Will the ICJ find Israel guilty of genocide?
Palestinians wait to receive the bodies of their relatives killed in an Israeli airstrike, Al-Najjar Hospital, southern Gaza Strip, 7 December 2023
Meron Rapoport writes in +972 on 11 January 2024:
The International Court of Justice (ICJ) today began a landmark hearing to determine whether Israel’s devastating war on the Gaza Strip amounts to the crime of genocide. While the deliberations on that question could take years, South Africa, which filed the lawsuit, is aiming for the ICJ to issue several interim orders, including requiring Israel to immediately suspend its military operation; a ruling on these provisional measures could be issued within weeks. Whether or not Israel would obey is another matter.
In an 84-page document submitted ahead of the hearing, South Africa alleges that Israel has violated the 1948 Genocide Convention — to which both states are signatories — because its current actions “are intended to bring about the destruction of a substantial part” of the Palestinian population in Gaza. At the time of the hearing’s opening, Israel is reported to have killed over 23,350 Palestinians and forcibly displaced 85 percent of the Strip’s population over the past three months of hostilities. The tightening of the siege since the Hamas-led attacks of October 7 has also resulted in conditions of severe starvation and the growing risk of mass death from disease.
In a move that bucks its longstanding proclivity for boycotting hearings at international courts, Israel has chosen to assemble a legal team to defend itself. Two decades ago, Israel refused to participate in an ICJ hearing concerning the legality of the separation barrier it had built in the occupied West Bank, and has likewise snubbed more recent proceedings regarding the legality of the occupation. Israel has also boycotted hearings into its conduct at the International Criminal Court (ICC), a separate entity from the ICJ which is located just across the street in The Hague.
Michael Sfard, one of Israel’s leading human rights attorneys who deals extensively with the state’s violations in the occupied territories, is very familiar with this arena. Like many lawyers, he is in no hurry to wager on the outcome. That said, in an interview in his office earlier this week, he told +972 and Local Call that South Africa can certainly reach the threshold of proof required at this stage for an interim order instructing Israel to stop the fighting in Gaza. An order could also be issued requiring that Israel report to the Court on how it is acting to prevent genocide, and how it is dealing with the incitement to genocide emanating from its own political leaders.