Scandalous attacks on South Africa and the International Court of Justice
With links to videos of ICJ hearings on January 11 and 12, 2024
Note to Readers
On January 10, an earlier draft of an article on Claudine Gay and plagiarism was sent out by mistake. An updated and revised article, following her resignation, will be distributed soon.
However, the big news of the day is the case South Africa has brought against Israel for genocide before the International Court of Justice, and the public hearings the Court held on January 11 (South Africa) and January 12 (Israel). This is the subject of the article published today.
Scandalous attacks on South Africa and the International Court of Justice
On December 29, 2023, South Africa brought a complaint against Israel for alleged genocide before the International Court of Justice,1 in accordance with the terms of the 1948 Genocide Convention,2 to which South Africa, Israel, the United States, Germany and a total of 153 countries are parties.
The international crime of genocide and corresponding provisions under the Convention have become norms of peremptory international law (jus cogens). Norms of jus cogens are binding on all states, and may not be derogated from not even by agreement.
South Africa’s case against Israel for genocide in Gaza was heard by the International Court of Justice (”World Court”) on Thursday, January 113 and Israel’ s defense against South Africa’s allegations was heard on Friday, January 12, 2024.4
Even before the the revelation by AXIOS on January 5 that Israel was asking its ambassadors to press their host countries to denounce the proceedings, the U.S. issued the following statement:
“We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever,” the White House National Security Council spokesperson John Kirby said on Wednesday.
AXIOS reported on January 55 that
The Israeli Foreign Ministry is instructing its embassies to press diplomats and politicians in their host countries to issue statements against South Africa’s case at the International Court of Justice that accuses Israel of committing genocide in Gaza, according to a copy of an urgent cable obtained by Axios.
…
Behind the scenes: The Israeli Foreign Ministry cable states that Israel’s “strategic goal” is for the court to reject the request for an injunction, refrain from determining that Israel is committing genocide in Gaza, and recognize that the Israeli military is operating in the Strip according to international law.“A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications,” reads the cable, a copy of which was obtained by Axios from three different Israeli officials.
The Israeli Foreign Ministry declined to comment.
“We ask for an immediate and unequivocal public statement along the following lines: To publicly and clearly state that YOUR COUNTRY rejects the outragest, absurd and baseless allegations made against Israel,” the cable also says (emphasis added).
The cable suggests, as confirmed by other Israeli statements, that Israel’s strategy is to politicize the case, attacking the Court, so that when the Court issues an Order of Provisional Measures sometime in the next few weeks, it will be dismissed out of hand by other countries.
According to an old lawyer’s maxim, “When the law is not on your side, argue the facts. When the facts are against you, argue the law. When the law and the facts are both against you, scream and shout.”
Israel has obviously decided to scream and shout.
What is utterly regrettable, and utterly shameful, is John Kirby’s political statement that
We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.
This is a political statement, not the measured judgment of a responsible government which respects international law and the International Court of Justice. The World Court, it will be recalled, was originally established in 1919 under the League of Nations and reauthorized in 1945 under the United Nations Charter. The United States took the lead in both cases.
The timing and wording of Kirby’s statement make it clear that it does not reflect the judgment of the Office of the Legal Adviser to the State Department. which is the authoritative voice of the U.S. government on all questions of international law.
News reports suggest that Israel has successfully pressured German Chancellor Olaf Scholz to direct that Germany file a brief in the ICJ supporting Israel’s position in the case.
Germany and German foreign minister Annalena Baerbock (Green Party) have been strong supporters of international law in the past. It is surprising, therefore, that Foreign Minister Baerbock would go along with Chancellor Olaf Sholz’ s directive. One would have thought that this policy would have been a matter of such grave concern that either Baerbock would have resigned or the Green Party would have withdrawn from the so-called Traffic Light Coalition. The Ampelkoalition, so called because of the colors of the parties, is comprised of Scholz’s SDP or Social Democratic Party (red), the Green Party (green), and the Free Democratic Party (yellow).
Significantly, the German Constitution or Basic Law provides in Article 25 the following:
Article 25
[Primacy of international law]The general rules of international law shall be an integral part of federal law. They shall take precedence over other laws and directly create rights and duties for the inhabitants of the federal territory.6
The Convention on Genocide represents peremptory norms of international law (jus cogens). They appear to form part of “the general rules of international law” under Article 25 of the German Constitution, and therefore would seem to “take precedence over (other) laws”.
The 1948 Genocide Convention to which Germany, the U.S., South Africa and Israel are parties contains in Article IX a commitment to submit disputes under the Convention to the International Court of Justice for decision. By ratifying the Convention, Israel has agreed to submit all such disputes to the ICJ.
Article IX of the Genocide Convention provides:
Article IX
Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Moreover, under Article 94 paragraph 1 of the U.N. Charter, the decisions of the ICJ are binding on all members of the United Nations.7
As the ICJ has recently reaffirmed in the case of Armenia v. Azerbaijan (Interim Order of February 22, 2023), orders indicating provisional measures of protection under Article 41 of the Statute of the ICJ are legally binding on the parties.
