Israel files report to ICJ detailing actions in Gaza Strip do not constitute genocide

Gazans next to bombed buildings in Rafah, 25 February 2024

Chen Maanit and Jonathan Lis report in Haaretz on 26 February 2024:

Israel submitted a report on its actions in Gaza to the International Court of Justice within the timeline set out for it to do so by the court in January, a political source told Haaretz Monday.

The World Court issued orders at the end of January stating that Israel must prevent genocide in Gaza and punish public incitement towards genocidal acts, and requested that it report on its actions in Gaza in relation to these orders within a month.

Sources have told Haaretz that the Israeli report is expected to be short, dealing mainly with evidence that Israel is fulfilling its humanitarian obligations to Gazans and is complying with the provisional measures ordered by the court in its interim decision.

This week, the International Court of Justice, also known as the World Court, wrapped up hearings on another case before it involving Israel – on the legality of the occupation of the West Bank, including East Jerusalem, which Israel effectively annexed in 1980. The case is the result of a UN General Assembly request for a nonbinding advisory opinion from the court on the legal consequences of the occupation.

In its report this week on South Africa’s genocide claim, Israel is expected to assert that it is permitting humanitarian aid, including food and medical equipment, to enter Gaza in an organized manner and is permitting civilians to leave areas in which there is fighting, in accordance with international law. The report is also expected to state that Israel investigates suspected war crimes and cases of incitement advocating harming civilians in Gaza.

Following the hearing on the interim measures, the court rejected South Africa’s request for an order for an immediate cease-fire in Gaza. However, it demanded that Israel take steps to prevent genocide, prevent and punish incitement to genocide, ensure that basic services and humanitarian aid are provided to Gazan civilians, prevent evidence of harm to civilians from being destroyed, and report the actions it is taking to comply with these.

The general direction of Israel’s report may be reflected in comments that Attorney General Gali Baharav-Miara made last week at a police convention, in which she called South Africa’s allegations of genocide “scandalous” and the claim that Israel was violating the international Genocide Convention “absurd.”

Israel is showing international legal tribunals that “the Israel Defense Forces’ determined action [is] based on the purity of arms and overall compliance with domestic and international law, which are an expression of the strength of our country,” the attorney general said. She added hat Israeli law enforcement have and continue to investigate and take legal action against those who express support for harming innocents.

The International Court of Justice in The Hague, February 2024

Similar statements in are expected to appear in the report that Israel submits to the court. According to sources, the report will also provide details that the IDF has begun to take in recent weeks to examine and investigate possible war crimes – or at least an indication of the steps it is taking. Last week, in a letter to IDF commanders, the military advocate general, Yifat Tomer-Yerushalmi, said she has seen evidence of acts by Israeli soldiers during the war that “don’t fulfill the IDF’s values, exceed orders, and cross from the disciplinary field into the criminal.”

Tomer-Yerushalmi noted that after matters are examined, the Military Advocate General’s Office will decide what steps should be taken against suspects, such as a change in rank, military disciplinary action, and formal legal action.

At the hearings on the occupation that concluded this weekend, 52 countries appeared before the court to express their positions on the subject, including the United States, the United Kingdom, Iran, South Africa, and Egypt. The justices’ non-binding opinion is expected to be issued in the coming weeks and will be provided to the UN General Assembly, which requested it.

Experts in international law have told Haaretz that the proceeding demonstrated that the world’s patience with Israel has ended and that a clear majority of countries said the occupation has gone from temporary to permanent and, as a result, violates international law. They claim that it also violates the Palestinian right to national self-determination, constitutes illegal annexation, and should end immediately.

Israeli lawyer Michael Sfard says an “absolute majority of countries agree that the occupation has become illegal. If the court adopts that stance, one of its implications could be that the international community would impose sanctions on Israel to immediately end its control over the occupied territories.”

Two main arguments in support of the illegality of Israeli control over occupied territory predominated in the presentations to the court. One was that Israeli practices – notably Jewish settlements and the regime surrounding them – deprive the Palestinians of self-determination and render Israeli control of the occupied territories illegal. They also said that violence against Palestinians by some settlers appears like part of a system that creates an illegal reality.

The second argument was that Israel cannot justify the occupation, which began in 1967 in the aftermath of the Six-Day War, on the grounds of self-defense. This is because, the countries claim, there is no connection between many of the actions Israel has taken and self-defense.

Prof. Eliav Lieblich, a Tel Aviv University international law researcher, says the claim that Israel’s occupation is illegal and permanent rather than temporary rests in part on policy guidelines and papers signed when the current government was formed. The guidelines are seen as evidence that Israel intends to continue the occupation permanently. “The implications of the situation, according to these countries, is that the occupation needs to end immediately and unconditionally, and that Israel shouldn’t be helped to main it,” he says.

Israel has rejected the World Court’s authority to rule on the occupation. Its basic argument, which is backed by the United States, is that the conflict with the Palestinians has to be resolved by negotiations rather than unilateral steps. In addition to the U.S., the other main country taking Israel’s side is the U.K., which was joined by Hungary and Germany (although the latter did not present oral arguments to the court.)

Sfard, the Israeli lawyer, mentioned a claim presented by the U.S., that an advisory opinion from the court on the illegality of the occupation could harm efforts to solve the conflict through negotiations. Prof. Lieblich, meanwhile, says that besides the U.S., the countries that came down on Israel’s side mainly addressed the argument that the court had no jurisdiction to issue an opinion, and less so the substance of the discussion.

In this regard, Sfard says Britain has “unfinished business” with the World Court, which issued an opinion that its presence on the Chagos Islands in the Indian Ocean has to end. (In 2019, the court ruled that Britain should cede its control of the islands to Mauritius “as rapidly as possible.” In response, Britain has said that the opinion was advisory and nonbinding).

Prof. Lieblich raises another point, saying that “it’s interesting that Israel is relying in its response on the Oslo Accords [which established the Palestinian Authority], which outline the appropriate way to end the dispute. These are the same agreements that Prime Minister Netanyahu attacks on a regular basis.”

It was the Palestinians who shaped the major line of argument against Israel before the court. Palestinian Foreign Minister Riyad al-Maliki said Israel must end the occupation immediately and accused Israel of subjecting the Palestinians to discrimination and apartheid for decades.

In a response from the Foreign Ministry, spokesman Lior Hayat stated: “By hurling false accusations and creating a fundamentally distorted reality, the Palestinian Authority is trying to turn a conflict that should be resolved through direct negotiations and without external impositions into a one-sided and improper legal process designed to adopt an extremist and distorted narrative according to which the Palestinians have no responsibilities and Israel has no rights, which has nothing to do with justice.”

This article is reproduced in its entirety