention the red of the blood that has been shed.
In some respects I have isolated a couple of contemporary elements that need to be articulated and one in particular that the ICJ either naively or intentionally chose to ignore. It is said ad nauseum “in the law context is everything”. In this case, South Africa argued the context was not relevant. The ICJ drank that Kool Aid.
Sections of this article contain graphic descriptions of violence and particularly sexual violence.
The Nature of the Case
South Africa launched proceedings at the court under article 9 of the Genocide Convention 1948, which says that disputes between parties to the convention may be submitted to the ICJ. South Africa alleged that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.
Israel did not deny that the Palestinians are a “group” within the meaning of the convention or that Palestinian civilians are being killed in Gaza. What it disputed was that it was committing genocide — “there can hardly be a charge more false or more malevolent”, it said — and that it intends to commit genocide. “If there have been acts that may be characterised as genocidal,” the Israeli foreign ministry’s legal adviser told the court at the hearing “then they have been perpetrated against Israel.”
The Court addressed the stimulus for the Israeli military action as follows:
“ [On] 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza” (Para 13)
No detail is given nor is there any consideration of the nature of the atrocities that were perpetrated against Israeli citizens by Hamas terrorists. I will return to this matter later in this article.
South Africa asked the Court to provide the following provisional relief:
- Require Israel to “immediately suspend its military operations in and against Gaza” – in effect a ceasefire.
- Direct Israel that others under its control or influence must do so too.
- Require South Africa and Israel to prevent genocide.
- Direct Israel to desist from genocide.
- Direct Israel to desist from other specified actions in relation to Palestinians.
- Direct Israel that others under its control or influence must do so too.
- Direct Israel to preserve evidence.
- Direct Israel to tell the court within a week, and regularly after that, what it is doing to comply with the court’s order.
- Direct Israel not to do anything to aggravate or extend the dispute before the court.
The Court did not grant all of South Africa’s requests. Importantly it did not decide that genocide had been committed. However, the directions that were issued concluded that there was a potential for the commission of genocide in breach of the Convention.
The Court observed that it had the power to indicate different provisional measures from those requested. It decided by significant majorities that:
- Israel must take all measures within its power to prevent the commission of all acts within the scope of article 2 of the genocide convention.
- Israel must ensure with immediate effect that its military does not commit any of these acts.
- Israel must 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 Gaza.
- Israel must take immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.
- Israel must take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocide
- Israel must submit a report to the court on all measures taken by it to give effect to this order within one month from the date of judgement.
Two other issues were left open.
The court reaffirmed that the decision given in the present proceedings in no way prejudged the question of the jurisdiction of the court to deal with the merits of the case or any questions relating to the admissibility of the application or to the merits themselves. It left unaffected the right of the governments of the Republic of South Africa and the State of Israel to submit arguments in respect of those questions.
The court deemed it necessary to emphasise that all parties to the conflict in the Gaza Strip were bound by international humanitarian law. It was gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.
In that paragraph is the only other recognition of the role of Hamas in the atrocities that incited the conflict. Furthermore it makes it clear that Hamas was required to release the hostages taken without conditions. So far this has not received compliance.
Observations About the Decision
- No finding was made that Israel was committing genocide. The Court stated explicitly that it was not deciding on the merits whether Israel’s actions in Gaza amount to genocide. As the Court said in a previous case at the provisional measures phase of proceedings, “The Court is not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of the Genocide Convention” (Gambia v. Myanmar 2020, para. 44). The Court also repeated language from Gambia v, Myanmar: “The Court is not called upon to determine definitively whether the rights which South Africa wishes to see protected exist; it need only decide whether the rights claimed by South Africa and for which it is seeking protection, are plausible.”
- A determination of whether Israel’s conduct amounts to genocide is for the “merits” phase of the proceedings – which will likely occur years from now – after Israel has the opportunity to raise “preliminary objections” to jurisdiction and the Court decides on that matter, after both parties have filed additional briefs and other States have submitted written pleadings staking out their positions on the facts and the law. (Before today, a handful of States already said they would intervene in later proceedings – including Germany in favour of Israel, and Bangladesh, Jordan, and Nicaragua in favour of South Africa.)
- The initial case had a far easier evidential hurdle for South Africa to clear – based on a very low standard of proof – compared to the standard of proof that will be required were the Court to reach the merits phase. This is true of any ICJ case. It is especially true of a case about genocide, for which the Court has imposed the highest standard of proof at the final merits stage.
Judge Greenwood described the low standard of proof (and the potentially temporary nature of the Court’s findings) at this initial stage of proceedings (in Georgia v. Russia 2011):
“I do not consider that the Court’s … Order regarding provisional measures of protection operates to constrain the approach which the Court should take in the present phase of the proceedings. … Requests for the indication of provisional measures of protection are considered as a matter of urgency, as required by Article 74 of the Rules of Court, without the opportunity for the consideration of extensive evidence or the detailed analysis of legal issues which can be undertaken in later phases of the proceedings. The jurisdictional threshold which the applicant has to cross is, accordingly, set quite low and any ruling — whether as to law or fact — which the Court makes at the provisional measures stage of a case is necessarily provisional.”
