Much of the world was riveted for two days earlier this month as lawyers chastised and defended Israel on the floor of the International Court of Justice in South Africa’s lawsuit alleging that Israel has been violating its obligations under the Convention against Genocide. In entrancing courtroom advocacy on Jan. 11-12, lawyers for South Africa argued that the Israel Defence Forces have been committing genocide in Gaza since October, encouraged by inflammatory public tirades of command officials in the Israeli government, and that the Israeli government had either condoned or failed to punish influential Israeli officials or personalities who had engaged in direct and public incitement to commit genocide.
Apart from committing genocide or being complicit in it, direct and public incitement to commit genocide is also a crime in itself, forbidden under article III(c) of the Convention against Genocide. As reflected in its long title — the Convention on the Prevention and Punishment of the Crime of Genocide — parties to the Convention are obligated not only to refrain from committing or aiding and abetting genocide by their own conduct, but also to repress and punish direct and public incitement to commit genocide. Measure for measure, lawyers for Israel pushed back against the arguments of South Africa’s lawyers with equal professional acumen.
There is much value in countries bringing these kinds of cases to the ICJ, the principal judicial organ of the United Nations: not least because the Organization’s political bodies have too often utterly failed to find a resolution. Such solemn proceedings have the minimum value of forcing the international community to confront the problem of armed conflicts that it must confront, even if the only way left to do that is through the international judicial system established precisely to resolve international disputes, where judges must necessarily cut through the political noise and partisan bias to answer questions of law. The more important question is whether countries who bring these cases could do more with it, in terms of who they sue and the issues they raise.
The Alignments
As with most issues concerning the Israeli-Palestinian dispute, some countries and international personalities promptly made their alignments known. Some saw much merit in South Africa’s case, where others saw none at all. Germany, the U.K., and the United States notably belong to the latter camp. To be sure, some of the States that deny the merits of South Africa’s case have their own good names to worry about, given the potential fallout from the lawsuit. That is because some of them have openly ramped up or offered a practically unlimited supply of weapons to Israel to facilitate its campaign in Gaza. For instance, counsel for South Africa dwelt at length on Israel’s dropping of hundreds of 2,000-pound bombs in Gaza, alleging that such a practice was among the ways that it committed genocide there. And it is the United States that has supplied technology and equipment to deploy such munitions. That aspect of these developments inevitably raises the question whether the States that knowingly supplied the weapon systems that Israel used should also worry about the logical conclusion that they, too, have been guilty of complicity in genocide (under article III(e) of the Convention], should the ICJ agree that Israel committed genocide in its military campaign.
It is thus unsurprising that Antony Blinken, the U.S. Secretary of State, should dismiss South Africa’s case as “meritless,” arguing that it “distracts the world” from efforts to find a lasting solution to the conflict. Mary Robinson (former President of Ireland, former U.N. High Commissioner for Human Rights, and the current Chair of The Elders) disagreed. She tweeted, amongst other things, that “South Africa has shown moral leadership in bringing its application to the ICJ under the Genocide Convention, to protect the Palestinian people in Gaza. It is right and proper that Israel is answering these charges in a court of law.”
Blinken may be entitled to the view that South Africa’s case is unfounded. So, too, may Robinson be entitled to hold the opposite view. But it would not be right, in my view, to suggest that a lawsuit that evidently seeks to stem the manmade death and desolation the whole world is seeing in Gaza “distracts the world” from efforts to find a lasting solution to the Israeli-Palestinian conflict, which is at the very heart of this latest flareup. For one thing, it is not insignificant that the conflict has provoked fears of a wider regional spread. Consistent with Washington’s long-standing concern in that regard, the U.K.’s top military officer, its chief of Defence Staff put it in terms that the resulting tensions “risk inflaming an arc of instability” in the region. Such a spread would no doubt result in death to even more innocent civilians on all sides, more young Israelis would lose their lives fighting that wider war, and a return to peace would become even more elusive than it already is.
The Dysfunction of the UN Security Council
The post-World War II international order was specifically configured to find lasting solutions to “the scourge of war” (as the preamble to the U.N. Charter declares), which too often produces “unimaginable atrocities that deeply shock the conscience of humanity” (as the preamble to the Rome Statute laments). It was in that light that States adopted multilateral treaties to prevent genocide, protect human rights, and repress war crimes.
