by Miceál O’Hurley
THE HAGUE — Some of the most learned and influential people will gather in the halls of The International Court of Justice (ICJ) this morning as the United Nation’s top court announces its interim ruling in the matter of South Africa v. Israel. Israel is bracing itself for the decision as it stands accused of the most heinous of State crimes imaginable – the genocide of a people – the Palestinians.
It is incumbent upon the media to report based on facts. And yet we have an institutional responsibility to help shape opinion in so doing. An accusation of genocide as responsibly asserted as has South Africa alleged to the ICJ is so weighty that no media outlet or journalist, nay any human being, can stand aloof from forming an opinion based on evidence after hearing South Africa’s claims and Israel’s vigorous defense. Accordingly, Diplomacy in Ireland – European Diplomat and this journalist, who has covered this issue for decades, feels compelled to Opine on the record based on the known facts before the ICJ releases its initial findings.
We cannot remain a mere observer and reporter of events. Genocide is an offense against humanity and we all share in the universal responsibility and have an implicit, vested interest in determining the truth and deterring genocide (present and future) as well as seeking to punish those guilty of this abominable act. None of us can acquit ourselves as being worthy of our humanity by remaining passive or silent. Each of us is called by the chorus crying out from their graves to find the truth, declare it and put an end to the demise of civilians at times of war be they in Sobibor, Srebrenica, Kigali, Kherson or Khan Yunis.
Our Editorial Opinion It is our qualified Opinion that South Africa has failed at this point to establish that Israel has committed Genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). It is our unqualified Opinion that Israel’s conduct of their War on Hamas has incorporated acts inflicted on the Palestinian people so repugnant to human nature that its political decisions and martial operations have resulted in ongoing atrocities tantamount to and indistinguishable from those resulting from a genocide.
The ICJ has never found a State guilty of Genocide. By definition Genocide requires such a high bar of evidence of intent that absent evidence of a Wannsee Conference held by Israel it is difficult to believe the ICJ could arrive at a finding of Genocide. Even then, such a ruling is a matter for further arguments, interventions by States and deliberations that will extend for years to come. The ICJ is never-the-less empowered by the Genocide Convention to act immediately to issue provisional measures to protect the Palestinian people by Ordering Israel to cease its military activities that increase the number of Palestinian dead by the hour while simultaneously reducing our collective humanity.
Our Opinion will assuredly attract polarised criticism from all sides. Proponents of South Africa’s case will derisively claim we are Zionists, indifferent to the plight of the Palestinian people because we do not at this time agree that South Africa has met the burden of proof to establish a finding of Genocide as defined in the Convention. Zionists and Pro-Israel advocates will undoubtedly accuse us of anti-Semitism and being anti-Israeli because we are vocally critical of Israel’s wanton and wholesale destruction of Gaza and killing thousands of Palestinian civilians all in the name of pursuing the elusive goal of destroying Hamas.
Such criticism and derision are the price one pays for enunciating their decisions and reasoning on issues of import where contention run rampant. In this age of uninformed populist agitation and self-righteousness amongst the willfully ignorant and ill-informed that assert their assuredness because they enjoy easy access to instruments of mass social influence the act of publicly damning those whose opinions may differ from their own is all too common. Listening to the reasoning of others and contemplating the meaning of lofty and complex issues requires discipline, consideration and informed insight. Therefore, we are prepared to suffer the ‘slings and arrows’ of our detractors in the hopes of reaching decision-makers and influencing the opinions of policy shapers and accept that derision from certain quarters is the price to be paid for exercising moral courage – telling the truth even to those who will condemn you for uttering it in an effort to induce constructive change.
It has been more than 100-years since the Balfour Declaration. Some 76-years since the mass dispossessions of Palestinian lands (Nakba) in the 1948 Arab-Israeli war and 57-years has lapsed since the 1967 War brought about the enduring occupation of the Palestinian territories in the West Bank and Gaza. The time has long passed to believe that the enduring occupation of Palestinian territories by Israel and continued denial of a 2-State solution providing Palestinians with self-governance is an answer to ending the perpetual cycle of violence between Israelis and Palestinians. To the contrary – it is the driver of conflict.
