By Diana Buttu
TORONTO, Canada, Jan 11 2024 – The Institute for Middle East Understanding (IMEU) published the following Q&A with human rights attorney and political analyst Diana Buttu on South Africa’s genocide case against Israel at the International Court of Justice ICJ). The court is scheduled to hold hearings on the petition January 11-12.

She is a former advisor to Palestinian Authority President and Palestine Liberation Organization Chairman Mahmoud Abbas.

Question: What is the International Court of Justice (ICJ) and how does it differ from the International Criminal Court (ICC)?

Diana Buttu: The International Court of Justice is part of the United Nations system and deals with legal disputes between states. The International Criminal Court, which Israel does not recognize the jurisdiction of, deals with claims against individuals. Israel signed onto the UN Genocide Convention, as did South Africa. Therefore, the ICJ has the jurisdiction to deal with the petition being brought by South Africa.

Q: Why is South Africa filing the petition before the ICJ? What is being requested?

DB: Any country that is a signatory to the Genocide Convention can file a petition to the ICJ. They do not need to be directly affected. That said, it is very powerful that South Africa, a country that lived under a racist apartheid regime, is making a claim against the apartheid regime of Israel.

Diana Buttu

South Africa is seeking an expedited hearing and is hoping that the ICJ will issue a ruling calling upon Israel to immediately halt all military attacks and allow food and other humanitarian supplies to enter Gaza. To that end, South Africa has requested that the ICJ 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.”

Q: What exactly is South Africa alleging?

DB: South Africa alleges that Israel is committing genocide against Palestinians in Gaza, where 2.3 million Palestinians, half of them children, are trapped with nowhere to escape to. Since October 7, Israel has been carrying out a massive military assault by land, air and sea, on Gaza, which is one of the most densely populated places in the world. Israel’s assault is one of the most destructive and deadly bombing campaigns in history, killing more than 1 percent of the population of Gaza up to this point. At the same time, Israel has cut off food, water, and medical supplies, as part of a deliberate attempt to starve the population.

Israel has also driven nearly the entire population out of their homes in an act of ethnic cleansing, particularly in the north of Gaza. So far, Israel has destroyed or damaged 355,000 homes (approximately 60% of all homes in Gaza); displaced 1.9 million Palestinians (85% of the total population) and has left all of Gaza without food, clean water or sanitation.

Israel’s military has also targeted hospitals and other health care facilities in Gaza as part of its ethnic cleansing campaign. According to South Africa’s petition, “Israel has bombed, shelled and besieged Gaza’s hospitals, with only 13 out of 36 hospitals partially functional, and no fully functioning hospital left in North Gaza. Contagious and epidemic diseases are rife amongst the displaced Palestinian population, with experts warning of the risk of meningitis, cholera and other outbreaks. The entire population in Gaza is at imminent risk of famine…”

According to South Africa’s petition, Israel is:

1. Engaged in the mass killing of Palestinians in Gaza, a large proportion of them women and children —who are estimated to account for around 70% of the more than 21,110 fatalities. According to reports, Israeli soldiers have also summarily executed civilians;

2. Deliberately causing starvation and dehydration amongst Palestinians in Gaza by cutting of supplies of food, water, and electricity, and the destruction of bakeries, mills, agricultural lands and other methods of food production and sustenance;

3. Causing serious mental and bodily harm to Palestinians in Gaza, including through maiming, psychological trauma, and inhuman and degrading treatment;

4. Forcibly displacing – ethnic cleansing – around 85% of Palestinians in Gaza so far — including children, the elderly, and the sick and wounded — as well as causing the large scale destruction of Palestinian homes, cities, towns, refugee camps, and entire regions in Gaza, precluding the return of a significant proportion of Palestinians to their homes;

5. Destroying Palestinian life and society in Gaza, through the destruction of Gaza’s universities, schools, cultural centers, courts, public buildings and records, libraries, churches, mosques, roads, infrastructure, utilities and other facilities necessary to the sustained life of Palestinians in Gaza as a group, alongside the killing of entire family groups — erasing entire oral histories in Gaza — and the killing of prominent and distinguished members of society;