The expected forthcoming Order of Provisional Measures in the genocide case brought by South Africa against Israel will therefore be legally binding on both countries. Failure to comply by either country will constitute a violation of Article 94 paragraph 1 of the Charter, and under Article 94 paragraph 2 could subject the con-compliant party to potential measures adopted by the U.N. Security Council, provided of course that it is able to reach a decision.
After three months of an Israeli siege of the Gaza Strip and some 23,000 Palestinians reportedly killed, what is truly scandalous and deeply shameful is that John Kirby would characterize South Africa’s complaint against Israel for genocide to be “meritless, counterproductive, and completely without any basis in fact whatsoever.”
The quoted words would seem to apply to Kirby’s statement, not to the legal action brought by South Africa.
What is sad is that the U.S., and now apparently Germany and other countries, bowing to political and diplomatic pressures, have denounced the case and the Court.
Critics of Israeli actions in Gaza have been subjected to at times ferocious attacks by Israel and Israel’s supporters. Nonetheless, Peter Beinart, a leading Jewish journalist in the United States, has asserted the following:8
There is a concept in Judaism called “Chillul Hashem.” It’s one of the greatest sins that a human being can commit. And it is to do something that would bring God’s name itself into disrepute. It seems to me that forcing Palestinians in Gaza into a situation where their choices are either death or expulsion is Chillul Hashem, a sin (which) actually, in Jewish law, cannot be atoned for.
In a more historical vein, it strikes me as a profound and deeply disturbing irony that a people whose own history has been marked by mass expulsion now has a state that is speaking in our name and enacting policies that are very likely going to create mass expulsion of other people.
It will now be up to the International Court of Justice to decide, first, whether to issue an Order of Provisional Measures in order to to ensure that the situation which Beinart describes or fears does not persist or come to pass.
Second, over the next several years, the ICJ will receive evidence and hear arguments regarding the charges of genocide made by South Africa, and reach decisions on the allegations in the complaint.
Significantly, regardless of whether the Court finds Israel guilty of genocide, it will necessarily consider issues of fundamental importance raised by South Africa. For example, South Africa has presented a cogent argument that the Gaza Strip is Occupied Territory controlled by Israel (e.g., land, sea, and air access, telecommunications, energy, water), and that therefore the right of self-defense against an armed attack by another state guaranteed by Article 51 of the U.N. Charter does not apply.
The whole issue of the proportionality of Israel’s response to Hamas’ attacks on October 7, 2023, and its continuing rocket attacks since then, South Africa argues, is not governed by the international law of self-defense and Article 51 of the Charter, but rather by other law, presumably by International Humanitarian Law as it applies to occupied territories.
While these issues may be of interest only to international lawyers at the present time, they are likely to assume increasing importance as evidence is introduced in the Court, in public proceedings, and as the Court approaches reaching its Judgment on the Merits.
The bottom line is this:
South Africa has every right under the Genocide Convention to bring a case against Israel for alleged commission of genocide, as that international crime is defined in the Convention.
If we support the international adjudication of disputes, i.e., decisions made on the basis of international law and impartial determination of the facts, no country should attack another country for bringing a case before the ICJ.
The ICJ should be left to do its work, which involves resolving difficult legal and factual issues and reaching decisions whose influence will reach far beyond the current dispute.
It is absurd for countries to come out publicly for one side or the other in the case. That is the job of the judges on the Court.
If countries have strong views on the legal issues, they should make their arguments in briefs to the Court. If they have factual evidence that will assist the Court in reaching a decision, they should present that evidence to the Court.
This is not a Security Council or a General Assembly vote. It is a judicial proceeding. All countries should refrain from using political and diplomatic pressures to influence other countries to take a position on the case.
It is a judicial not a political process that has been engaged.
Instead of making scandalous statements like that of John Kirby on behalf of the United States, countries should shut up and allow the Court to do its work.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
South Africa, “Application instituting proceedings and request for the indication of provisional measures (South Africa v. Israel), December 29, 2023.
See also Patrick Wintour, “Stakes high as South Africa brings claim of genocidal intent against Israel; Israel’s decision to defend itself at the international court of justice will make it harder for it to brush aside any adverse finding,” The Guardian, January 4, 2024.
“Convention on the Prevention and Punishment of the Crime of Genocide,” Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948. Entry into force: 12 January 1951, in accordance with article XII.
“ THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case South Africa v. Israel - Oral argument of South Africa, January 11, 2024,” UN Web TV, January 11, 2024.
"THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case South Africa v. Israel - Oral argument of Israel, January 12, 2024,” UN Web TV, January 12, 2024.
Barak Ravid, “Inside Israel’s plan to quash South Africa’s Gaza genocide case,” AXIOS, January 5, 2024.
The German text of Article 25 reads as follows:
Die allgemeinen Regeln des Völkerrechtes sind Bestandteil des Bundesrechtes. Sie gehen den Gesetzen vor und erzeugen Rechte und Pflichten unmittelbar für die Bewohner des Bundesgebietes.
Article 94 of the U.N. Charter establishes:
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Peter Beinart, “The hard truth if Israel’s endgame in Gaza; Peter Beinart warns that the country is “commiting a sin that ‘cannot be atoned for’,” New York Times, January 9, 2024 (podcast).
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