Writing in the Atlantic, James Smith, the life president of the U.K.’s National Holocaust Centre and Museum and the founder of the Aegis Trust, a nonprofit that campaigns to prevent genocide observed
“Given the dreadful toll of civilian deaths in Gaza, reportedly now topping 25,000, Israel should answer questions about its conduct. Every member of the United Nations’ 1948 Genocide Convention has an obligation to raise concerns if they have evidence that a group of people is at risk of genocide. Given previous catastrophic failures to prevent genocide—in Bosnia, Rwanda, Darfur—more referrals to the court could be good news for the protection of civilians at risk. And unlike Russia, against which Ukraine made a complaint to the court in February 2022, Israel has indicated that it takes the charges seriously, attending the court to dispute the accusation.”
Smith points out a grave shortcoming regarding the ICJ approach – one to which I have already referred.
“The asymmetry of the conflict has legal bearing, exposing a grave loophole in the international legal system. Hamas cannot be called before the International Court of Justice, nor can any government of Gaza, nor even Palestine, which is not a fully sovereign state and has only observer status at the United Nations.
In other words, nonstate actors can threaten genocide and even act upon that threat and avoid the accountability that applies to sovereign states. Although the court has rightly enjoined Israel to prevent genocide against Palestinians and punish its incitement, no authority has ordered the Gazan government to prevent genocide against Israelis and punish its incitement, which occurs daily; no orders have been issued for Hamas to stop firing rockets at Israeli civilians, which continues; and no order has come down for Hamas to prevent genocidal acts by its fighters.”
The only direction – and it was not specifically aimed at Hamas – was that hostages should be immediately and unconditionally released.
Smith observes that the International Criminal Court might have jurisdiction over Hamas and notes South Africa’s application to the ICJ failed to mention that Hamas was established with the explicit purpose of destroying the Jewish state.
In the 84 pages of the application, only a couple of paragraphs refer to the massacre of those 1,200 people, the majority of whom were Jewish and civilians. No reference appears to the horrific sexual violence perpetrated against Israeli women, nor to the numerous acts of torture and desecration of corpses, all of which has been widely reported and documented.
Lest that context be forgotten the following illustrations from the New York Times article “Screams Without Words – Has Hamas Weaponised Sexual Violence” by Jeffrey Gettleman and others sharpen the horror of the attacks.
” At first, she was known simply as “the woman in the black dress.”
In a grainy video, you can see her, lying on her back, dress torn, legs spread, vagina exposed. Her face is burned beyond recognition and her right hand covers her eyes.
The video was shot in the early hours of Oct. 8 by a woman searching for a missing friend at the site of the rave in southern Israel where, the day before, Hamas terrorists massacred hundreds of young Israelis.
The video went viral, with thousands of people responding, desperate to know if the woman in the black dress was their missing friend, sister or daughter.
One family knew exactly who she was — Gal Abdush, mother of two from a working-class town in central Israel, who disappeared from the rave that night with her husband.
As the terrorists closed in on her, trapped on a highway in a line of cars of people trying to flee the party, she sent one final WhatsApp message to her family: “You don’t understand.”
Based largely on the video evidence — which was verified by The New York Times — Israeli police officials said they believed that Ms. Abdush was raped, and she has become a symbol of the horrors visited upon Israeli women and girls during the Oct. 7 attacks.
Israeli officials say that everywhere Hamas terrorists struck — the rave, the military bases along the Gaza border and the kibbutzim — they brutalized women.”
Another example:
“The Times viewed photographs of one woman’s corpse that emergency responders discovered in the rubble of a besieged kibbutz with dozens of nails driven into her thighs and groin.
The Times also viewed a video, provided by the Israeli military, showing two dead Israeli soldiers at a base near Gaza who appeared to have been shot directly in their vaginas.
Hamas has denied Israel’s accusations of sexual violence. Israeli activists have been outraged that the United Nations Secretary General, António Guterres, and the agency U.N. Women did not acknowledge the many accusations until weeks after the attacks.”
A third example and I must caution that this account is very explicit.
“Sapir, a 24-year-old accountant, has become one of the Israeli police’s key witnesses. She does not want to be fully identified, saying she would be hounded for the rest of her life if her last name were revealed.
She attended the rave with several friends and provided investigators with graphic testimony. She also spoke to The Times. In a two-hour interview outside a cafe in southern Israel, she recounted seeing groups of heavily armed gunmen rape and kill at least five women.
She said that at 8 a.m. on Oct. 7, she was hiding under the low branches of a bushy tamarisk tree, just off Route 232, about four miles southwest of the party. She had been shot in the back. She felt faint. She covered herself in dry grass and lay as still as she could.
About 15 meters from her hiding place, she said, she saw motorcycles, cars and trucks pulling up. She said that she saw “about 100 men,” most of them dressed in military fatigues and combat boots, a few in dark sweatsuits, getting in and out of the vehicles. She said the men congregated along the road and passed between them assault rifles, grenades, small missiles — and badly wounded women.
