The ruling of the International Court of Justice (ICJ) on Friday had a truly significant effect: the judgment and order represent a massive victory for the South African legal strategy and a devastating legal and more importantly, moral, defeat for Israel.
The judgment of the majority of the court negotiated some tricky legal terrain put up by the Israeli lawyers. In particular, the question of the jurisdiction of the court to hear the case, the test for granting provisional measures and the concomitant test for genocidal intent were key to the disposition of the case.
The Israeli argument regarding jurisdiction was not without some merit. As is evident from a reading of Gambia v Myanmar, the court in that case paid considerable attention to whether a dispute was properly before the court, with great reference to whether the parties had engaged properly before the referral.
However, as was evident from Friday’s judgment, the court was confronted with egregious levels of destruction and death directly linked to Israel’s military bombardment. It was not going to refuse to hear such a case on a purely technical basis. Of course, the idea that the ultra-reactionary Netanyahu government would have entered into meaningful engagement with South Africa to minimise their military campaign only has to be stated to realise how pointless such a potential exercise was.
The plausibility test has been the subject of differing criteria over the years; in particular, whether a fully blown prima facie case has been shown. In the South African case, the court examined the consequences of the war — 85% of the population of Gaza displaced, the cutting off of water and electricity by Israel, a total collapse of health facilities, a real danger of serious disease breaking out as a consequence, 15% of women giving birth in Gaza experiencing serious complications, the lifelong physical and mental scars thousands will carry as a result of incessant bombardment, to name some of the key factors, which include an estimated 25,000 deaths. Here lay the key.
The legal move the court made was to find on the basis of this set of factual findings that rights that are held by protected groups in terms of the Genocide Convention had been eroded/destroyed.
In this connection, Article 2 of the Genocide Convention is key:
“Article II: In the present Convention, 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.”
These are wide protections to even parts of national, racial or ethnic groups.
Again, there was some debate about the test at the stage of a provisional order for genocidal intent. After all, in the Akayesu case and in Croatia v Serbia, the test for genocidal intent was brought into line with established criminal law principles.
The problem for Israel’s legal defence was that at the stage of provisional measures the bar is lower.
Notwithstanding the argument that the orders given to the Israel Defense Forces emphasised the importance of adherence to international law, the clear statements which fell within the Genocide Convention by the president of Israel, Isaac Herzog, the minister of defence, Yoav Gallant, (a truly inappropriate name!) and the minister of energy, Israel Katz, were coupled with the devastating facts on the Gaza ground to justify a conclusion of genocidal intent which sufficed at this stage of the proceedings.
It was predictable that the court would not grant a ceasefire as Hamas is not a party to the convention. For this reason, it may be incorrect that the order cannot receive compliance unless there is a ceasefire in that the order does not prohibit military action so long as it is in compliance with the convention. But that will mean that Israeli military action will need to be targeted to avoid civilian casualties, itself admittedly a high bar for Israel to negotiate.
One can foresee further disputes about whether Israel has complied with this part of the order and we may yet have Season 2 before the ICJ.
What is clear is that Israel should move to charge genocide inciters and that it must do far more to ensure that humanitarian aid flows into Gaza. Even Israeli judge Aharon Barak agreed to these parts of the order.
The upshot is that South Africa emerges with great credit as a defender of international law. The hope is that this commitment will be consistently applied.
Israel emerges under a cloud of moral opprobrium, the consequence of 56 years of oppression of Palestinian rights and for the past — albeit broken — period of 27 years having been led by a man who refuses to recognise Palestinian rights and has led increasingly reactionary governments which have brought increasing shame on Israel. DM