The United Nations was to be the main clearinghouse for those efforts to foster and promote international peace and security. Within the U.N., the primary mandate for such solutions lies with the Security Council. But the Council has become hopelessly dysfunctional. This is because each of five permanent members of the Council — China, France, Russia, the U.K., and the United States – enjoy veto power over any actions the body might consider. Some of these States have shown no qualms in wielding that power to block meaningful political action. China, Russia, and the United States are the greatest culprits, in the selfish determination to protect themselves or their client-states, using the veto. Other States take sides blindingly based on allegiance to political friends or political mortgagees, apparently essentially untroubled by the broader interests of humanity. The result is that there are no solutions at all, let alone lasting solutions for some of these most heart-breaking predicaments.
The Remaining Option for International Peace and Security
Since lasting solutions cannot be found within the political organs of the U.N., solutions must be sought elsewhere. Consequently, The Gambia felt compelled to bring proceedings at the ICJ, seeking to restrain and redress the violence that Rohingyas endured in Myanmar, following China’s and Russia’s use of their veto to block any solution at the Security Council. Similarly, Canada and the Netherlands brought proceedings against Syria, following Russia’s consistent use of its veto to block Security Council resolutions concerning Syria. Ukraine, of course, brought proceedings at the ICJ for Russia’s invasion in 2022; Russia, naturally, had vetoed any action at the Security Council in relation to that act of aggression.
In the same manner, South Africa brought its lawsuit at the ICJ, after the United States had blocked the adoption of resolutions at the Security Council calling for an immediate humanitarian ceasefire in the face of the carnage and desolation that began with the Hamas attack against Israel on Oct. 7, 2023. According to a U.S. Congressional Research Service report updated on Jan. 11, the first day of the ICJ public hearings, Hamas had reportedly killed 1,200 Israeli and foreign nationals (including 35 Americans) and took about 240 hostages in that operation; and, in response, the Israeli Defence Forces have reportedly killed more than 23,000 Gazans and destroyed or damaged in excess of 60 percent of Gaza’s housing units. (Israel announced on Jan. 17 that the total number of hostages taken on Oct. 7 was 253. During a several-day pause in fighting in late November, 110 hostages were released. As of Jan. 21, Gaza’s health ministry reported that the number of Gazans killed since the war has exceeded 25,000.)
Obligation Owed to the Whole World
Since The Gambia, Canada, and the Netherlands, and, now South Africa, are not direct victims of the actions that inspired their lawsuits at the ICJ, on what basis, then, are they allowed to bring these legal proceedings? The proper anchor for these legal processes rests mainly on the theory of duty that international lawyers call an obligation erga omnes. According to that theory, the obligation to protect human rights and humanity from serious violations — the obligation embodied in the treaties relied upon in these lawsuits — is an obligation owed to the whole world. Therefore, any country (whether or not affected directly by the alleged or apparent violation) is entitled to bring legal action to ensure continued protection of those interests or to vindicate them.
Consequently, it is entirely wrong to criticize South Africa for daring to launch a lawsuit that asks the most authoritative jurists in the world to tell us whether the Convention against Genocide has been violated. It must be noted here that the only way that a country may present such questions to the ICJ is by making pointed and direct allegations about the question it wishes the Court to answer, allegations that the accused State accused will necessarily deny, and thereby generating the “existence of a dispute” that warrants the Court’s intervention. According to the existing jurisprudence of the ICJ, it will not entertain any suit by a State unless the “existence of a dispute” has been created in such a way. South Africa cannot be faulted for following this procedure in a bid to occasion a resolution of the Hamas-Israeli war. To the contrary, it should be applauded for seeking to put an end to an already horrific war that threatens to grow longer, wider, and more costly.
Unduly Narrow Case
The more valid criticism may be that South Africa limited its case too narrowly in both the proper parties and the proper scope. It limited the parties to the proceedings by omitting to include (“implead,” in legal terms) Hamas in the suit by virtue of Hamas’s relationship to the State of Palestine. This limitation in South Africa’s case appreciably resulted from a general confusion about pleading either Hamas or Palestine as parties to ICJ proceedings. That confusion results, first, from the argument that Hamas is not a State actor and therefore there is no way to conceive of its actions as the subject of proper complaints before the ICJ. Notably, Israel and its allies are implicated in this mindset in their perfunctory description of Hamas as a “terrorist” organization. They intend, of course, that Hamas as such should enjoy no rights in international law. But, that kind of messaging can also mislead the mind to think of Hamas as beyond the formal zone of accountability in international law.
