The Genocide Conventionof which both countries are part, establishes that, in the event of conflict or difference regarding its application, the parties have to formalize the dissent before requesting intervention, via request, from the Court. Israel denounced that South Africa informed it of its position, but did not give it the opportunity in a meeting to debate the issue, which has assumed the existence of a conflict of interpretation that has not occurred.
According to the rules, however, there are two models to initiate a procedure. One is the one that Israel has pointed out. That is to say the two countries notify the Court of a bilateral document. The agreement, where the words plaintiff and defendant do not yet appear, indicates the precise object of the controversy and the identity of the parties.
But it’s not the only one. The other is the presentation of a unilateral request of the plaintiff state with the defendant. In this type of request, the plaintiff is required to provide a description of the parameters by which the ICJ is concerned (for example, the Genocide Convention, whose jurisdiction is mandatory) and a clarification of the facts on which his or her request is based. This is the path chosen by South Africa on December 29, 2023 after informing, by note verbale to Israel on December 21, that it wanted to debate the controversy, a circumstance that ultimately did not take place.
Stop the offensive in Gaza
This procedure, which will take years of judicial processing, has only just begun in the hearings last Thursday and Friday because South Africa asks the Court to apply urgent provisional measuressuch as, for example, an order to Israel to stop its military offensive in Gaza because the death of 23,000 Palestinians from October 7, 2023 it would “plausibly” traits of “extermination” or systematic elimination of a human group due to race, ethnicity, religion, politics or nationality.
The court will make a decision quickly because it is an urgent request (the equivalent of an urgent precautionary measure in the Spanish legal system) and because, furthermore, On February 6, the mandates of four magistrates expire who are going to be replaced, among them that of the president, the North American judge Joan Donoghue.
The interventions of the representatives of Israel last Friday the 12th were based on their conception of the type of war their country is promoting in Gaza, regardless of the critical situation in the West Bank after October 7, with daily episodes of ethnic cleansing.
This conception consists of point out that Hamas poses an existential threat to Israel and also for the Middle East and that it is necessary to end as soon as possible the government of Gaza, in the hands of the political leaders of Hamas, and its military organization.
The Israeli lawyers have emphasized that the Israeli Armed Forces (IDF) are careful with the civilian population and that they try to minimize “collateral damage” through a systematic warning to civilians, by radio and through leaflets, that they must leave the houses and compounds that are going to be military objectives. With everything, these noticeswhich the laws of the Geneva Convention require, They do not replace the necessary adoption of measures to protect the population, for example, with the selection of the type of ammunition and weapons used. And yes, as Israel has admitted, its IDF dropped two 2,000-pound (907.2 kilogram) bombs supplied by the United States in its attacks on the Jabalia refugee camp in northern Gaza in early November.
Comply with “proportionality”
The Israeli army, therefore, does not consider the rules of “proportionality” to be mandatory;. Although it justifies everything with the Hamas attack on October 7, in its repeated incursions into Gaza over the years prior to 7/10, it did not take them into account either.
South Africa insists that although war crimes are not discussed in The Hague, Israel fails to comply with the Geneva protocols on proportionality. Protocol 1 converted into customary international law prohibits attacks that may “cause loss of life, injury to civilians, damage to civilian objectives, or a combination of these that would be excessive in relation to the direct military advantage anticipated.” Israel, then, subordinates “proportionality” to the destruction of Hamas as quickly as possible.
Precisely, in defending military action, lawyers have pointed out that Hamas is so “embedded” in the Palestinian people that it is impossible not to attack hospitals, schools, mosques and food distribution centers. “This is the type of enemy we fight,” they explained.
It is obvious. The military leader who orders two 2,000-pound bombs to be dropped on a Jabalia refugee camp, four kilometers from Gaza City, knows what he is doing. The lawyers, precisely, assured the court on Friday that the army’s legal advisors work hand in hand to ensure that their instructions are carried out.
In their argument, the lawyers explained that all Netanyahu’s statementsministers, and military about the need to exterminate the Palestinians contributed by South Africa They were not official and they contravene Israeli strategy. That the only valid thing is the conduct of the government. But isn’t it military action that speaks for itself?
One of the most suggestive testimonies provided – page 64 of the application – was that of Ezra Yachin, a 95-year-old reservist, to whom the IDF gave a uniform to enroll in the war and harangue the troops. Yachin is a legend. Because in 1948, before the creation of the state of Israel, he participated, as a member of a terrorist organizationin the extermination of the famous Palestinian town of Dar Yassin. The news of the massacre, with Palestinians hanging from trees and women raped, terrified a large number of Palestinians who fled their lands. It was the antecedent of what in Arabic is called the first Nakba (catastrophe). First, because the Palestinians are now talking about the second Nakba.
In his speech, Yachin exhorted his young comrades in arms: “Be triumphant and finish them off, leave none behind. Erase his memory. Erase their families, mothers and children. These animals cannot continue living. If you have an Arab neighbor, don’t wait, go to his house and shoot him”
The court, therefore, has an arduous task in the next fifteen days. The pressure, assume specialists consulted in The Hague, it’s going to be very big.
The background of Myanmar
Attorney William Schabasprofessor of law at Middlesex University in the United Kingdom, defended Myanmar (formerly Burma) in Western genocide chargesagainst the ethnic group of Rhoginya of Myanmar, at the request of The Gambia. In 2020 the ICJ issued an order similar to the one now requested by South Africa to “take all measures in its power to prevent the commission of all acts within the scope of article II of the Genocide Convention, in particular to ) kill party members; b) cause serious physical or mental harm to the group; and c) cause in the group living conditions calculated to produce its physical or partial destruction and d) impose measures aimed at preventing births within the group.
In an interview with the Israeli newspaper Haaretz, Shabas noted that the “TIJ will agree on provisional measures in the Gaza casebetween them for Israel to stop its actions. Myanmar responded to the Court that it was not committing genocide. If the court now issues that order, Israel will say it is not genocide”.
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Yet Israel is not Myanmar. The Biden Administration bills – outside of Congress – the missiles and ammunition that are currently used in Gaza.
But If the order is issued and the war continues “it will be very humiliating for Israel”says Shabas. And it will also be more difficult for the United States and the coalition that supports Israel to continue their unconditional support.