Israelis and Palestinians are not alone to blame. The international community has for too decried the violence and plight of the Palestinian people without opening its doors to Palestinian refugees or working constructively to bring about a solution and in so doing allowed this enduring open wound in the Middle East to disfigure our collective humanity. The ongoing misery experienced by Palestinians and Israelis alike serves as an insult to our collective ability as a world community to devise an enduring solution rooted in the universal, democratic values of self-determination and the inalienable right of every human to live in dignity without resorting to the diminishment of another.
ICJ History Indicates Likelihood Provisional Measures May Be Ordered
This morning the ICJ must resolve that it has jurisdiction. Under Article 36. of the Statute of the International Court of Justice, “the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force… In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court”. Previous preemptive challenges by States accused of genocide before the ICJ claiming the ICJ lacks jurisdiction have failed in each instance.
Israel rebutted South Africa’s claims of Genocide arguing that the complaint before the ICJ was governed by the laws of armed conflict most commonly referred to as International Humanitarian Law (IHL). The preemptive defense of claiming the right of self defense and that proof of having intent to commit genocide is logical. And yet, the preponderance of evidence and an appeal to reason for anyone that watches the evening news compels us to believe that the ICJ would likely find prima facie cause to assert jurisdiction and be concerned that the Palestinians deserve protection while the ICJ process of adjudication unfolds. If the Court keeps to its tradition of granting provisional measures, given the fact pattern argued by South Africa, it is likely that the ICJ will Order provisional measures to protect Palestinians despite Israel’s vociferous objections.
The ICJ has adopted a positive posture of extending the cloak of the protection of law in previous cases making orders to cease lethal operations in order to protect civilians when Genocide has been plead. To protect Bosniaks, Rohingya, Ukrainians and others the ICJ has ordered belligerents to cease military operations while its multi-year deliberations over Genocide progress. It is worth noting, that while the ICJ has in the past found that States have failed to prevent Genocide it has yet to issue a finding of Genocide against a defending State.
The ICJ’s lack of finding to date that a State has engaged in Genocide is not a failure of the Court but rather a reflection of the high bar set for the determination of what constitutes Genocide. This is appropriate and yet will prove frustrating to the multitudes who bandy about accusations of Genocide in almost every conflict. Raphael Limpkin, the Polish lawyer who first coined the term Genocide hoped the Genocide Convention would prohibit similar future acts of barbarity. And yet when he died, impoverished in a hovel of a one-room flat on New York’s Upper West Side, he realised his definition for Genocide may have been so lofty that it would never be applied. His fears have come to pass – at least to date.
Seeking to protect the Palestinian people while it considers the merits of the case is not only worthy but humane and the power to do so is rooted in the Genocide Convention itself. Albeit, the ICJ has no enforcement mechanism and through its Prime Minister Benjamin Netanyahu, Israel has declared that it has no intention of being governed by a decision of the ICJ unless it is in their favour. Whatever the ICJ decides today, if past Orders for provisional measures in genocide cases are an indicator, any imposition of provisional measures by the ICJ will have little, if any, effect in immediately deterring further deaths. Experience has shown that preliminary measures become reduced to a feeble condemnation in the realm of international and political relations. Palestinians and the world community deserves better.
It is a perversity of our times that the very Convention that arose from the Holocaust in which millions of Jews were pursued for extermination in World War II, having the goal to prevent and punish future genocides – an achievement so majestic that upon emerging as a State Israel became a voluntary, willing, cardinal and eager signatory to this international law, the ICJ and the Genocide Convention have now become anathema to the Prime Minister of Israel and his War Cabinet. It is no wonder that so many survivors of the Shoa have publicly decried Israel’s conduct of its War on Hamas and cried “Shame!” at the escalating death tolls of Palestinian civilians? There seems to exist a deep chasm in the heart of Israelis between their national identification and their Jewish faith which inherently calls them to Tikkun olam – acting to perfect a broken world. For Orthodox Jews their religious commitment to Judaism calls them to reject Zionism – the establishment and maintenance of a Jewish State in Palestine – and current events again beg the question for every Israeli, “Are Zionism and Judaism compatible ethics and values“?
