The International Court of Justice (the United Nations’ top court) is considering charges of genocide against Israel. The case was brought by South Africa.
Adila Hassim, the lawyer for South Africa, says: “Palestinians are subjected to relentless bombing. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families."
Israel is defending itself with vigour.
“What Israel seeks by operating in Gaza is not to destroy people but to protect people, its people. In these circumstances there can hardly be a charge more false and more malevolent than the accusation against Israel of genocide,” says Tal Becker, a lawyer for Israel.
Inside Geneva asks if this is really a case for the UN’s top court.
Margaret Satterthwaite, UN special rapporteur on the independence of judges and lawyers: “This is a case about asserting humanity, and in fact asserting law over war. The purpose of the UN is to prevent disputes from turning into armed conflict. […] And the ICJ is there to help resolve disputes and to prevent war.”
Can that really work? Or will this high-profile case simply distract from other human rights violations?
“People feel like if you don't call it genocide then it's not serious and that's a mistake. Crimes against humanity are incredibly severe,” says Ken Roth of the Harvard Carr Centre for Human Rights Policy.
The ICJ’s final verdict will take years. There is no right of appeal, and member states are obliged to comply. But the ICJ has no power to enforce.
“There's not a UN police force running around making sure that states comply with their international law obligations,” concludes Satterthwaite.
Join host Imogen Foulkes on our Inside Geneva podcast to learn more about the case.
Please listen and subscribe to our science podcast -- the Swiss Connection.
Get in touch!
Thank you for listening! If you like what we do, please leave a review or subscribe to our newsletter.
The International Court of Justice (the United Nations’ top court) is considering charges of genocide against Israel. The case was brought by South Africa.
Adila Hassim, the lawyer for South Africa, says: “Palestinians are subjected to relentless bombing. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families."
Israel is defending itself with vigour.
“What Israel seeks by operating in Gaza is not to destroy people but to protect people, its people. In these circumstances there can hardly be a charge more false and more malevolent than the accusation against Israel of genocide,” says Tal Becker, a lawyer for Israel.
Inside Geneva asks if this is really a case for the UN’s top court.
Margaret Satterthwaite, UN special rapporteur on the independence of judges and lawyers: “This is a case about asserting humanity, and in fact asserting law over war. The purpose of the UN is to prevent disputes from turning into armed conflict. […] And the ICJ is there to help resolve disputes and to prevent war.”
Can that really work? Or will this high-profile case simply distract from other human rights violations?
“People feel like if you don't call it genocide then it's not serious and that's a mistake. Crimes against humanity are incredibly severe,” says Ken Roth of the Harvard Carr Centre for Human Rights Policy.
The ICJ’s final verdict will take years. There is no right of appeal, and member states are obliged to comply. But the ICJ has no power to enforce.
“There's not a UN police force running around making sure that states comply with their international law obligations,” concludes Satterthwaite.
Join host Imogen Foulkes on our Inside Geneva podcast to learn more about the case.
Please listen and subscribe to our science podcast -- the Swiss Connection.
Get in touch!
Thank you for listening! If you like what we do, please leave a review or subscribe to our newsletter.
This is Inside Geneva. I'm your host, Imogenfolks, and this is a production from SwissInfo, the international public media company of Switzerland.
Speaker 2:in today's programme, no electricity, no food, no water, no fuel for Gaza, says Israeli Defence Minister Joav Galant.
Speaker 3:The International Court of.
Speaker 1:Justice, also known as the World's Court, has been at the centre of extraordinary events. Israel has been accused by South Africa of engaging in genocide in Gaza.
Speaker 4:This is a case about asserting humanity and, in fact, asserting law over war.
Speaker 1:Children in Rafa queue up to fill their buckets and hands with water.
Speaker 2:People feel like if you don't call it genocide, then it's not serious, and that's a mistake. Crimes against humanity are incredibly severe.
Speaker 1:Palestinians in Gaza are facing the immediate possibility of starvation.
Speaker 4:the UN said today there's not a UN police force running around making sure that states comply with their international law obligations.
Speaker 2:Everything will be closed. We are fighting against human animals.
Speaker 1:That was the Israeli Defence Minister, joav Galant, referring to members of Hamas Genocide is almost always preceded by the dehumanisation of the victims.