6. Imposing measures intended to prevent Palestinian births in Gaza, through the reproductive violence inflicted on Palestinian women, newborn babies, infants, and children;

7. Failing to provide for or to ensure the provision for the medical needs of Palestinians in Gaza, including those medical needs created by other genocidal acts causing serious bodily harm, including through directly attacking hospitals, ambulances and other healthcare facilities in Gaza, killing doctors, medics and nurses, including the most qualified medics in Gaza, and destroying and disabling Gaza’s medical system; and

8. Failing to provide and restricting the provision of adequate shelter, clothes, hygiene or sanitation to Palestinians in Gaza, including the 1.9 million internally displaced people, compelled by Israel’s actions to live in dangerous situations of squalor, alongside the routine targeting and destruction of places of shelter and the killing and wounding of those seeking safety, including women, children, the disabled and the elderly.

Q: What is necessary to establish that genocide is taking place?

DB: According to the UN’s Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Based on this, two elements are required: the intent to destroy in whole or in part a national, ethnical, racial or religious group and the act of doing so. In the petition, South Africa lays out both elements by highlighting numerous statements demonstrating the intent to commit genocide on the part of senior Israeli officials, including Prime Minister Netanyahu, the President of Israel, the Minister of Defense, the National Security Minister, the Minister of Energy and Infrastructure, the Minister of Finance, the Minister of Heritage, the Minister of Agriculture and the Deputy Speaker of the Knesset. The petition also highlights the alarm bells raised by a number of UN experts warning that Palestinians are at risk of genocide. It also highlights the many acts that Israel has carried out since October 7 to meet those elements above.

Q: What will happen if the ICJ finds that Israel is committing genocide?

DB: At this stage, what is being sought is a provisional order asking that Israel cease its attacks against Palestinians in Gaza. For a provisional order, it is not necessary to prove that Israel is committing genocide; but rather that the acts complained of fall within the Genocide Convention.

That said, if after hearing the full case the court finds that Israel is committing genocide, this obligates not only Israel but also countries around the world to act to stop genocide. First, according to the ICJ, every UN member state must undertake to comply with a decision of the ICJ in any case to which it is a party. If they do not comply, the other party may go to the UN Security Council which may take measures to give effect to the judgment.

Beyond that, however, the crime of genocide does not just bind the party committing genocide but binds third party states too, whether or not they have ratified the Genocide Convention. What this means is that ALL states are bound and therefore must take measures to stop the genocide as well as measures not to aid Israel in committing genocide. This, of course, can take different forms including by imposing an arms embargo on Israel, boycotting and sanctioning Israel, and prosecuting war criminals.

For more information, contact Chris at chris@imeu.org or (202) 903-3271.

IPS UN Bureau

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By Thalif Deen
UNITED NATIONS, Jan 11 2024 – The continued devastation of Gaza by Israel has triggered widespread charges of war crimes, genocide, forced displacement, ethnic cleansing, starvation as a weapon of war and mass killings of civilians – over 22,000 at last count—compared to 1,200 killings by Hamas.

These accusations have prompted growing demands for intervention by the International Criminal Court (ICC) in The Hague, which has remained silent while its Prosecutor Karim Khan is accused of double standards and playing politics.

The New York-based Foreign Press Association (FPA), which was scheduled to host a zoom discussion later this week, said “with more than 20,000 Palestinians dead, areas of Gaza turned to rubble, ICC prosecutor Karim Khan has yet to investigate either Israel or Hamas for the deaths, on and after 7 October– despite his exemplary hair-trigger speed against (Russian President) Vladimir Putin fo war crimes committed in Ukraine”.

With South Africa’s referral of Israel to the International Court of Justice (ICJ) for genocide, and the U.S.’s continued strong support for the Netanyahu government’s military response as geopolitical context, many are looking for the International Criminal Court to take action — if only as a warning to the parties, but so far Karim Khan, the British barrister serving as ICC prosecutor, shows no sign of action, reinforcing allegations of “rich country justice,” said FPA.