What Might Provisional Measures Be in South Africa v. Israel?
In the matter of Ukraine v. Russian Federation the ICJ Ordered provisional measures against Russia. The ICJ noted in its findings that they were not bound to grant provisional measures specifically as requested by the complaining party, Ukraine. Still, the ICJ was unequivocal in its language to act to protect Ukraine and civilians from further harm in Ukraine v. Russian Federation:
Indicates the following provisional measures at VI. Operational Clauses (Para 86) (1) By thirteen votes to two, The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine; (2) By thirteen votes to two, The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above; (3) Unanimously, Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
Despite being a signatory to the Genocide Convention, to date Russia has refused to abide by the ICJ’s Order for provisional measures. Consequently, the litany of genocidal acts attributed to Russia and her forces in Ukraine grows daily. Notwithstanding, similar language for provisional measures may well be used by the ICJ in South Africa v. Israel.
Ireland and Others Wait Before Committing to ICJ Intervention
Tánaiste Micheál Martin outlined Ireland’s position on its consideration of South Africa v. Israel, “Because the court is going to make a provisional judgment on that to respond to what South Africa has sought, which is exactly what we have sought, the same thing: an immediate cessation of hostilities and war, unimpeded access of humanitarian aid into Gaza”. This week Martin, who also serves as Minister for Foreign Affairs, outlined the Government’s plan to consider its position on the case and treat it in the same considered manner as it did in Ukraine v. Russia Federation in which Ukraine accused Russia of violating the Genocide Convention. According to Martin, Ireland took approximately 12-weeks before it joined Ukraine’s case against Russia before exercising its right of intervention under Article 63 of the Statute Ireland submitted its Observations to the ICJ on 5 July 2023.
Ever the pragmatist, Martin has plead for the world community to join together to stop the bloodshed and destruction of Gaza, “Because these are legal conventions, it will take years to resolve, meanwhile, we have to keep our focus on getting a ceasefire.” A ceasefire has been the illusive goal of the international community, although generally opposed by some in the West, for more than 3-months. Israel maintains that a cessation of the fighting would only aid Hamas and allow them to consolidate their position by giving them time to reorganize. Humanitarians observe the conditions have become so appalling in Gaza that a ceasefire is the only way to ensure the safety of UN and other humanitarian workers needed to provide immediate relief to stem the tide of inordinate suffering. Palestinians only want the bloodshed to stop.
South Africa’s accusation of genocide is hardly surprising given the geo-politics involved and the abject horrors inflicted upon the Palestinian people. The case has not progressed to the point of countries joining the action by “Intervention” but it has not kept States from staking their positions publicly. Proponents of South Africa’s allegations include Brazil, Bolivia, Colombia, Jordan, Malaysia, Maldives, Namibia, Pakistan and Turkey have already publicly signaled their support for South Africa’s application. Additionally, the Organization of Islamic Cooperation, a Saudi-based cooperative body including of 57 member states (48 of which are Muslim-majority countries) have also publicly declared their support for the allegations. While yet failing to commit, China, Iran, Russia, Syria and their voting bloc have all voiced their condemnation over the scale of devastation caused by Israel’s War on Hamas.
As for Israel’s supporters? They may not be labelled “supporters” as much as those who voice concern and disdain for South Africa’s resort to the ICJ and the precedents that might be established by a finding of Genocide. That list is, as one might imagine, includes Germany, Great Britain, the United States and others. During a recent White House briefing US national security spokesperson John Kirby condemned the South Africa’s allegations as “meritless, counterproductive, and completely without any basis”. Great Britain has come under round criticism for their perceived double-standards when it comes to protecting Israel. In Gambia v. Myanmar Great Britain filed a 21-page Intervention and yet has voiced its opposition to strikingly similarly formed allegations in South Africa v. Israel.
Other Western States have not been so uniform in articulating their usual support for Israel. In a post to ‘X’ (formerly Twitter), Petra De Sutter, Belgium’s Deputy Prime Minister, proclaimed her plan to urge Belgium to support South Africa’s allegations before the ICJ, “Belgium cannot stand by and watch the immense human suffering in Gaza. We must act against the threat of genocide. I want Belgium to take action at the International Court of Justice, following the lead of South Africa”. Belgium has often been accused of committing Genocide in what was then called the ‘Belgian Congo’. In 2020, in a communication marking the 60th Anniversary of Congolese independence, King Philippe wrote to Congolese President Félix Tshisekedi, expressing his “deepest regret [for] acts of violence and cruelty…” committed during the Belgian colonial occupation of Congo.