Speaker 2:If you want to kind of mobilise your troops to go out and slaughter people, it's always useful to pretend that they are either subhuman or that they represent a lethal threat to you.
Speaker 1:Hello and welcome again to Inside Geneva. I'm Imogen Folks, and today we're going to talk about that court case, the one at the International Court of Justice, in which South Africa claims Israel and its actions in Gaza may be committing genocide. First a bit of history for you.
Speaker 5:This court is, in a most substantial sense, a pivotal point in the organisation of peace. It is our profound conviction that in that great task of peace, this tribunal will, in its appointed sphere, play a worthy and an ever-increasing part.
Speaker 1:The ICJ, founded in 1945 and sometimes also called the World Court, is the United Nations' top legal body and it is there to settle and this is important disputes between countries, not between individual people. It will only hear cases brought by countries, not by organisations like human rights groups or businesses, and it can only issue judgments against countries, not their individual political leaders. In case you're wondering how it is, then, that some individual leaders are tried for things like war crimes, that's another court, the International Criminal Court. The ICJ is there to adjudicate on the actions of UN member states and to settle disputes between them. It has ruled in the past on territorial disputes, on ownership of natural resources and also on conflict-related cases. It has 15 judges, each from different UN member states. Their rulings are final, with no right of appeal, but, as so often with UN bodies, the ICJ has no power to enforce its rulings.
Speaker 6:The court meets today and will meet tomorrow under Article 74, paragraph 3 of the rules of court to hear the oral observations of the parties on the request for the indication of provisional measures submitted by the Republic of South Africa in the case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip. South Africa versus Israel.
Speaker 1:Now we all know the conflict between Israel and Hamas has polarised opinions, and when the case between South Africa and Israel began at the ICJ in the Hague, the opening statements from the lawyers acting for each country reflected that.
Speaker 7:Palestinians in Gaza are subjected to relentless bombing. Wherever they go, they are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families.
Speaker 3:What Israel seeks by operating in Gaza is not to destroy a people, but to protect a people, its people, who are under attack on multiple fronts, and to do so in accordance with the law, even as it faces a heartless enemy determined to use that very commitment against it. In these circumstances, there can hardly be a charge more false and more malevolent than the allegation against Israel of genocide.
Speaker 1:And there are critics of this case, it has to be said. Some have suggested it's driven by politics and South Africa's long-standing support for the Palestinian people, rather than by a genuine desire to uphold the Convention Against Genocide, which both Israel and South Africa have ratified. Well, into this debate have stepped a number of United Nations special rapporteurs. They are independent experts who advise the UN on international law. They have issued a statement welcoming the case at the ICJ and calling for all UN states to respect the convention. I caught up with Margaret Satterthright, the special rapporteur on the independence of judges and lawyers, to find out more.
Speaker 4:The special rapporteurs together feel very strongly that this is a case about asserting humanity and, in fact, asserting law over war. So, if you think about the purpose of the UN, it is in fact to prevent disputes from turning into armed conflict. And the ICJ, the International Court of Justice, is the judicial organ of the UN and it's there to help resolve disputes and to prevent war in that way. And in this case you have a very clear set of legal issues that, if resolved, could go a long way to preventing and hopefully also stopping the current conflict as it is going.
Speaker 1:Well, let's dig a bit deeper into this. I mean, genocide is the word. People take a sharp intake of breath, but it's legally a fairly narrowly defined term and quite difficult to prove.
Speaker 4:So you're right that genocide is a very serious charge, it's a serious allegation and it's a very specific legal norm.
Speaker 4:So just historically, very briefly, the concept of genocide was, of course, born of a genocide, and that was the genocide of Jews in the Holocaust during the Second World War, and I think that's always crucial to recall that the definition came out of a horrible set of facts that are undeniably crucial to remember when we're talking about the genocide convention. Now, the convention itself defines genocide quite specifically it is a set of acts or a series of acts including killing members of a group, but not only that are committed with the intent to destroy in whole or in part a national, ethical, racial or religious group. So the acts are quite broad and certainly we can talk about what might be included in those. The specificity comes with the intent, so the intent of destroying and whaling in part one of these enumerated types of groups. That means that, in its case, south Africa has to show that there are these series of acts that can be seen as genocidal, meaning that they're being committed with this very specific intent.
