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The genocide case against Israel at the ICJ By Kashif Mirza

Byadmin

Jan 13, 2024

The writer is an

economist, anchor,

analyst and the

President of All

 Pakistan Private

Schools’ Federation

president@Pakistan

privateschools.com

The International Court of Justice (ICJ) began hearing arguments in a genocide case against Israel filed by South Africa, setting off the most significant international challenge yet to Israel’s war in Gaza.  South Africa says Israel is committing genocide against the Palestinians in its war in Gaza. It is also asking the court to order Israel to cease its military activity. The ICJ is the United Nations’ highest court. South Africa brought this case at the ICJ against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide, also known as the Genocide Convention, to which both states are parties. The Genocide Convention defines genocide as specific “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” Some of the acts against members of the targeted group include killings, serious physical or mental harm, measures designed to prevent future births, or conditions purposefully designed to physically destroy the group or part of the group. The Genocide Convention allows any state party to bring a case against another state party to the ICJ on issues including responsibility for genocide, conspiracy to commit genocide or attempt to commit genocide. The International Court of Justice was established after World War II in 1945 by the United Nations Charter to settle disputes between countries. The U.N. General Assembly and Security Council elect the court’s 15 judges to nine-year terms. The current elected judges are from the following countries: Australia, Brazil, China, France, Germany, India, Jamaica, Japan, Lebanon, Morocco, Russia, Slovakia, Somalia, Uganda, and the United States. In February 2024, four judges from Jamaica, Morocco, Russia, and the United States will finish their terms and be replaced by incoming judges from Mexico, Romania, South Africa, and the United States. It is the main judicial body of the United Nations (UN) and all member states can bring cases before it under treaties, by agreement, or another form of consent. Certain organizations can also ask the court to issue a non-binding advisory opinion on a legal question. The ICJ rules on questions of state responsibility—that is, on when a state has violated a rule of international law or an international legal obligation. It is not a criminal court and does not decide on individual criminal responsibility. A different, unrelated court in The Hague, the International Criminal Court, serves this function, and South Africa, with other like-minded states, has already referred the situation in Gaza to it for investigation. Under international law, genocide is defined as committing one or more acts with the intention to destroy, in whole or in part, a national, ethnic, racial or religious group. Those acts are: killing or 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 imposing measures intended to prevent births within the group forcibly transferring children of the group to another group. The Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention allow as provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court, the Court must take provisional measures in order to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention and to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide, which shall have priority over all other cases. Indeed, the acts and omissions by Israel are genocidal in character, as they are committed with the requisite specific intent to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, and ethnical group, and the conduct of Israel through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.

South Africa requested the ICJ to order Israel, among other things, to suspend its military operations, take all measures necessary to prevent genocide, and to refrain from killing, injuring, or committing other acts constituting genocide against Palestinians. With the genocide case against Israel, South Africa Challenged Western-led Order. 