Does What South Africa Has Alleged Constitute Genocide?
The Genocide convention delineates between the staggering death tolls and devastation that too often attend armed conflict and acts of Genocide which require proof of intent. Referencing the legal arguments in South Africa v. Israel (See Transcript of South Africa’s Oral Argument Here) and Israel (See Transcript of Israel’s Oral Arguments Here), the Court’s failure to find any State having responsibility for Genocide before, and the lack of evidence of overt intent by which the Government of Israel decided on a policy of destroying Palestinians in part, or whole as members of a national, ethnic, racial or religious group because of their membership in this group, i.e. being Palestinians, it would be extraordinary for the Court to make a finding of Genocide. Still, the war rages on an new offenses are alleged and proofs of offenses emerge daily.
The accusation of Genocide is mislaid despite the horrendous price being paid by Palestinian civilians in Gaza. Genocide requires specific intent and despite superlative arguments made by South Africa, replete with a litany of depredations inflicted by Israeli forces upon Palestinians, there does not at this time appear to be sufficient evidence of intent as required for a finding of Genocide. Given Israel’s stated commitment not to be deterred from its current path that may change.
If we have a hope of being governed by the rule of law the allegation of Genocide must be kept above the fray of politics and geopolitical alignment. When supporters of South Africa are predominantly are aligned with Russia, China, Iran and other regimes who are often themselves accused of war crimes, if not genocide by the West; and, defenders of Israel are largely those in the West with a tradition of a noblesse oblige policy towards Israel without ever holding it to account for the mass and indiscriminate incarcerations, civilian deaths, repressive military conduct and martial occupation of Palestinian territories it is clear that what is at stake in The Hague is as much political as it is legal. It is incumbent upon the world community to safeguard the Genocide Convention from becoming a political tool wielded to shame opponents instead of a legal finding so terrible that it actually deters further killing and prevents future genocides. The Palestinian people deserve the focus to be on the cessation of their daily destruction and perpetual protection grounded in the rule of law and our very humanity rather than be a cog in the machinery of caustic international relations. The truth is that when States hold up the mirror to themselves, be it Iran or the United States, Israel or Palestine, Russia or the United Kingdom when it comes to human rights there is no “fairest of them all” to be found in their reflections. All can be judged and found wanting. It would be hypocritical to say otherwise.
South Africa’s Legal Gambit Not in Vain
If it emerges that South Africa fails to eventually achieve a ruling that Israel has committed Genocide it still may achieve something by its appeal for provisional measures to protect the Palestinian people. Moreover, South Africa has served to marshal public opinion from the Arab Street to Main Street with a resolve that the future of the Palestinian people must be one of self-determination, self-governance and the ability to leave in peace and security in their homeland – in a name, sovereign. This much is implicit for the State of Israel, despite the reality of peace and security reigning in the region over the past century. Whatever happens in The Hague it is now incumbent upon the world community to move Israel to bring about the conditions in which a 2-State Solution is possible, plausible and durable.
Palestinian Sovereignty is a Moral, Ethical and Legal Necessity
Notwithstanding Netanyahu’s daily claims that there is “no future for Palestinians to achieve sovereignty” it must become so. If we grant that Israel deserves to be both sovereign and secure then Palestinians deserve no less. Israeli security cannot be preconditioned on the idea that the Palestinian people must be reduced to a sub-human race devoid of the right of self-determination, basic security and the dignity inherent in the human person. Palestinians deserve peace as much as Israelis and neither can be achieved without assuring it for the other. Repeating the vicious cycle of violence and retribution that has marked the region for too long it is undeniable that it is in Israel’s best interest, as much as it is the Palestinians and the region’s, for the Palestinian people to be empowered to self-realisation by the only realistic measure available – sovereignty through a 2-State solution and constructing a durable peace with Israel free of Hamas control which has been detrimental to the Palestinian people by its essence.
