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11 January 2024updated 23 Jan 2024 10:16am

“I’m not sure how Israel is going to overcome this”

South Africa presents its case to the International Court of Justice accusing Israel of genocide.

By Alona Ferber

On 11 January, the International Court of Justice (ICJ) in the Hague heard South Africa’s case that Israel has shown “chilling” intent to commit genocide in Gaza since the war against Hamas began in early October. Kenneth Roth, the former head of Human Rights Watch and a lawyer, spoke to the New Statesman about what’s at stake and what happens next.  

Alona Ferber: What’s at stake for Israel in the ICJ case, and what could be the outcome for Israel? 

Kenneth Roth: What South Africa is asking for now are so-called provisional measures which could be understood as a preliminary injunction that would order Israel to stop any conduct in Gaza that could further acts of genocide. It’s not necessarily [asking to] stop the entire war, but it’s probably pretty close to that. It would be a radical shift in the way that Israel’s been conducting the war, if [the court rules] South Africa’s allegations as true. 

AF: How does the process work? What happens next from today? 

KR: Today South Africa made its case, tomorrow Israel presents its defence. The court then decides but pretty quickly; I think within two to three weeks we could expect a decision. And of course, this is the decision on the provisional measures, so it’s not a decision on the merits of the case and in fact, South Africa went out of its way to say today that the court doesn’t have to decide the ultimate merits. They don’t even have to say that Israel is committing genocide. It’s enough to determine that it’s plausible that Israel’s committing genocide, and therefore issue a preliminary injunction. So in other words, the broader case of whether Israel is committing genocide or not is going to be a protracted process. The International Court of Justice is not quick when it comes to deciding the merits of cases like that. But these provisional measures would be decided quite quickly, probably on the basis of the evidence submitted by the two parties now. 

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AF: So there won’t be more hearings? It’s these two days and that’s it? 

KR: I think that’s most likely, yes. 

AF: Why is it South Africa that’s brought the case? 

KR: I think the South African government sees itself as a long-term defender of Palestinians. It is motivated in part by the fact that the current South African government was the victim of apartheid, and they see Palestinians in the occupied territory today as also being victims of apartheid. So that deepens the sense of solidarity. South Africa also doesn’t share the Western presumptive deference to Israel and it has a very sophisticated group of lawyers. You couldn’t help but watch this morning’s presentation and not be impressed. South Africa had the legal means to mount a complicated case like this quickly and effectively, and it had the historical sympathy with the Palestinians. It also had the inclination to act in the face of what it sees as genocide in a way that Western governments that might have reacted to other genocides were not responding here. 

AF: The indictment from South Africa’s legal team, and the evidence presented today in The Hague, includes acts that South Africa argues are “genocidal in character” – such as the sheer scale of civilian death and harm in Gaza, the use of dumb bombs which it said makes attempts to minimise civilian harm negligible, the lack of humanitarian aid into the Strip, and the harm to maternity services, pregnant women, and newborn babies – as well as evidence of genocidal intent. This includes statements by Israeli officials like Prime Minister Benjamin Netanyahu, and other public figures, including popular singers. What kind of statements form the basis of the case? 

KR: There are in essence are two parts to a genocide case. One is certain predicate acts, whether it’s killing significant numbers of people or creating conditions that lead to the destruction of the people or impeding births on a large scale. These are various predicate acts, all of which are criminal in their own right, but to be genocide, they have to be done with genocidal intent, meaning with an intent to eradicate in whole or in part, a national, ethnic, racial or religious group as such, as per the Genocide Convention. So the South African legal team really focused on both parts quite comprehensively. For each possible predicate act they described things that Israel was doing that added up to that.  

Then they looked [at] genocidal intent, and they made the intent argument both from statements by senior Israeli officials and, by inference, the conduct on the ground. In terms of statements, they went through the ones that at this point I think most people are familiar with. They used Netanyahu’s reference equating Gaza with Amalek and the Biblical injunction to kill every man, woman, child or animal. They used [Defence Minister Yoav] Gallant’s “human animals” reference, making clear as it was appropriate that this was not a reference to Hamas; it was stated in the context of the siege and therefore about everybody in Gaza [Gallant, at the outset of the war, said Israel was “fighting human animals”]. They also used [President Isaac] Herzog’s statement that everybody in Gaza is responsible [for what happened on 7 October] because they voted for Hamas, even though that doesn’t make you a legitimate military target.  

The point has been made that half of the residents of Gaza weren’t even old enough to vote at the time, but more to the point, even if today you applaud Hamas, that doesn’t make you a legitimate military target, you’re still a protected civilian. One part I found particularly chilling was when they showed a video of a bunch of Israeli soldiers singing, dancing and saying that there are no uninvolved civilians. That’s an invitation to war crimes. That is evidence that the genocidal statements from the top are being received by the soldiers on the ground.  