Speaker 1:So for the ICJ to be persuaded that genocide could be taking place, it has to be persuaded of intent to destroy a group in whole or in part. But what kind of group? Israel says it's fighting Hamas, not the entire Palestinian people. Genocide is a very specific term and neither international lawyers nor human rights groups use it likely In an earlier episode of Inside Geneva, well before the Hamas October 7th attacks, I discussed the law on genocide at length with Ken Roth, then director of Human Rights Watch, now a senior fellow at Harvard's Car Center for Human Rights Policy. I thought it would be interesting to hear parts of what he had to say again, in particular why some crimes the killing of a million Tutsis in Rwanda, for example constitute genocide and others Cambodia's year zero which seem equally atrocious, don't?
Speaker 2:Frankly, the duty to try to stop mass atrocities doesn't really vary depending whether you have this added element of an intent to eradicate the group in a whole or in part. If you're just slaughtering people on political grounds, say, you still have a duty to try to stop that and genocide. I think this is one of your questions about why is Cambodia considered questionable? There's no question that the Khmer Rouge slaughtered what? Two million Cambodians? So that's a mass atrocity. It's a crime against humanity. The reason it's not, or possibly not, a genocide, and there's an interpretation that would make it a genocide, focusing on the Muslim minority within Cambodia. But for the most part, people were selected for reasons of politics, for reasons of education, and not for the four reasons that outlined, having to do with nationality, ethnicity, race or religion.
Speaker 2:And I often think of this as Stalin's contribution to the genocide convention. He was perfectly happy to condemn the things that he wasn't doing, but large-scale political persecution, which he was doing, he just wanted to make sure that that wasn't touched. And so the genocide convention doesn't preclude mass slaughter on political grounds and you can pick up all the people of ex-party and that's not genocide, even though it's a crime against humanity if you kill them. So this is just, you know, it's just one of the weaknesses of international law. It's also why we shouldn't look at genocide as you know, the sole definition of what's really really bad, because there are lots of things that are really really bad that may just not add up to genocide.
Speaker 1:So where does that leave South Africa's case against Israel? Again, it's complicated. South Africa has asked the ICJ first for a provisional ruling. We can expect that in a few weeks, but the full case could take much longer. Margaret Satterthright explains.
Speaker 4:Now we've had a round of arguments, first by South Africa as the requesting party, and then by Israel, of course, pleading in its own defense. Those arguments were only on the question of provisional measures, so if the case moves forward, there will be more rounds of argument. So, on provisional measures, the purpose of a provisional measure is to ensure that the rights at issue are protected during the pendency of the case. So you may know that ICJ cases take quite a few years normally, and so the idea of a provisional measure is to say well, we have a case before us, we want to make sure that the rights at issue are not harmed during the time that we're considering the case. So what South Africa has asked is ICJ we believe that acts of genocide are occurring and we would like you to protect the rights of the people of Gaza to be free of genocide, not to be subjects of genocide. So that's the question that has been asked.
Speaker 4:Okay, now what does that mean the court needs to do? The first thing they need to do is make sure that they have what's called prima facia jurisdiction, and that really, in normal speak, means has South Africa based its application on treaty rights and obligations that are plausible. So it's a pretty low standard because of the fact it's only asking for provisional measures. So South Africa doesn't have to prove at this point to another kind of standard. You know many people are familiar with the criminal standard of beyond a reasonable doubt. But there's also there are many lower standards for civil and for international cases. Here we're only talking about three of the faster jurisdictions. So a plausible case. So South Africa argues that they have clearly met that bar and they're now saying please order Israel on that basis to stop committing acts of genocide. And they also ask to stop inciting genocide and to also indicate measures to prevent further acts of genocide. So those are all things that they're asking for and they make some specific requests to the court in that line of thinking.
Speaker 1:I'm just wondering is there a risk that, with all of this focus on what we've agreed is quite a narrow legal definition, that is, genocide, there is another body of international law. So we have war crimes, we have crimes against humanity. We've heard about, you know, the possible disproportionality, excessive bombing, denial of food and water. Is there a danger that all of this could get ignored? Or this won't be questioned because all of the focus is on this genocide case?
