It is worthy of note that like the International Court of Justice, the ICC remains a fair, independent judicial body that respects the highest standards of justice.
by Ruwantissa Abeyratne
Justice will not be served until those who are unaffected are as outraged as those who are.” ~ Benjamin Franklin
A Disclaimer
The title of this article is sub judice before the International Court of Justice and therefore it is not the intention of the author to pronounce judgment or give an opinion for and on behalf of either the applicant or the respondent. Rather, this article will discuss some general issues on Genocide, leaving the reader to draw his/her own conclusions.
The Case
On Thursday, January 11 2024 , South Africa put forth its arguments before the International Court of Justice (ICJ) following its late December filing of a case against Israel. The case alleges Israel’s engagement in “genocidal acts” against Palestinians in Gaza. Solcyre Burga, in an article in TIME published on January 11, 2024 writes that according to South African Justice Minister Ronald Lamola, the violence and devastation in Palestine and Israel did not commence on the 7th of October 2023. He had emphasized that Palestinians have endured systematic oppression and violence for the past 76 years. Lamola argued that no armed attack on a state’s territory, regardless of its severity or involvement in atrocity crimes, can justify or defend breaches of the Genocide Convention of 1948. Lawyers representing South Africa presented evidence, citing the extensive destruction in Gaza, the bombing of homes, and attacks on civilians.
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| Israeli legal counselor Tal Becker, lawyer Malcolm Shaw, and Deputy Attorney-General for International Affairs Gilad Noam attend a hearing against Israel at the International Court of Justice in The Hague on Jan. 11. |
Since the Hamas attack on Israel on October 7, more than 22,000 Palestinians have lost their lives, with 1,200 people killed and around 200 others kidnapped. The Gaza Strip has been grappling with resource shortages, including airstrikes affecting hospitals and churches, and limited international aid entering the enclave.
In an article published in Al Jazeera Israel’s response was subsumed as categorizing the South African application as distorted and baseless. According to the article Tal Becker, the legal adviser of the Israeli Ministry of Foreign Affairs, argued that South Africa had “ignored” the events of October 7 and emphasized Israel’s right to self-defense. Becker also urged the court to apply provisional measures against South Africa, accusing it of maintaining close ties with Hamas.
Following Becker, Malcolm Shaw, a British professor of international law, contested South Africa’s claim of a “dispute” between the two countries, instead labeling it a “unispute.” Galit Raguan, acting director of the international justice division at Israel’s Justice Ministry, blamed Hamas for the high civilian toll in Gaza and denied allegations of Israel bombing hospitals.
Christopher Staker, an international lawyer with previous experience on the criminal tribunal for the former Yugoslavia, asserted that Israel had facilitated humanitarian aid. Israel’s deputy attorney general for international affairs, Gilad Noam, presented the final arguments, opposing the use of provisional measures. Noam listed several reasons, including considering Hamas a terrorist organization and its involvement in a “large-scale terrorist attack.”
It must be mentioned that the court’s role is not to determine whether Israel is committing genocide. Instead, it will evaluate the strength of South Africa’s case to decide whether provisional measures should be implemented. These measures aim to “protect against further, severe, and irreparable harm” to Palestinians and ensure Israel’s compliance with its obligations under the Genocide Convention of 1948—specifically, the prevention and punishment of genocide.
What is Genocide?
Erin Blakemore, in an article published in the National Geographic on 23 April 2023 states that term “Genocide” has its origins in the 1940s and was coined by Raphael Lemkin, a Polish Jew working as a jurist in the emerging field of international law. Douglas Irvin-Erickson, Lemkin’s biographer, highlights Lemkin’s belief that the “existing laws of war were insufficient to address the evolving forms of political violence affecting the world.”
In 1933, a mere 10 months after Adolf Hitler assumed the role of Germany’s chancellor and initiated repressive laws against German Jews, Lemkin made his initial endeavor to formulate new laws of war. He approached the League of Nations, an international organization established for global peacekeeping, proposing the prohibition of what he termed “barbarity” and “vandalism.” Regrettably, the proposal did not succeed, and as Hitler’s influence expanded to the seizure of Poland by Nazi Germany, Lemkin fled the country.
Subsequently, Lemkin found refuge in the United States, where he authored a 1944 book titled “Axis Rule in Occupied Europe.” In this publication, he introduced a novel term: genocide. Coined in 1942, Lemkin combined the Greek word “genos” (meaning tribe or race) with the Latin term “cide” (signifying to kill). Despite existing cultural expressions like the German term “Völkermord,” which conveys the intentional killing of a race or people, Lemkin aimed to create a freshly coined term with no specific cultural associations.
Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948 ( also called the Genocide Convention) by UN General Assembly resolution 260 A (III) and which entered into force on 12 January 1951 provides in Article 1 that The Contracting Parties affirm that genocide, whether occurring in peacetime or during war, constitutes a criminal offense under international law, and they commit to both preventing and penalizing such acts. Article II provides that in the Convention, genocide is defined as “any of the subsequent acts carried out with the intent to wholly or partially destroy a national, ethnic, racial, or religious group. They are : killing members of the group; inflicting severe physical or mental harm upon members of the group; purposefully imposing living conditions on the group calculated to result in its complete or partial physical destruction; implementing measures with the intention of preventing births within the group; coercively transferring children of the group to another group. Article III categorizes offences punishable under the Genocide Convention as : genocide; conspiring to commit genocide; openly and publicly inciting the commission of genocide; attempting to commit genocide; being an accomplice to genocide.
As of 2022 The Convention had 152 state parties.
Conclusion
One might well ask why this case is not being heard by the International Criminal Court where the then Secretary General of the United Nations Kofi Annan observed at the establishment of the Court: “In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”
He went on to say “”For nearly half a century — almost as long as the United Nations has been in existence — the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time — this decade even — has shown us that man’s capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response.”
The ICC distinguishes itself from the International Court of Justice (ICJ) in that the ICC can prosecute individuals and prescribe and impose punitive measures against those found guilty whereas the ICJ can only hand down decisions and opinions without the power to ensure reparation or punishment. Another difference between the two courts is that the ICC prosecutes individuals whereas the ICJ hears disputes between States.
It is worthy of note that like the International Court of Justice, the ICC remains a fair, independent judicial body that respects the highest standards of justice. It is not a body of the United Nations which the ICJ is.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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