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  • Writer's pictureIrungu Houghton

International justice system on trial as South Africa takes Israel to ICJ

With Gaza rapidly transformed from the world’s biggest open-air prison to a giant graveyard before the world’s eyes, thousands of street protests and several blocked United Nations decisions, international legal action was predictable. What is the significance of the South Africa petition before the International Court of Justice (ICJ)? More importantly, can it bring the atrocities to an end?


Genocide is defined as “the intent to destroy, in whole or in part, a protected group” such as a national, ethnical, religious or a racial group. Under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, all states are legally obligated to prevent genocide whether parties to the Convention or not. Under the Convention, no person, including senior government officials, can claim personal immunity for their actions.


Given the prominence of the International Criminal Court in Kenya’s recent history, it is worth pointing out that while both courts are based in the Hague, the ICJ hears only allegations against states for international human rights violations. The ICC can convict and sentence individual actors for genocide and crimes against humanity. The ICJ has heard cases against Yugoslavia, Myanmar, and Russia more recently.


Thursday’s South African Government application charges the Israeli state with four counts of genocide. They include mass civilian killings, mental and physical harm, mass displacement and the destruction of the health system. The 84-page submission details genocidal intent, acts of genocide and calls for an immediate end to the military attacks, displacement, and denial of access to food, water, and humanitarian assistance. It demands that all persons who have planned, incited, or committed genocide come before a national or international tribune. Lastly, it demands reparations for victims.


Led by Prof. John Dugard, the South African legal team outlined Israel’s apartheid policies in the occupied Palestinian territories prior to the 7 October Hamas attack. They described the mass arrests, detentions without trial, torture and forced evictions and seizure of Palestinian homes by Israeli settlers. Then after 7 October, the daily dropping of 900kg bombs of densely populated areas and areas and passages declared “safe”, the wiping out of entire families with more than 1,000 children now without one or both legs and the destruction of 355,000 Palestinian homes.


The Israel Government defended itself yesterday. They assert the petition is biased in favour of Hamas, seeks to delegitimate the Israel State, and airbrushes out decades of attacks. Israeli lawyers argue the killing of 1,200 Israeli civilians and taking of 240 hostages (110 now free) on 7 October, was itself, an act of genocide within a long history of Hamas violence. Importantly, Israel also acknowledged its obligations under UN conventions and international humanitarian law. We would hopefully conclude from this, that they will abide by the determination of the Court.


The legal, diplomatic and peace stakes are high. The South African petition is historic, popular at home and endorsed by thirteen states from Asia, Africa, Middle East, and Latin America. The case is a historic test case for the international justice system. The US Government has publicly disagreed however, calling the suit a “distraction” from its own diplomatic efforts.


Protestors against the war on Palestine have declared today as another day of global action. In the last three months, Israeli Defence Forces have bombed, bulldozed, starved, or shot over 23,000 human beings in Gaza. Northern Gaza is all but destroyed and 80 per cent of the population is homeless. One child has died every 15 minutes since 7 October and over the last two days it has taken South Africa and Israel to present their arguments, 500 people will have died.


With no sign of the state violence abating, the ICJ’s interim decision will be eagerly awaited by millions towards the last week of January. Swift ICJ preliminary declaratory orders may reassure those rapidly losing confidence in the UN Security Council and International Criminal Court that the international justice system has the courage and capacity to globally protect civilians.


This opinion was also published in the Saturday Standard, 13 January 2023.


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