Speaker 4:So I think that's an important question, and the first thing I'll say is that, on the issue of genocide, just to speak just very briefly to the evidence there, south Africa brings forward evidence of this mass number of killings. Right, we know that tens of thousands of people, it's adding by the day, have been killed, many of them children, many of them women, and we know that there have been a number of allegations of other very specific forms of atrocity. Genocide, then, requires this intent. South Africa has brought forward numerous statements, what they call genocidal statements, by high Israeli officials, and so they have something that's unusual in that they have the statements of officials of the government of Israel saying things about Palestinians, and this is how they frame it that Palestinians must be wiped off the face of the earth, or that they must be, that they're characterized as quote unquote human animals. So South Africa feels that these pieces of evidence are sufficient to make out its claim.
Speaker 4:Now, if we want to say for the moment that perhaps those statements and what Israel says to be fair, is that those statements were about Hamas, they were not about Palestinians as a group, they were about Hamas, so let's say that that is a convincing argument. If so it would seem still plainly apparent that, as you, as you asked about, crimes against humanity may be occurring, war crimes. War crimes in particular, I think, are quite evident in Indiscriminate bombing, in the disproportional impact that the large, large bombs that are being dropped are having on civilians and civilian infrastructure. That set of laws very important and it is absolutely an application now, in this current situation. However, it does not give jurisdiction to the International Court of Justice, so South Africa could not bring this case under, for example, the Geneva Conventions. So that is why it's one of the reasons why they are using the genocide convention in this case to seek the measures that they're seeking.
Speaker 1:So, as we said, this is a very specific case and it's being tried in a very specific court, the ICJ, between two states, israel and South Africa, because it's a case about alleged genocide. It has hit the headlines, but in the meantime, with less news attention. Other countries Mexico and Chile have referred Israel to another court, the International Criminal Court, over potential war crimes, indiscriminate bombing, for example, or denial of food and water. In Israel's defence, it has repeatedly said it does its best to protect civilians in Gaza and is only fighting Hamas because of the group's atrocious attack on October 7th. But should we view charges of genocide as more significant than cases over war crimes or crimes against humanity? I asked Ken Roth about that in our earlier episode and his answer is still relevant.
Speaker 2:There's almost a kind of a rhetorical inflation these days where people feel like if you don't call it genocide, then it's not serious and that's a mistake. Crimes against humanity are incredibly severe and indeed genocide is a crime against humanity, as is persecution and various forms of systematic murder and the like. To be accused of a crime against humanity is a very big deal and there's a tendency to feel like that doesn't count. We got to call it genocide unless it's genocide is not serious, and that's just not the case.
Speaker 2:Human Rights Watch tends to apply the terms of the treaty and if they fit, they fit, but if they don't, we'll call it what it is Systematic war crimes, crimes against humanity, what have you which are also very serious. And we're just trying to maintain these category distinctions, to suggest that the world should stop, say, crimes against humanity, even if it's not genocide. And I think we've saw this even going back to the Rwandan genocide, where there's a kind of a sense that if it's genocide, the world really has to act to stop it. But if not that you know, maybe you don't Now that's a mistake. So we maintain the distinctions, but we also press the world to respond to other mass atrocities. In regards to what the legal name is.
Speaker 1:So what can we expect now from the ICJ in this particular case? First, a provisional ruling, possibly calling on Israel to stop its attacks on Gaza or, at the very least, to provide more aid to civilians. As we said earlier, there is no right of appeal to an ICJ ruling, and UN member states are expected to comply. But, and here's the rub, israel, though it is defending itself at the ICJ, has already warned it will not comply with a ruling that hinders its war on Hamas. And not so very long ago, the ICJ ruled on a case brought by Ukraine against Russia, in which the ICJ ordered Moscow to immediately suspend military operations in Ukraine. Moscow, surprise, surprise, ignored it. So this latest high profile case could be very risky, not for Israel, but for the institution of the ICJ itself and even for the United Nations. Margaret Satterthright again.
Speaker 4:What is the impact of Israel already saying that they will not comply with an order by the court? That is a very distressing statement. Under international law, and specifically Israel itself, has consented to the jurisdiction of the court. They did that by ratifying the genocide convention and therefore they will be bound under international law by any provisional measures order. That means that they're bound, but, as we know, there's not a UN police force running around making sure that states comply with their international law obligations. What will that mean then?