Ian G Williams, author, writer, broadcaster and FPA president, told IPS Khan is approaching the prosecution with all the caution of a Sheriff in Old Alabama prosecuting a KKK lynch mob.

“With his accomplices in Washington, he has done more to substantiate the global South’s suspicions of the bias of UN justice than anyone would have dreamt,” declared Williams, a former President of the UN Correspondents Association (UNCA).

Karim Khan

Mouin Rabbani, Co-Editor, Jadaliyya, an independent ezine produced by the Arab Studies Institute, told IPS Karim has consistently demonstrated that he is unfit for the position of ICC Prosecutor.

“At a time when he should be working overtime to address the ICC’s legitimacy deficit, he has politicised the position well beyond what its credibility can bear”

Shortly after assuming his post, he reassured the Security Council he would only prioritise cases that were referred to his office by the Council, and effectively ignore others — most prominently Palestine and Afghanistan, he pointed out.

“When Russia invaded Ukraine several months later, this modus operandi went out the window and within a year he indicted the head of state of a permanent member of the Council”, Rabbani said.

“Meanwhile he treated the much older investigation into Palestine as if it did not exist.
Khan, in other words, has consistently demonstrated an addiction to pandering to the priorities of Western power”.

Since 7 October, Rabbani argued, his double standards are once again on visible display: he has repeatedly and explicitly denounced Palestinian organisations in the strongest possible terms, suggesting he has already reached conclusions about their conduct, while refusing to consider similar statement with respect to Israel and its conduct.

“Rather, he has suggested that the Israeli judiciary rather than the ICC is the appropriate venue to hold Israeli war criminals accountable — despite numerous human rights organisations and independent investigations having denounced this system as a sham. It is entirely possible that Khan will indict only Palestinians and leave Israeli suspects to be declared innocent by Israeli courts”.

His refusal to investigate “the Situation in Palestine” beyond claiming an investigation exists without offering any evidence it is actively being pursued, was in fact cited by South Africa in its ICJ submission regarding Israel’s genocide in Gaza. Tellingly, Khan has been entirely mum on this case, and indeed on other Israeli crimes, Rabbani said.

“Khan has become a central enabler of Israeli impunity. Western leaders in fact routinely demur when challenged on Israeli war crimes, claiming these are within the purview of Khan while knowing full well Khan considers them within the purview of the recess of his filing cabinet”.

The ICC will remain incapable of pursuing Israeli crimes until Khan is replaced by a prosecutor committed to conducting the job in accordance with its mandate and terms of reference, declared Rabbani.

Addressing the 193-member UN General Assembly on January 9, Riyad Mansour, Permanent Observer of the State of Palestine to the UN, said: “I stand here representing a people being slaughtered, with families killed in their entirety, men and women shot in the streets, thousands abducted, tortured and humiliated, children killed, amputated, orphaned, scarred for life. No people should endure this. This must stop. “

The whole world, he pointed out, is calling for an immediate humanitarian ceasefire, 153 states across the globe have voted for a ceasefire, the moral voices of our time have pleaded for a ceasefire, the Secretary General and the United Nations have called for a ceasefire, the humanitarian organizations have urged a ceasefire. They all know the horrors need to end and the only way to end them is a ceasefire.

“This assault is without precedent in modern history in the scale and pace of killing of children, of UN personnel, of medical and rescue teams, of journalists. This is a war of atrocities. How can you reconcile opposing these atrocities and vetoing a call to end the war that is leading to their commission?” asked Mansour.

A roundtable of experts convened by Democracy for the Arab World Now (DAWN) has concluded that the assault on Gaza by Israel, including mass killing of at least 22,000 civilians, the forced displacement of nearly 1.9 million Palestinians, deprivation of essentials like water and electricity, and denial of humanitarian access, coupled with explicit declarations of intent by Israeli officials to destroy the population of Gaza, likely amounts to genocide under the Convention on the Prevention and Punishment of the Crime of Genocide.

“Expert analysis of Israeli government statements revealing their intent to destroy Palestinians in Gaza, combined with military actions on the ground, including mass killings, forced displacement, and the deprivation of items essential to life in Gaza, suggest that the crime of genocide is being committed against the Palestinian population,” said Sarah Leah Whitson, Executive Director of DAWN.