“It was like an assembly point,” she said.
The first victim she said she saw was a young woman with copper-color hair, blood running down her back, pants pushed down to her knees. One man pulled her by the hair and made her bend over. Another penetrated her, Sapir said, and every time she flinched, he plunged a knife into her back.
She said she then watched another woman “shredded into pieces.” While one terrorist raped her, she said, another pulled out a box cutter and sliced off her breast.
“One continues to rape her, and the other throws her breast to someone else, and they play with it, throw it, and it falls on the road,” Sapir said.
She said the men sliced her face and then the woman fell out of view.
Around the same time, she said, she saw three other women raped and terrorists carrying the severed heads of three more women.
Sapir provided photographs of her hiding place and her wounds, and police officials have stood by her testimony and released a video of her, with her face blurred, recounting some of what she saw.
Yura Karol, a 22-year-old security consultant, said he was hiding in the same spot, and he can be seen in one of Sapir’s photos. He and Sapir were part of a group of friends who had met up at the party. In an interview, Mr. Karol said he barely lifted his head to look at the road but he also described seeing a woman raped and killed.”
A fourth and final graphic example, although I should emphasise that these examples have been randomly selected from Mr Gettleman’s article:
“Hours later, the first wave of volunteer emergency medical technicians arrived at the rave site. In interviews, four of them said that they discovered bodies of dead women with their legs spread and underwear missing — some with their hands tied by rope and zipties — in the party area, along the road, in the parking area and in the open fields around the rave site.
Jamal Waraki, a volunteer medic with the nonprofit ZAKA emergency response team, said he could not get out of his head a young woman in a rawhide vest found between the main stage and the bar.
“Her hands were tied behind her back,” he said. “She was bent over, half naked, her underwear rolled down below her knees.”
Yinon Rivlin, a member of the rave’s production team who lost two brothers in the attacks, said that after hiding from the killers, he emerged from a ditch and made his way to the parking area, east of the party, along Route 232, looking for survivors.
Near the highway, he said, he found the body of a young woman, on her stomach, no pants or underwear, legs spread apart. He said her vagina area appeared to have been sliced open, “as if someone tore her apart.””
The South African legal team argued that this context does not matter. In that argument it virtually denies the nature and horror of the Hamas attack. This was no accidental or opportunist act of violence. It displayed the hallmarks of the Business of Genocide – careful planning, co-ordinated multiple attacks, the brutalisation and dehumanisation of the victims.
South Africa argued that the threat of genocide or terrorism may give Israel a right to defend itself, but it does not provide legal or moral justification to commit crimes against Palestinian civilians. This is incontestable, yet that approach diminishes and indeed virtually obliterates the role that Hamas played and continues to play in this conflict. This has serious consequences and they cannot be ignored.
There is another context that needs to be considered. Since its foundation Israel has been under sustained attack from its neighbours. The illustration below graphically shows the history of assaults on Israel.
It is clear that the latest Hamas attack is not isolated and represents part of a continuing threat to the existence of Israel and its people. What has happened over the years suggests a sustained effort to eliminate Israel and its people. Yet this context is blithely brushed off by South Africa.
Smith notes the rather ambivalent approach by South Africa to the issue of genocide.
“Being selective about whom it calls out for international crimes is not new for South Africa. This genocide case is the first that the country has brought to the court.
Survivors of the Darfur genocide must be bewildered that South Africa would bring an action against Israel yet fail to have done so against Sudan.
In fact, South Africa specifically declined to act on the International Criminal Court’s warrant for the arrest of al-Bashir when he visited the country in 2015. Instead of sending him to The Hague, South Africa allowed him to return to Sudan. That same year, al-Bashir added to his genocidal record by providing aid for the paramilitary Rapid Support Forces in their war in Darfur, where they burned villages and raped women.
South Africa’s selectivity has continued to this day. The RSF’s warlord, known as Hemedti, recently undertook a tour of African countries. Just days after South Africa submitted its application against Israel, Hemedti was welcomed by South Africa’s president, Cyril Ramaphosa. As the two shook hands, Hemedti’s militia was completing its decades-long campaign of ethnic cleansing in Darfur.
In light of such partial application of international law against genocide, Israel may well feel unfairly targeted. Many in Israel believe that the war in Gaza must be pursued until Hamas is finished. But even if that aim is achieved, the horrors of the present conflict are radicalizing a new generation of Palestinians. That outcome will only set the stage for perpetual war, a bad security strategy for any state’s long-term survival.”
The ICJ needs to recognize the genocidal threat that Hamas represents even as it requires the Israeli government to account for why so much of Gaza has been turned into an uninhabitable wasteland and why so many Palestinian civilians have been killed. It is clear that it has not done so.
Indeed, the Business of Genocide seems to continue within Hamas and Hezbollah. Indeed it could well be inferred that a Middle Eastern equivalent of the Wannsee Conference has taken place – probably in Tehran.
