Gennaio 14 2024
Israel on trial: the charge of genocide of the Palestinian people.

The International Court of Justice has been asked to consider whether Israel is committing genocide against Palestinians in Gaza.

Hague, International Court of Justice. The trial against Israel on charges of genocide of the Palestinian people began Thursday, Jan. 11, just over three months after the start of the war in the Middle East. 

South Africa brought the Jewish state before the highest court of the United Nations, alleging that the plan to “destroy” Gaza came from the “highest level” of Israeli state apparatuses. “Israel’s genocidal intent is evident from the manner in which this military attack is being conducted,” said Tembeka Ngcukaitobi, a lawyer for South Africa’s High Court, adding, “Nothing will stop the suffering except an order from this court.”

The state of South Africa has asked The Hague to order a cease-fire of military operations that have claimed the lives of more than 23,000 Palestinians since Oct. 7, according to Gaza’s Ministry of Health.

Critical the Jewish state’s response: “Today we saw a world upside down. Israel is accused of genocide while it is fighting against genocide,” said Prime Minister Benjamin Netanyahu. The interest of South Africa, a non-Muslim or Arab-majority state, however, appears “Purely as humanitarian, thus making it difficult for Israel to dismiss the genocide accusations as unbiased,” explains Andrew Wolman, senior lecturer in international criminal law at City, University of London, who adds, “South Africa’s act is noteworthy. Its history illustrates Netanyahu’s worst fears, those that a government, after decades of oppressive control of a territory, might bow to international and domestic pressures and surrender its power.”

The African country’s goal is for the genocide charge to be upheld by the International Criminal Court because for Israel, a signatory state to the U.N. Charter, which would entail a legal constraint under Article 94 of the Statute. “Once a sentence is handed down if it is not complied with, the U.N. Security Council has the authority to take measures against the country that does not comply,” Professor Wolman explains. “In this case, however, even if the Tribunal issues a ruling against Israel, the United States and the United Kingdom could veto any Security Council action, rendering sanctions useless.”

What will determine the outcome of the trial will be the Court’s decision on whether or not we are facing genocide of the Palestinian people. The ruling will be approved if the legal definition of “genocide” is found applicable to the specific case of the more than 23,000 victims in the Gaza Strip. “Legal scholars are divided on whether a genocide of the Palestinian people is currently taking place. In fact, the crime of genocide has an extremely narrow definition: the intent of Israel to destroy a national, ethnic, racial or religious group, in whole or in part, must be proven,” Wolman explains. 

The Jewish state, one of the signatory to the 1948 Genocide Convention, is obligated under international law to prevent and punish the crime with which it is now charged.

Determining the crime of genocide or not by The Hague may take a long time, even years. “The focus now is on interim measures, the (unlikely) one of suspending military operations in Gaza or allowing access to fact-finding missions and ensuring the preservation of evidence,” comments Andrew Wolman. The perplexity that the Court could impose a truce has been going on since 2022, when the ICJ had already ruled with an order to Russia to suspend military operations in Ukraine. However, the attempt to halt the conflict had been ignored. “The Russian example tells us that the power to enforce international law is weak, at least in the face of action by a superpower. But this was already known. International law, however, effectively framed Russian action in a way that delegitimized it in the eyes of many, especially in the West,” Professor Wolman concludes.