Meanwhile, the ICC says it investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. As a court of last resort, it seeks to complement, not replace, national Courts, and is governed by an international treaty called the Rome Statute.

There are 123 member countries, but dozens of governments are not ICC parties, including China, India, Russia, and the United States.

The ICC has over 900 staff members from approximately 100 States with 6 official languages: English, French, Arabic, Chinese, Russian and Spanish. But the two working languages are English and French.

According to ICC, so far, there have been 31 cases before the Court, with some cases having more than one suspect. ICC judges have issued 40 arrest warrants: 21 people have been detained in the ICC detention centre and have appeared before the Court. 15 people remain at large. Charges have been dropped against 7 people due to their deaths.

ICC judges have also issued 9 summonses to appear. The judges have issued 10 convictions and 4 acquittals.

IPS UN Bureau Report

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By Cecilia Russell
JOHANNESBurg, Jan 11 2024 – Far from the mayhem, destruction, and humanitarian crisis in Gaza, the South African government argued in the International Court of Justice in the Hague that it had an obligation and a right to bring a case to halt a genocide by the Israeli government and its military.

The top legal team, composed of both South African and international human rights lawyers, spent over two and a half hours arguing that it had an obligation as a signatory to the Genocide Convention to bring this case and that the court had an obligation to accede to the provisional measures included in the application, which include an immediate suspension of its military operations against Gaza and the prevention of acts of genocide against Palestinian people.

Professor Vaughan Lowe KC summarized the arguments heard throughout the day succinctly, saying:

South African Justice Minister Ronald Lamola and Vusi Madonsela, Ambassador to the Netherlands, both wearing South African colors, with the legal team at the International Court of Justice in the Hague. Credit: Chrispin Phiri/SA Ministry Justice and Correctional Services

“South Africa believes that the publicly available evidence of the scale of the destruction resulting from the bombardment of Gaza and the deliberate restriction of food, water, medicines, or electricity available to the population of Gaza demonstrates that the Government of Israel, not Jewish people or Israeli citizens, the government of Israel, and its military are intent on destroying the Palestinians in Gaza as a group and are doing nothing to prevent or punish the actions of others who support that aim.

“And I repeat, the point is not simply that Israel is acting disproportionately. The point is that the prohibition on genocide is an absolute, peremptory rule of law. Nothing can ever justify genocide,” he told the court.

“This is not a moment for the court to sit back and be silent.”

The preceding arguments included the reasons the court should act—and act urgently.

Blinne Ni Ghralaigh KC argued that if the bombardment continued, there would be irreparable harm to the Palestinian people, where entire multigenerational families would be obliterated.

She referred to what she termed a “terrible new acronym” that emerged from the Israeli action.

“WCNSF—wounded child, no surviving family.”

The first of two photos shared during proceedings. A big whiteboard at a hospital in northern Gaza, one of the hospitals targeted during the siege. The whiteboard is wiped clean as it is no longer possible to do surgical cases. Credit: Cecilia Russell/IPS

The second is the same whiteboard shattered after an Israeli strike on November 21, 2023. The author of the words, Dr Mahmoud Abu Jayla, and two of his colleagues were killed in an Israeli strike. Credit: Cecilia Russell/IPS

Ghralaigh argued there was no merit in the argument of Israel that it was not responsible for the humanitarian crisis; she told the court that humanitarian workers stretching as far back as the Killing Fields of Cambodia had not seen a humanitarian crisis so utterly unprecedented that they had “not the words to describe it.”

She also accused the international community of erring in their duty to prevent genocide.

“Now, notwithstanding the genocide conventions and recognition of the need to rid the world of the odious scourge of genocide, the international community has repeatedly failed. It failed the people of Rwanda. It had failed the Bosnian people and the Rohingya, prompting this court to take action,” Ghralaigh argued, saying it failed again by ignoring the early warnings and the grave risk of genocide to the Palestinian people.

