International law experts have cautioned against the potential for politics to come into play when the International Court of Justice (ICJ’s) decides on South Africa’s case accusing Israel of "genocidal acts" in Gaza, to be heard on Thursday and Friday.
The evidence to prove genocidal intent was “overwhelming” with international and social media having opened the door to the translation of speeches by Israeli leaders expressing its intent towards the Palestinian people, said Unisa lecturer in the department of Jurisprudence, Matelwe Sebei.
“Proving genocide requires proving that they are engaging in ethnic cleansing, sometimes even from the intent alone that could qualify as a genocide.
The most difficult part of proving genocide is the intent, a very big part of the case will be able to demonstrate the intent.
“The destruction of a nation, a religious group or even a part of it. In this case, Gaza is being targeted precisely because it is part of the Palestinian population, to facilitate a settlement of Jewish people as part of greater Israel.
“(However) law is one thing. Politics is another. The composition of the court, 15 judges each representing members of the security council, the US, China, Russia, Britain and France.
“The US is not going to vote for a verdict that Israel is committing genocide, neither is Britain.
“France you could say is somewhere in between. The problem with China and Russia, do they want to score points against Western imperialism or do they want to open Pandora's box on the issue?”
While the Israelis have dismissed the claims as "blood libel", in its application, South Africa requests the court protect the Palestinian people in Gaza by calling on Israel to “immediately halt all military attacks that constitute or give rise to violations of the Genocide Convention”.
“To that end, the Court should order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives,” the application states.
South Africa cites repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence expressing “genocidal intent”.
“That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine.
“It is also clear from the nature, scope and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed.
Israel has now killed in excess of 21110 named Palestinians, including over 7 729 children — with over 7 780 others missing, presumed dead under the rubble — and has injured over 55 243 other Palestinians, causing them severe bodily and mental harm,” court papers read.
Wits international relations professor John Stremlau said: “South Africa is showing it can lead a moral debate for the world. Most Palestinians don’t have food, water, energy – it walks and talks like genocide, South Africa has a strong position but with the politics of the court and nations they represent, God only knows how it is going to play out,” he said.
South Africa wants the ICJ to impose “provisional measures”, or emergency actions, while the broader case is being considered – which would probably take years. The ICJ is not known for its speed but “provisional measures” take priority over all other cases and a decision can be relatively quick – a matter of weeks.
“At the provisional measures stage, the court would not be making a determination that a genocide is unfolding in Gaza,” explained Leiden University assistant professor of public international law, Cecily Rose.
“Instead, the court would only be evaluating whether there is a risk of irreparable prejudice to rights held under the Genocide Convention, in particular the right of the Palestinians in Gaza to be protected from acts that threaten their existence as a group.”
Johann Soufi, a lawyer and international justice expert, said there would be an “extremely significant symbolic impact” if the court ruled against Israel.
“Of course, there is the problem of implementing the decision. But at the end of the day, international justice is all that is left,” said Soufi, who worked for the UN agency for Palestinian refugees in Gaza.
Celine Bardet, an international law and war crimes expert, believed that any decision would be at a “symbolic level”.
“It would remind the world that states are also accountable, and that’s important. It could also allow states to take actions on the back of the decision – by imposing sanctions, for example.”
* Additional reporting by AFP