General Discussion

Nanjeanne

(5,439 posts) Wed Jan 10, 2024, 04:09 PM Jan 2024

Analysis Gaza Genocide Case Against Israel: The Key Legal Questions Facing the International Court of Justice

From Haaretz:

By Ayel Gross - a member of the Faculty in Tel Aviv University's Faculty of Law where he teaches International Law and Constitutional Law.

This is a really well outlined analysis of what the ICJ will be reviewing, how the case will or will not be made, etc. I recommend reading the whole article to learn more. There is also an explanation about the difference with proving genocide and proving war crimes and the difference in the ICJ and ICC and what kinds of crimes they review and process for bringing cases before them (important as some DUers seem interested in that)

South Africa's case against Israel is not the first time the world court is being asked to rule on potential genocide. Previous decisions will give hope to both the Palestinians and Israel, but may ultimately highlight the limitations of international law

Under international law, in order to prove genocide is being committed, it is necessary to show both a physical and a mental element: one or more acts have to be done with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

The acts that can fulfill the physical element include killing members of the group, causing serious bodily harm or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

As there is no doubt that Israel has killed many Palestinians in Gaza, and caused bodily harm to many others, the issue on which South Africa's claims before the International Court of Justice that Israel commits genocide against Palestinians in Gaza will rise or fall is the question of intent.

SNIP

At the same time, given the statements by Israeli officials and the harsh reality in Gaza, the United Nations' top court may end up accepting South Africa's claim. But it is important to recall that because of the special intent required in genocide, it is much harder to prove it than to prove war crimes – where, for example, it would be enough to show an attack was launched intentionally knowing it will cause incidental loss of life to civilians in a way excessive to the concrete and direct military advantage anticipated from the attack.

However, while alleged war crimes committed by both Hamas and Israel are now under investigation in the other international court located in the Hague – the International Criminal Court – the International Court of Justice would not have jurisdiction regarding claims on "merely" war crimes.

This is because the world court – unlike the International Criminal Court, which deals with criminal prosecution against individuals – deals only with claims against states, only has jurisdiction based on the consent of states. In this case, such consent exists because both South Africa and Israel are members of the Convention on the Prevention and Punishment of the Crime of Genocide, which determines that disputes relating to the convention shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

SNIP

However, direct compliance is not the whole story. While a U.S. veto may protect Israel from enforcement decisions in the Security Council, an order by the world court may lead to different forms of international pressure upon Israel: diplomatic and political, economic and legal.

Whether the court proceedings will help alleviate the huge suffering caused to civilians during this war remains to be seen. Ending the horror afflicting so many, both Israelis and Palestinians, is a noble goal. The question of whether international law, with all its limitations – be it ones of jurisdiction, merit or compliance – can assist in reaching this goal is one we will be attuned to in the next few months.