“The international community continues to fail the Palestinian people, despite the overt, dehumanizing genocidal rhetoric by Israeli government and military officials, matched by the Israeli army’s actions on the ground—despite the horror of the genocide against the Palestinian people being live streamed from Gaza to our mobile phones, computers, and television screens—the first genocide in history where its victims are broadcasting their own destruction in real time.”

Professor Max Du Plessis argued that South Africa had jurisdiction to bring this matter to court. Quoting the court’s findings in the case filed by The Gambia against Myanmar in 2019, he said: “All the States’ parties to the Genocide Convention have a common interest in ensuring that acts of genocide are prevented.”

This court action should not have come as a surprise. Professor John Dugard explained that the South African application followed a long series of diplomatic efforts to express concern about the Israeli action in Palestine.

“South Africa has a long history of close relations with Israel. For this reason, it did not bring the dispute immediately to the attention of the court. It was harder as Israel responded to the terrible atrocities committed against his people on the 7^th of October with an attack on Gaza that resulted in the indiscriminate killing of innocent Palestinian civilians, most of whom were women and children,” Dugard told the court. “The South African government repeatedly voiced its concerns in the Security Council and in public statements that Israel’s actions had become genocidal.”

Adila Hassim, an attorney, gave a detailed account of the effects of the bombardment on the civilian population when she informed the court that Israeli forces had killed 23,210 Palestinians during the continuous attacks over the previous three months, with 70% of them thought to be women and children. Some 7,000 Palestinians are still missing, presumed dead under the rubble.

“Palestinians in Gaza are subjected to relentless bombing, wherever they go. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families. They have been killed if they failed to evacuate in the places to which they have fled, and even while they attempted to flee along Israeli-declared safe routes,” Hassim said.

Showing photographs of mass graves, she told the court: “More than 1,800 Palestinian families in Gaza have lost multiple family members, and hundreds of multi-generational families have been wiped out with no remaining survivors. Mothers, fathers, children, siblings, grandparents, aunts, and cousins are often all killed together. This killing is nothing short of the destruction of Palestinian life. It is inflicted deliberately. No one is spared. Not even newborn babies.”

Advocate Tembeka Ngcukaitobi said the genocidal rhetoric was nurtured at the highest level of the state.

“There is an extraordinary feature in this case that Israel’s political leaders, military commanders, and persons holding official positions have systematically and in explicit terms declared their genocidal intent,” he said, referring to Israeli Prime Minister Benjamin Netanyahu’s public address when he declared war on Gaza, where he warned of an unprecedented price to be paid by the enemy.

On October 28, Ngcukayitobi said Netanyahu referred to the people of Gaza as the Amalekites, a biblical reference to the retaliatory destruction of a people, men and women, children and infants with their cattle and sheep, camels, and donkeys, considered the enemies of the Israelites.

The language of genocide had not stopped there, as the Palestinian people were often referred to as “human animals.”

Other high-level politicians also made comments that confirmed the country’s genocide intent.

Israel’s Energy and Infrastructure Minister, MK Israel Katz, called for the denial of water and fuel: “As this is what will happen to a people of children: kill us and slaughter us.”

Ngcukaitobi said there was no ambiguity. “It means to create conditions of death for the Palestinian people in Gaza to die a slow death because of starvation and dehydration, or to die quickly because of a bomb attack or snipers.”

South African Justice Minister Ronald Lamola told the court this was brought in the spirit of Nelson Mandela’s humanity, and the country unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups in the taking of hostages on October 7, 2023.

Vusi Madonsela, SA Ambassador to the Netherlands, read the provisional measures that the South African government requests the court consider, including responding to the application as a matter of urgency. Among others, these include:

• that military operations are immediately ceased;
• that the State of Israel take reasonable measures within its power to prevent genocide, including desisting from actions that could bring about physical destruction;
• rescind orders of restrictions and prohibitions to prevent forced displacement and ensure access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene, sanitation and medical supplies;
• avoid public incitement;
• ensure the preservation of evidence related to allegations of acts and
• submit a report to the court on all measures taken to give effect to the order.

Israel will respond on Friday, January 12, 2024.

IPS UN Bureau Report

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