Speaker 4:It does mean a lot anyway, because states that are already parties to the genocide convention and there's more than 150 of them all have an obligation to prevent genocide. They also have an obligation not to be complicit in genocide. If the court says there is a plausible claim here and it sets out provisional measures, all the other states that are party to the convention are going to need to undertake their own legal review to see how they must not accidentally cooperate in that plausible set of genocidal acts. That means undertaking legal review of things like arms transfer, ensuring that they're not accidentally furthering people's inability to get aid, to get medicine, food, water. The other things that South Africa claims are the conditions that are being placed on this population to hinder their survival. There's quite a lot of potential impact of an order by the court, even if Israel says that they will not implement it.
Speaker 1:That brings me very neatly to my final question, which is a broader picture. I'm very interested in how you illustrated that even if, as Israel has threatened to do, or the current Israeli government is threatened to do, ignore the ICJs verdict, there could be implications in terms of sanctions, arms export bans and so on. Nevertheless, I wonder, given the strains on multilateralism at the moment, given a lot of criticism of the United Nations, whether a case like this is risky for the status of the International Court of Justice. It is the UN's top court. It's a hugely high profile case. If it is ignored by the concerned party, doesn't it risk undermining the whole edifice of the ICJ?
Speaker 4:I think there is a risk to the ICJ here, but I actually think it's in a way the opposite.
Speaker 4:In particular, if you look at what has happened in the multilateral fora of the United Nations itself, you already have, in the Security Council, for example, 13 of 15 states who have already voted in favor of a humanitarian ceasefire.
Speaker 4:Then in the General Assembly, you have a vote of 153 in favor, 10 against, in terms of, also again, a humanitarian ceasefire. So I do think that if the court were to find that this is an implausible claim and did not actually put in place some form of relief in the way of provisional measures, I actually think that would itself cause some damage to the credibility of the court. I think, that said, the court will need to be very careful and very precise in the provision of these provisional measures. It will need to craft them carefully so that it is making clear that it is taken under serious considerations the claims that Israel has brought forward and of course those do include very real claims and evidence, of course, that Hamas committed horrible atrocities. I'd like to say that's very important. On the other hand, it's important that the courts show that it is forwarding law and that it finds law to be applicable to all states, no matter whether they say that they will comply with the law or not.
Speaker 1:It could be many years before the ICJ delivers its final verdict on this case. By that time, the volatile Middle East could look very different. In the meantime, as Margaret Satterthwaite said, all states have a duty not just not to commit genocide, but to prevent it. Regardless of the rights or wrongs of this particular case and both South Africa and Israel have made compelling statements in court genocide is an appalling crime and we created the convention to try to ensure it never happened again. Ken Roth and a reminder this interview was recorded well before October 7th described some of the warning signs that all governments should be alert to Genocide is almost always preceded by the dehumanization of the victims.
Speaker 2:If you genuinely see the victims as other human beings, you're less likely to kill them. If you want to mobilize your troops to go out and slaughter people, it's always useful to pretend that they are either subhuman or that they represent a lethal threat to you. Yes, those are precursors to genocide, but it is an over-inclusive category because you get many cases of dehumanization. The way that Viktor Orban talks about migrants to Europe. That doesn't mean that we're about to face a genocide against immigrants. Nonetheless, I think, wherever we see this dehumanization, the systematic discrimination it is worth calling out just on its own right, even though it often won't lead to genocide. I do think that in all of these circumstances, we should push governments that describe themselves as rights promoting to do more. These are all urgent situations, not necessarily leading to genocide, but nonetheless involving serious human rights violations, and the response should always be public, forceful, generating as much pressure as possible.
Speaker 1:And that brings us to the end of this edition of Inside Geneva. We hope it brought some clarity to this most contentious and talked about legal case and that, despite the many polarized opinions, we can all agree it's an important topic to discuss. If you enjoyed this edition of the podcast, check out some of our previous episodes, including in-depth interviews with the men and women doing what's called the UN's toughest job UN Human Rights Chief. You can find us and subscribe to us or review us wherever you get your podcasts. A reminder you've been listening to Inside Geneva from SwissInfo, the international public media company of Switzerland, available in many languages as well as English. Check out our other content at wwwswissinfoch. I'm Imogen Folks. Thanks again for listening and do join us again next time on Inside Geneva.