01/10/2024, 20.16
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Lawfare over 'genocide' in Gaza at the International Court of Justice

On 11 and 12 January, hearings are scheduled in The Hague following a complaint filed by South Africa against Israel for its war against Hamas in Gaza. Its request for "provisional measures" could lead to a quick opinion within the next few weeks. Netanyahu chose one of the most critical voices of its controversial justice reform to defend Israel’s case.

Jerusalem (AsiaNews) – The legal battle against Israel will start tomorrow at the International Court of Justice (ICJ) in The Hague (Netherlands), after South Africa filed charges of "genocide" of the Palestinian people against the Jewish state as a result of its war against Hamas in the Gaza Strip.

This could fuel further tensions in the Middle East, a region already grappling with a dangerous escalation on Israel’s northern front with the possible involvement of Lebanon’s Hezbollah.

Meanwhile, the United States is redoubling its diplomatic efforts with the sixth tour of the region by Secretary of State Anthony Blinken, who yesterday met with Israeli Prime Minister Benjamin Netanyahu in a tête-à-tête that was anything but cordial and whose contents remain secret.

Mr Blinken is proposing a plan to defuse the conflict and boost aid to Gaza, stressing the prospect of a normalisation of relations between Israel and Saudi Arabia, a step that Riyadh has kept open in exchange for the recognition of a Palestinian state.

The case in The Hague was also at the centre of the talks between Blinken and Netanyahu who, at least in this case, received the support of his US ally.

The legal dispute began on 29 December, with the submission of a complaint by South Africa of “genocide” to the International Court of Justice (ICJ), the United Nations tribunal responsible for resolving disputes between states.

The hearings are scheduled to take place tomorrow and January 12 to vet South Africa’s request for “provisional measures". The African country has always been close to the Palestinian cause.

The complainant’s request for emergency action is meant to end the war launched by the Jewish state against Hamas in response to a terrorist attack by the group that killed 1,200 people in Israel and injured more than 5,000. Hitherto, the group was in control of Gaza.

In its complaint, South Africa calls for an end to the military operation in Gaza, which has caused huge material damage as well as the death of more than 23,000 Palestinians, mostly civilians, including women and children.

The court will also be called upon to assess possible war crimes related to the killing of journalists in Gaza, after Reporters Without Borders (RSF) filed two petitions with the same body.

The death in three months of at least 79 people working with media has been confirmed while the probe by the Prosecutor for the International Criminal Court, Karim Khan, also includes potential "crimes against journalists”, The Guardian newspaper reports.

South Africa’s petition is based on the provisions of the 1948 Genocide (Prevention and Punishment) Convention, to which both South Africa and Israel are signatories.

It provides that States may take legal action to invoke preventive or punitive measures against the crime of genocide, and the decisions are binding (although without the means to enforce them) on all countries, regardless of whether they ratified the Convention.

It should be noted that this proceeding is separate from another related to the Occupied Territories, carried out by the ICJ at the request of the United Nations General Assembly with a vote on 30 December 2022 with a hearing set for 19 February.

South Africa, which was ruled by the apartheid regime between 1948 and 1991, has long been a supporter of Palestine, defending the right of self-determination of its people, to the annoyance of Israel, which has recently turned into open confrontation.

This has led to the withdrawal of the Israeli ambassador last November, a few hours after the vote by the South African parliament to recommend (248 in favour and 91 against) closing its diplomatic mission in Israel until a ceasefire is in place in Gaza.

On 21 November, relations were suspended and charges of "acts of genocide" were brought forward. In the 84-page filing, South Africa accuses Israel of "genocidal" actions and omissions to wipe out the Palestinian population from Gaza, in violation of Article II of the Convention.

The complaint also includes statements by senior Israeli government officials – including ultra-Orthodox and radical right-wing ministers Bezalel Smotrich and Itamar Ben-Gvir – who called for the removal and relocation of Gaza’s population.

Added to these are statements from Israel’s Defence Minister Yoav Gallant Prime Minister, who called the Palestinians "human animals", and Israel’s Heritage Minister Amichai Eliyahu, who suggested that Israel might drop an “atomic bomb” on Gaza.

It should be noted that, in a surprise move, Netanyahu appointed Aharon Barak, the liberal-leaning former president of the Supreme Court, and one of the toughest opponents of the prime minister’s controversial legal reform, to head Israel’s delegation in The Hague.

A Holocaust survivor, now retired, the 87-year-old Barak is still among the country's most respected legal experts, despite being the subject of a harsh right-wing campaign over the past year for his opposition to Netanyahu’s reform.

Still, the prime minister wants him to lead the Israeli delegation at the ICJ, agreeing with the recommendation of Attorney General Gali Baharav Miara to appoint him, despite criticism from his cabinet’s radical right-wing members.

South Africa's case is the fifth genocide case in the ICJ’s history, after Bosnia-Herzegovina's first case against Yugoslavia (later Serbia) in 1993, and a more recent case by Gambia against Myanmar in 2019 over the treatment of the Rohingya.

Israel, which has harshly attacked South Africa for its action, is backed by the United States, which rejects the characterisation of Israeli actions in Gaza as genocide.

Conversely, Turkey, Malaysia, the Organisation of Islamic Cooperation (OIC), Jordan, Bolivia and Pakistan have sided with South Africa, while Russia, China, and European Union member states have not voiced any opinion yet.

It should be noted that, usually, such cases take years to reach a conclusion, but the request for “provisional measures” to prevent further violence against civilians contained in the petition could greatly speed up the legal process with a first opinion possibly issued in the coming weeks.

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