Humanity vs. 'Israel'; an illegal occupation tried legally
8 Min Read
It seems like the law is finally catching up with the Israeli occupation as its atrocities are so flagrant that they cannot be ignored anymore.
-
An illustration showing Netanyahu covered in the blood of Palestinians (Illustrated by Arwa Makki; Al Mayadeen English)
For the first time since “Israel” occupied Palestine in 1948, the world is witnessing a historical legal event. South Africa, supported by many countries around the world, from Ireland to Venezuela, has filed a lawsuit against “Israel” before the International Court of Justice in The Hague, Netherlands. “Israel has been committing genocide in Gaza,” states the lawsuit of 84 pages and a variety of evidence; to be accurate, strong incriminating evidence the least of which are 200 statements made by Israeli officials from both political and military levels. Right now, the first hearing is taking place in the presence of a South African legal team led by John Dugard, a former UN special rapporteur on human rights in the occupied Palestinian territories, on the one hand, and a legal team for the occupation, on the other, represented by Malcolm Shaw, a 76-year-old British-Zionist legal expert, who is considered one of the world’s leading experts on international law and has appeared before the ICJ in the past.
Meet the International Court of Justice
The International Court of Justice is the principal judicial organ of the UN established in 1945 by the Charter of the United Nations. Its role is to settle legal disputes submitted by states and to give advisory opinions on legal questions referred by authorized UN organs and specialized agencies. The court settles two types of legal disputes: Contentious cases and advisory proceedings.
It is important to note that the rulings of the ICJ are final and legally binding as they aren’t subject to appeal.
Can ‘Israel’ be tried before the ICJ?
Contentious cases, as per the ICJ Statute, are "cases limited to States." The Statute of the Court defines States as State Members of the UN, other States that have become parties to the Statute of the Court, or States that have accepted its jurisdiction under certain conditions. These conditions are met either by entering into a special agreement to submit the dispute to the Court, including a jurisdiction clause that permits the parties or one of them to refer to the Court, or through declarations made by the two states involved under the Statute accepting the jurisdiction of the court as compulsory.
To answer the question, we need to look into how proceedings may be instituted before the Court in one of these two ways: either through the notification of a special agreement, a bilateral document lodged to the Court by either or both State parties to the proceedings or using a unilateral application, submitted by an applicant State against a respondent State.
To begin with, South Africa and "Israel" are both members of the United Nations, which makes them both bound by the Statute of the Court specifically Article 36(1), stating that the Court’s jurisdiction “comprises…. all matters specially provided for…. In treaties and conventions in force.”
To avoid any legal loopholes, South Africa is building its lawsuit on the 1948 UN Genocide Convention as a jurisdictional basis. Article 9 of the Convention states: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
Hence, as both South Africa and "Israel" are signatories to the mentioned convention, article 9 serves as the provision that allows either party to refer to the court.
Provisional measures vs. a state’s right to self-defense
Knowing that the ruling of the lawsuit might take several years, South Africa requested the Court to order provisional measures to “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives.”
The Court can take provisional measures without determining whether any Israeli violation of obligations under the Genocide Convention has occurred. Thus, there is no need to wait for the ruling of the lawsuit. What the court is required to do at the stage of making an order on provisional measures is to establish whether the acts complained of are capable of falling within the provisions of the Genocide Convention without the need to determine that all such acts are capable of falling under it, thus making South Africa’s claim a solid one for at least some of the acts South Africa says are capable of falling under the Convention. This is known as "prima facie"; a Latin expression meaning “at first sight," “at first view," or "based on first impression." It denotes that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. It is important to note that the claim presented to the Court extensively and accurately backed the argument of the Court’s jurisdiction on the provisional measures.
Unfortunately, once again, those who happen to support occupation and genocide in this world are using “a state’s right to self-defense” as a counter-argument to hinder the one presented regarding provisional measures. But how?
Article 51 of the UN Charter states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
They are claiming that the jurisdiction basis for the provisional measures by South Africa does not rise from the Genocide Convention itself but rather from what South Africa stated regarding the “prima facie” above. In that case, it only has to appear that a “jurisdiction could be founded," prompting pro-occupation and genocide advocates to claim that the Court may act based on the possibility of jurisdiction that violates "Israel’s" right to "self-defense".
In 2004, an advisory opinion from the ICJ itself denied that Article 51 was relevant to "Israel’s" construction of a wall in the West Bank allegedly meant to stop what 'Israel" dubbed "terror attacks". The Court declared that the attacks against "Israel" did not come from a foreign state as it exercises control in that territory and the threat "Israel" claimed originated from within the territory occupied by "Israel". In addition, it is highly important to shed light on the fact that the right to "self-defense" only works against states, and Hamas is not a state. Some legal scholars have been trying to argue differently, but as of today, no court or legal precedent has ever given a contradictory opinion.
He who digs a pit for his brother falls into it
Recently in Ukraine v. Russia (2022) and under the same Convention in the South Africa v. "Israel" case, the ICJ approved provisional measures and ordered Russia to “immediately suspend the military operations that commenced on 24 February 2022 in the territory of Ukraine.” This will serve as a very important precedent that can be used in the lawsuit by South Africa cornering the Court into accepting the claim or showing the world that the most important court in the world is biased if it refuses to. Who would actually still respect the law after that?
The oppressed of the world unite
South Africa stated in its case presented to the ICJ that "Israel" is built on a “background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination and the ongoing denial of the right of the Palestinian people to self-determination.”
Twenty- five countries and an organization of 57 states have shown support for South Africa in this case, several of which had to deal with the terror of imperialism. We can’t know where this case will lead us or if history is going to be made, but one thing is for sure, none of what is happening looks good for the occupation or its allies.