I have elsewhere faulted the thinking that Hamas is not a “State actor.” Considering that Hamas is clearly an entity exercising governmental functions in Gaza, it is mistaken, in my view, to say that it is not a State actor. A careful review of articles 4, 5, and 9 of the Articles on Responsibility of States for Internationally Wrongful Acts should reveal the possibility that the conduct of Hamas, as the regent of governmental authority in Gaza, is justiciable at the ICJ. Specifically, in the terms of Article 9 of the Articles of State Responsibility, Hamas is “in fact exercising elements of the governmental authority in the absence or default of the official authorities,” and, as such, their “conduct … shall be considered an act of a State under international law.” Since Hamas runs Gaza, a federated geographic entity of Palestine, Hamas’s conduct can anchor proceedings at the ICJ in a similar way that the conduct of the government of the state of Arizona was justiciable at the ICJ in the LaGrand Case, though the United States was the nominal respondent in the case.
The second source of confusion results possibly from the political debate about the statehood of Palestine. Again, Israel and its allies are implicated in this confusion, given their refusal to recognize Palestine as a State and, therefore, in the words of the U.S. State Department, “not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC” and presumably the ICJ.
Still, this is no reason in my view to preclude Hamas from the South African lawsuit, which can be done through the State of Palestine. Given that 139 states and the U.N. General Assembly have recognized Palestine as a State (although the United States has threatened to block Palestine’s full admission to U.N. membership as long as Israel maintains its objection in that regard), the obstacle to including Palestine in South Africa’s pleadings before the ICJ depends on the practices of the ICJ. Notably, article 35 of the ICJ Statute provides that the Court “shall be open to the states parties to the present Statute.” The provision does not limit membership to only U.N. member States.
As the Court’s website informs, U.N. member States and other States that have become parties to the Statute of the Court or thathave accepted its jurisdiction under certain conditions may be parties to contentious cases. Notably, the Court itself lists Palestine among the States that may be parties to proceedings before it, admitted to that privilege as of July 4, 2018. Of note, on Sept. 28, 2018, Palestine instituted proceedings before the ICJ, challenging the U.S. relocation of its Israeli Embassy from Tel Aviv to Jerusalem.
All this is to say that it would have been better for South Africa to also bring (implead) Hamas into the lawsuit against Israel, by making Palestine the nominal respondent in relation to the case against Hamas. Such an approach could have potentially performed a number of functions. To begin with, it would have afforded an opportunity to consider Israel’s allegation (notably made during its oral argument before the Court on Jan. 12, 2024) that Hamas’s conduct on Oct. 7 also amounted to genocide. It is true that the obligation to seize the ICJ of that question rested primarily with Israel, which has raised the prospect of that claim. But that shouldn’t have prevented South Africa from asking the Court to examine the claim as well as part of the whole picture in the ongoing Hamas-Israel war. Ukraine did exactly that in its suit against Russia, by asking the ICJ to consider the validity of Russia’s claim that its invasion of Ukraine in February 2022 was motivated by the need to repress an ongoing genocide in Ukraine against Russian ethnics.
But the more pressing reason for South Africa to include Hamas in its suit was the need to try to curb the ongoing armed conflict, by compelling both sides to stop fighting, given the U.N. Security Council’s proven inability to adopt a resolution calling for an immediate humanitarian ceasefire. During their oral submissions before the ICJ on Jan. 12, Israel’s lawyers wondered whether South Africa’s request of the Court for a provisional order to stop fighting would only tie the hands of Israel and not those of Hamas. It was a compelling argument indeed.
Note, by pointing to Hamas’s potential actions as genocide, South Africa’s application would have also properly raised the issue of other States’ obligations to repress genocide and not militarily support a group engaged in a genocidal campaign were the court to make that finding. That is the mirror image of the concerns raised with respect to the allegations against Israel and its arms suppliers.