They put all that together, but then they also looked at how Israel is conducting itself. Even if Hamas is using human shields, even if Hamas is operating from civilian areas, nonetheless, Israel has a duty to respond in a way that avoids disproportionate harm. South Africa’s legal team noted they’re dropping 2000-pound bombs in the middle of populated areas, knowing that devastating consequences that has for civilians. They talked about the attacks on healthcare at a moment when it’s desperately needed, ostensibly because there’s a Hamas command centre underneath the Al-Shifa hospital but they’ve never shown that. To this day, they’ve shown a few rifles and a tunnel. There was a presence, but nothing that we’ve seen so far that would justify shutting down a major hospital in the middle of the war. These are all war crimes in their own right, but also it shows a disregard for Palestinian civilian life and welfare which is both a consequence of genocidal intent and can be used as evidence of it. 

AF: So far, UNSC resolutions on the war have not made a difference in Israel’s conduct. ICJ rulings are legally binding but unenforceable. Given that Israel has said it thinks South Africa’s claims are baseless, is there any reason to believe Israel would follow the ruling of the court?  

KR: ICJ rulings depend on the Security Council to enforce, so that would require the US not to veto. But I think we probably shouldn’t get too caught up on that because will the US allow coercive measures so that Israel complies with the possible order to prevent further acts of genocide?  

Probably not. But if Israel – a state founded from genocide, a state founded to protect Jews from the Holocaust – is found to be committing genocide, that is a huge stigma and it would put powerful pressure on Netanyahu to finally to relent. It would also be pressure on Biden to stop providing unconditional arms and military aid, to start at least conditioning it on an end to these kinds of war crimes. So it would be very powerful even if the Security Council doesn’t act.  

AF: Israel is going to present its case tomorrow. So far it has said its claims are baseless. Today, Israeli Foreign Ministry spokesperson said the ICJ hearing was “one of the greatest displays of hypocrisy in history” and that South Africa is “the legal arm of Hamas”. How do you think Israel will argue its defence when it faces the court tomorrow? 

KR: I don’t know what they are going to say tomorrow. I hope it’s more sophisticated than what these official spokespeople are saying, because so far these comments I’ve seen today are pathetic, if not worse. To say that South Africa is the legal arm of Hamas is further evidence that the Israeli government equates Hamas with the Palestinian population of Gaza, because South Africa is clearly acting to protect Palestinian civilians. They’ve condemned Hamas. And for the Israeli spokesperson to equate the two is just further evidence of genocidal intent so I hope they do better than that tomorrow. 

AF: With the case presented by South Africa being so comprehensive, what could Israel possibly present in return? 

KR:  Israeli spokespeople have said that Hamas should be charged with genocide. Even if that’s true, genocide by one side doesn’t justify genocide by the other. They may say Hamas committed all these atrocities. That’s all true. That doesn’t justify genocide. If they get a bit more sophisticated, they will say that they’ve issued warnings to Palestinians civilians [to vacate areas about to be bombed], that this is inconsistent with genocidal intent.

But of course, the comeback to that is that these warnings were sending people to areas that were being bombed, as South Africa showed today. I think they gave a number of around 200 of these 2,000-pound bombs that have been dropped in the so-called safe areas, that were being deprived of the basic necessities needed to receive displaced people. If these were humane gestures, they were done in a very inhumane way and probably are not sufficient to negate genocidal intent. Israel will probably say, as they always do, “human shields, human shields, human shields”.

But again, even assuming that Hamas use human shields, which of course it does, the attacker still has a duty to avoid firing if the harm would be disproportionate to civilians, and Israel has engaged in disproportionate attacks repeatedly, with, for example, the 2,000-pound bombs dropped on the Jabalia refugee camp being a perfect illustration of that. They destroyed these huge apartment buildings because of some ostensible, unspecified Hamas presence, or shut down the hospitals in the middle of war because of some unproven command centre underneath. These are all disproportionate attacks that the mantra of human shields doesn’t justify. 

AF: South Africa has made a really compelling case then? 

KR: It was a strong case. They had top notch lawyers who were very factual and presented a lot of evidence. I’m not sure how Israel is going to overcome this. 

AF: Israel says it is singled out by the UN and other intentional bodies over human rights violations.  Do you think there is any truth to that? 

KR: Very few cases are brought before the ICJ, and very few countries are even arguably committing genocide, so it doesn’t really work in this case. I think where it’s come up more has been on the UN Human Rights Council, where indeed there have been a large number of resolutions against Israel. Israel is the only situation that has its own agenda item. But where the hypocrisy came to light was when some governments began to say, “OK, we’ll have, a single consolidated resolution introduced under a regular agenda item, not under the special agenda item” – and still the US government opposed it. So, it isn’t really about the numbers of resolutions, it was about criticising Israel. This is just an excuse to try to stop the criticism of Israel. 

AF: What implications do you think this case has for human rights more broadly, and for the state of international humanitarian law? 

KR: Assuming – which I still think is the most likely case – that the ICJ does issue provisional measures urging that Israel stop military conduct that is leading to acts of genocide, or something along those lines, I think this will be seen as a vindication of human rights law and an opportunity for a southern government to uphold human rights even in a situation where the traditional defenders of human rights, the West, were not effectively acting. For me that’s the significant thing here because, in the realm of power politics, the powerful governments were sticking with Israel. But what international law has the potential to do is to empower less powerful governments to uphold the law, and South Africa clearly has the legal capacity to do that, and it’s to its credit that it’s done so. I see it a potential vindication of human rights law, applying even to the powerful, even to the West.

[See also: The slipperiness of ceasefire]

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