Genocides are never declared in advance, all the Israeli’s actions are enough proof of genocidal intent. Mass killings of Palestinians are the first genocidal act in Gaza. As the number of Palestinians killed in Gaza by Israeli operations since October 7 now stands at more than 24,000 including 11,000 plus children, the strip’s Hamas-run health ministry has said. It added that 60,697 Palestinians were injured during the same period. The World Health Organization (WHO) says only 12 out of Gaza’s 36 hospitals are partially functioning. The nine hospitals in the south are operating at three times their capacity while facing critical shortages of basic supplies and fuel for generators. UN agencies say 40% of Gazans – 576,600 people – have exhausted their food supplies and coping capacities and face catastrophic hunger and starvation. According to Unrwa, the UN agency for Palestinian refugees, 1.9 million Gazan residents – about 85% of the population – have been displaced, and 1.4 million of them are sheltering in its facilities. Every day is a struggle for survival. Israel has deployed highly destructive 2000-pound bombs in parts of Gaza that it has itself declared safe. More than 1,800 families have lost multiple family members, while some families do not have any survivors left, even no one has been spared, not babies, and especially not children. Indeed, the Gaza Genocide is not about the claims of Israel protecting itself, but, this is all about oil. Indeed, IDF’s Gaza war is to get illegal possession and control of Palestinian gas, focused on the 1.4 trillion cubic feet of natural gas discovered in 2000 off the Gaza coast, valued at $524 billion to avert the Israeli energy crisis. The Israeli Defense Forces (IDF) military’s brutal attacks in Gaza are the deadliest and most destructive criminal war in recent history, but Israelis look in vain for any sign of victory. Moreover, Israel also arrested a large number of Palestinians, including children, who were undressed and loaded onto trucks going to unknown locations. The suffering of the Palestinian people, physical and mental, is undeniable. By forced displacement and food blockade, Israel has deliberately imposed conditions that cannot sustain life and that are calculated to bring about the destruction of Gaza through its forced displacement of most of the population. Thousands of families have been displaced multiple times, with a million now having no homes to return to. Israel gave entire hospitals orders to evacuate within 24 hours with no assistance in moving the injured or in moving medical supplies. It did the same with large parts of northern Gaza, where more than one million people were asked to move at short notice, that order itself was genocidal. Israel has also blockaded food and water from the Strip, causing widespread hunger, and it has removed the ability to distribute what is available by restricting the movement of aid workers. Israel has also deliberately imposed conditions denying Palestinians in Gaza adequate shelter, clothes, bedding, and other critical non-food items. There’s no safe water to drink, clean, and cook, and disease cases, including diarrhea, are soaring. Palestinians may die from hunger and disease, yet the siege continues. The fourth genocidal action is Israel’s military assault on Gaza’s healthcare system that renders life there unsustainable. Gaza’s healthcare was already crippled by years of attack by Israel, and now, it is simply unable to cope with the sheer number of injured people who need life-saving treatment. Preventing Palestinian births is the fifth genocidal action of Israel, which is blocking the life-saving treatment needed to deliver babies. This amounts to preventing births in Gaza and is an act of genocide. Moreover, the reproductive violence inflicted by Israel on Palestinian women, newborn babies, infants, and children qualified as acts of genocide. The Israeli officials’ statements are further proof of intent. In particular, PM Netanyahu’s comments on October 28 when the prime minister urged troops preparing to enter Gaza to “remember what Amalek has done to you,” – a biblical command from God to entirely destroy a group. The destruction of Palestinian life is articulated by state policy. During its oral argument, Israel vehemently denied all allegations that it was responsible for genocide and argued that its actions were in self-defense, following Hamas’s October 7 attacks. Israel framed its actions under the right of self-defense in the war against Hamas but acknowledged that Hamas’s actions do not absolve Israel of its legal obligations. Israeli officials have railed against the South Africa suit. Prime Minister Benjamin Netanyahu said South Africa presented hypocrisy and lies at the court. Many Muslim, and non-Muslim countries and international organizations including the UN and OIC have rallied behind South Africa in its case. Whereas, Israel has seen backing from the United States, its main weapons supplier and diplomatic patron.

South Africa’s ruling African National Congress has long shown its support for Palestinians and backed their right to self-determination, considering them to be subject to a long-standing regime of apartheid-like South Africa. With the genocide case against Israel, South Africa Challenged the Western-led Order. After arguing its genocide case against Israel at the International Court of Justice, South Africa won praise for standing up for Palestinians under Israeli bombardment in Gaza. In the case of genocide against Israel, South Africa states in its application to institute proceedings that no armed attack on a State’s territory no matter how serious—even an attack involving atrocity crimes—can, however, provide any possible justification for violations of the Genocide Convention. The case itself will likely take many years to conclude. Prior cases under the Genocide Convention at the ICJ against Serbia, for example, took more than a decade before a final decision was issued. Due to the urgency of provisional measures and the risk of irreparable harm, this phase takes priority over all others and must be resolved in a few days.  Importantly, the court will not be ruling on whether Israel has committed genocide at this phase—it will only rule on provisional measures. Right now, however, the court is addressing South Africa’s request for provisional measures. Provisional measures are emergency measures the court can order the parties to take to prevent irreversible damage to a right directly linked to the case at issue. South Africa requested the ICJ to order Israel, among other things, to suspend its military operations, take all measures necessary to prevent genocide, and to refrain from killing, injuring, or committing other acts constituting genocide against Palestinians. Orders from the court, including on provisional measures, are binding on the parties but the court does not have its own enforcement mechanism. For a situation to constitute genocide, therefore, both the specific acts and the specific intent to destroy a group must be proven, and the intention by the responsible actors to destroy a group, completely or in part, must be demonstrated. To drive its arguments home, the South African legal team not only proved that the indiscriminate mass killings and genocide are indeed happening but also proved that there is an intent to commit these acts in Israel. No doubt, Israel has committed and failed to prevent genocidal acts, including mass killings, serious bodily and mental harm, and imposing conditions intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnical group, that being part of the Palestinian group in the Gaza Strip. Israel has failed to prevent or punish the direct and public incitement of genocide by senior Israeli officials and others. Indeed, Israel has violated its obligations under the Genocide Convention; that it must stop any genocidal acts; ensure that people committing or inciting genocide are punished; collect and preserve or allow for the collection and preservation of evidence of genocidal acts against Palestinians in Gaza; and issue reparations, including allowing displaced Palestinians to return to their homes, reconstruct what it destroyed in Gaza, and ensure respect for the human rights of Palestinians in Gaza, among others.

By admin

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