South Africa also unduly limited the scope of its litigation by confining it only to the question of violation of the Convention against Genocide adopted in 1948 immediately after World War II. World leaders have criticized Israel’s bombings of Gaza as indiscriminate based, in part, on the shocking numbers of innocent civilians killed, including women and children, at a level unprecedented in recent history. Even leaders (notably U.S. President Joe Biden) who argued that Israel was entitled to go after Hamas in a war of “self-defense” also criticized Israel for “indiscriminate” bombing. In its own defense before the ICJ, Israel consistently said it too found the scale of civilian casualties and destruction in Gaza truly heartbreaking, and invoked statements by officials that Israel did its “utmost” and the IDF has been “doing everything possible to avoid harming those not involved.” This defense was made in spite of bewildering utterances of certain Israeli officials, as well as critical observations of some informed Israeli citizens (reportedly including soldiers), suggesting otherwise. And Israel also refused for months to slow down its military campaign, insisting repeatedly that it must keep going in Gaza until it had eliminated Hamas and that Hamas was responsible for the way that Israel conducted itself, because Hamas, among other things, uses Palestinian civilians as human shields. Hamas has denied the allegation that it uses human shields. (Below, I discuss the possibility of gaslighting denials on all sides, keeping in mind Winston Churchill’s famous dictum,“In war, truth is often the first casualty.”)
The Geneva Conventions and International Humanitarian Law
So, where do these allegations and denials leave the civilians of Gaza, as the death and destruction mount?
The Geneva Conventions of 1949 and their First Additional Protocol of 1977 are part of a system of international law norms that seeks, among other objectives, to protect vulnerable civilians during war. Israel, Palestine, and South Africa are all parties to the 1949 Conventions. Palestine and South Africa are also parties to the 1977 Additional Protocols. Although Israel has not ratified the 1977 protocols, it has nevertheless declared itself “fully committed to the customary law rules that are reflected in some of their provisions.”
Consider that Article 1 common to the 1949 Geneva Conventions enshrines the undertaking of the Parties “to respect and to ensure respect for the present Convention in all circumstances.” Article 1(1) of the First Additional Protocol says the same thing. Among other things, the 1949 Conventions list as grave breaches the willful killing and willful infliction of great suffering to civilian populations and the extensive destruction of their property beyond military necessity; and article 3 common to the Conventions imposes a minimum floor of humane protection. The First Additional Protocol elaborates on the principles of distinction, proportionality, indiscriminate attacks and so on. Those principles are part of customary international law, which binds all nations including Israel. In any war in which there are political accusations and denials about violations of these norms, it should be legally proper to pose the attending legal questions to the ICJ, as a matter of obligations erga omnes — just as the case of Canada and the Netherlands against Syria is about violation of the Convention against Torture.
It is clear that South Africa brought its case under the authority of article IX of the Convention against Genocide, which provides as follows: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
It is possible that South Africa’s omission to bring within its case compliance with international humanitarian law is because the Geneva Conventions contain no provision couched in similar terms as article IX of the Convention against Genocide (or like article 30 of the Convention against Torture). But, that presents no real obstacle to seeking compliance with IHL through ICJ proceedings. First, to say that a case cannot be brought to the ICJ unless there is a treaty that has the equivalent of article IX of the Convention against Genocide is to construe the idea of resolution of international “disputes” much too narrowly. If article 33(1) of the UN Charter is to have the intended purpose of disincentivizing the use of force for the resolution of international “disputes,” it will then be counterproductive to insist that a State may not sue at the ICJ unless the suit is grounded on some version of article IX of the Convention against Genocide. Second, articles 40, 48(1)(b) and 48(2) of the Articles on Responsibility of States for Internationally Wrongful Acts do not support such a narrow approach as regards the enforcement of peremptory norms of international law, which include international humanitarian law. Finally, and more to the point, article 1 common to the Geneva Conventions effectively serves the same purpose as article IX of the Convention against Genocide. It imposes upon the High Contracting Parties to the Geneva Conventions an obligation “to ensure respect for this Convention.” As the 2016 commentaries of the International Committee of the Red Cross suggest, that obligation is quite broad. (See paragraphs 153 to 173.) It is certainly broad enough to accommodate judicial proceedings at the ICJ for purposes of compliance. In sum, South Africa (or any other State) has ample legal grounds, on the basis of obligations erga omnes, to bring an application to the ICJ for a determination whether Israel or Hamas violated international humanitarian law in the Gaza war beginning with the events of Oct. 7 in Israel.
Judicial Independence
Additionally, some may wonder about the fate of judicial independence in these politically charged cases. The present case, for instance, has ad hoc judges from South Africa and Israel on the bench. A peculiar practice at the ICJ, ad hoc judges are appointed when the regular bench of the Court has no national from the States that are parties to the lawsuit: those parties may then nominate ad hoc judges (who need not be a national of the nominating State) to complement the bench. In South Africa v Israel, the question of judicial independence necessarily goes beyond the involvement of the ad hoc judges from South Africa and Israel. Also on the bench are judges (notably from the United States, Germany, and Lebanon) whose States are known to align themselves with Israel or with Palestine as a matter of national foreign policy.