South Africa’s resort to the ICJ highlights that the atrocities that attend warfare are all too common. One might imagine substituting Palestinians with Bosniaks, Rohingya, Rwandans, Ukrainians and others to underscore the importance of the world community finally coming to grips with reality. Palestinians have endured enough of having to live with arbitrary detention, targeting civilians and even journalists, allowing settler encroachment, a sustained occupation and worse, all done in the name of Israel’s ‘self-defense’.
Does the World Have the Will to Finally Address the Plight of the Palestinian People?
Outrage in the international community is notoriously limited in duration. The very full-scale invasion of Ukraine by Russia in which Moscow turned places like Bucha, Irpin and Kherson into chambers of horror where rape, torture and murder was rampant caused outrage and near universal support and commitment to Ukraine only two short years ago. Today, the continued savagery of Russia’s never-ending assault upon Ukrainian civilians has slipped from ‘above the fold‘ and now struggles to find mention in the media after having been eclipsed by the brutality being inflicted upon the Palestinian people. The same happened in Georgia, Moldova, Syria, Yemen and elsewhere – the world has proven itself too prone to expressing fleeting outrage, failing to sustain its commitment to bring about change and substituting moral outrage for actually solving problems.
And here Irish barrister Blinne Ní Ghráilaigh’s poignant argument on behalf of South Africa at the ICJ two weeks ago that the advent of smart phones and proliferation of social media means the sheer brutality of war is frequently live-streamed, often by the very victims themselves claiming represents, “The first Genocide in history where its victims are broadcasting their own destruction in real time,” rings hollow. Videos and social media posts from Ukraine document in startling similarity the abject viciousness of Russia’s attacks on women, children, the elderly and vulnerable people in their homes. The same was true in Syria.
Would it not have been more honest for Ní Ghráilaigh to simply state that the Palestinians are being forced to document their own demise the same as have the Ukrainians and Syrians? It would. And yet, South Africa’s alignment with the dictatorships of Putin and al Assad means such an admission would not fit in to their political argument that Israel is uniquely genocidal and the Palestinians are singularly special in their quest for justice. The core truth of Ní Ghráilaigh’s argument is indelible and undeniable and yet it is wholly dishonest and hypocritical because is masks the political nature of South Africa’s argument by refusing to admit that their allies in Russia and Syria have committed the very same acts and their victims were forced to document their own demise in real time.
To be certain, the images of horrible death and destruction from Aleppo, Haas and Ma’arrat al-Nu’man were as much documented by the Syrian people opposed to the dictatorship of al Assad and his Russian mercenaries as were photographs and videos from Avdiivka, Bakhmut and Muriopol which recorded for posterity Russia’s un-restrained and inhumane warfare launched against Ukrainian civilians and critical infrastructure. The reality is the failure of international community to eliminate such wanton wickedness from conflicts in which supposed “justified” and “acceptable but regrettable” levels of death and destruction have become indistinguishable from “genocidal acts” has become commonplace and as long as it is genocide will remain a political tool for bashing one’s enemies rather than a legal tool to end this all to frequent human malady. The alacrity by which aligned States on each side of this case implore the world to take notice of their opponent’s evil deeds while ignoring their own compels one to recall the insight of 18th century statesman Benjamin Franklin mused, “Revolution is always lawful in the first person – such as in ‘Our Revolution’. It is only in the second person – such as ‘Their Revolution’ that it becomes repugnant to the principles of freedom and justice”.
The still and moving images that capture the egregious bloodshed being inflicted upon the Palestinian people by Israel’s pursuit of Hamas have captivated the world – for the moment – as did the same in Syria, Ukraine, Myanmar, Yemen and elsewhere. The question remains as to humanity’s collective willingness to stop shifting our moral outrage to the latest depictions of the horror’s of war as a way of deflecting from our perpetual refusal to actually address the underlying problems that drive conflicts.
In the meanwhile, Palestinians are dying in terrifying numbers, neither Israelis or Palestinians are experiencing security or peace and the world community seems complacent to use accusations of genocide for political gain. A cessation of fighting must be imposed now.