In the absence of evidence to the contrary, these judges must and do enjoy the presumption of judicial independence. That presumption has real value. In 2016, when I was on the bench of the International Criminal Court, I had occasion to specifically reject a preference that Nigeria’s President Goodluck Jonathan had indicated in a press conference on behalf of the African Union in relation to the question of immunity of heads of State before international criminal courts and the ICC in particular. President Jonathan, I should mention, was the Nigerian president who nominated me for election as an ICC judge and played an important role in the diplomatic outreach for my successful election, and that nomination had also been endorsed by the African Union. Adjudication according to personal conscience is a cherished attribute amongst judges of international courts, including the ICJ. There is no reason to expect a different attitude from any of the judges adjudicating the South Africa v Israel case, including the ad hoc judges appointed by Israel and South Africa.
ICJ Serves Again as Crucial – and Natural — Venue
It is entirely wrong to criticize judicial proceedings before international courts invited by concerned parties to intervene in acute life-and-death questions of use of armed force that the world’s political structures have been unable to solve. The Israeli-Palestinian conflict, for instance, has endured for more than 70 years, with no lasting solution found. The latest manifestation is the bloodbath and massive destruction carried on in the last 100-plus days, starting with the Hamas attack in Israel on Oct. 7. There is eminent value in using litigation to review what is going on and how we got here, with lawyers on both sides making their case.
Thus far, politicians—especially those in Washington, London, Berlin, Ankara, Teheran, Beirut, Tel Aviv (Jerusalem) and Ramallah—have dominated the discourse and the field of play in the Israeli-Palestinian conflict. And they have nothing to show for it, but bloodshed and misery for innocent civilians in Israel, Lebanon, and Palestine. Their colleagues in Pretoria, despite their own political preferences, must be commended for inviting the foremost jurists of the world to help find some solutions.
Indeed, the paradox is inescapable that since the Kellogg-Briand Pact of 1928, States have agreed to renounce war as an instrument of State policy and to use peaceful means instead, including adjudication, to resolve differences “of whatever nature or of whatever origins they may be.” That doctrine, which puts judicial proceedings ahead of the use of force as means of resolving international disputes, was then brought forward in articles 2(3) and 33(1) of the U.N. Charter. In any circumstance in which there is serious concern that the continuing war in Gaza risks broadening the conflict in the region or beyond — after all, the seed of World War I was far less dramatic — it is startling indeed that any responsible State would support continuing the armed conflict in Gaza that has killed so many and destroyed so much, when no effort had been made meaningfully or at all to use peaceful means of settlement. No State and no leader would be correct to criticize the use of judicial proceedings as a last resort to try to stop a war, the infernality of which is apparent to all.
For its part, Israel must be commended for appearing before the ICJ to address the allegations levelled against it in the case brought by South Africa. That is how the rule of law works. Since the ICJ’s jurisdiction is largely based on consent (forum prorogatum), some States have found it safer to avoid giving that consent to jurisdiction in suits brought against them, in hopes of frustrating judicial inquiry into their conduct. But States that show up communicate confidence that they have nothing to hide. It is hoped that Israel would join the International Criminal Court (ICC) in that spirit, and contribute its talent in helping to build a judicial institution that will assist in making the world a better place for humanity. No State should fear the prospect of miscarriage of justice at the ICC—a court whose judges have a famed reputation for verdicts of acquittal if a case is not proved beyond reasonable doubt.
What’s more, such judicial proceedings help to quell the cacophony of recriminations — allegations, denials and counter-allegations of genocide, war crimes, apartheid, crimes against humanity, and wars of aggression, as the case may be – that these events invariably generate. These are legal concepts, and these lawsuits invite the trained legal experts — specifically international judges assisted by briefs and arguments of able counsel – to tell the world whether there is merit in such allegations, so that they are not left at the level of defamatory political insults or gaslighting denials.
Above all, international courts now seem the last hope of humanity — in a world where the vectors of military power maximize the possibilities of science to kill and destroy in war, while doing their best to minimize the ability of the United Nations to restrain the scourge of war that was the organization’s very reason for being.
Photo credit: International Court of Justice courtroom on the first day of hearings for Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Thursday, January 11, 2024 (UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ)
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