Gaza (2023). Photo by Wafa via Wikimedia Commons.
The article is a part of an ongoing post, updated periodically, in which Editor of the Quick Thoughts Series on Jadaliyya provides commentary on the war on Gaza. This commentary may or may not appear elsewhere on the author's social media.
South Africa's application to the International Court of Justice (ICJ) accusing Israel of genocide is, to the best of my understanding, only the fourth time a state has been accused before this court of violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The other three are: Bosnia and Herzegovina v Serbia and Montenegro(1993-2007); The Gambia v Myanmar (2019-); Ukraine v Russian Federation (2022-). In other words, the first case was submitted to the Court more than four decades after the Convention was adopted.
Each case is of course very different, and only in the case of Bosnia has a final ruling been issued. But the others are worth examining for clues they might provide about how the Court will deal with the case initiated by South Africa. I should add from the outset that I'm not a specialist in either international law or the Genocide Convention, and that we also need to take into consideration that the composition of the Court, as well as the legal and political environment in which it operates, has changed over the years.
The Bosnia case lasted fourteen years from the time it was submitted in 1993 until a final ruling was issued in 2007. There were a number of reasons for this, such as disputes about the standing of the parties and their status as parties to the Genocide Convention after the disintegration of Yugoslavia. These will not be at issue in the Palestine case. Secondly, Bosnia's main accusation was that the Government of Serbia in Belgrade exercised command responsibility over Bosnian Serb forces organized within the framework of Republika Srpska, which introduced a further complicating element that will not figure in the South African claim against Israel.
The first observation is that the Court issued provisional measures (akin to an injunction) within a few short weeks of Bosnia's initial 1993 application. These were however of a fairly general nature, instructing Serbia "to take all measures within its power to prevent commission of the crime of genocide". Even though war was raging throughout Bosnia at that time, it did not make any specific demands regarding, for example, an immediate and comprehensive cessation of hostilities. This may reflect the reality that the Court had not yet established whether or not Serbia exercised command responsibility over the forces of Republika Srpska.
The second observation concerns the Court's final 2007 ruling. Having considered all the evidence, which was voluminous given the documentation collected and made available to the Court by the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICJdetermined that only the 1995 Srebrenica massacre qualified as an act of genocide. Neither the numerous other massacres, mass rapes, or concentration camps the Court considered were assessed to qualify as genocide. Where the Court felt that the criteria of intent was insufficiently substantiated, or that there was at least one plausible alternative to genocide as the motivation for particular atrocities, it rejected the claim that these constituted acts of genocide. Whether the Court would have characterized the entire military campaign rather than individual acts as genocide if it had reached different conclusions about other events is to me unclear, but I suspect not.
Because the case was brought to the ICJ pursuant to the Genocide Convention, and war crimes and crimes against humanity fall outside its purview, the Court drew no further conclusions with respect to acts it determined were not genocidal in character.
In its judgements the ICJ generally followed the lead of the ICTY. This raises the possibility that in adjudicating South Africa's claims the Court may look into the conclusions reached by the investigation into "The Situation in Palestine" by the Office of the Prosecutor of the International Criminal Court (ICC). If so, it will take all of three minutes to do so because, pretensions and press statements notwithstanding, there is no ICC investigation and can therefore be no conclusions to consider. Would such a scenario compel ICC Prosecutor Karim Khan to begin to take his job and responsibilities seriously and finish his homework? Don't hold your breath, you're guaranteed to asphyxiate.
The Court also found that Serbia was not responsible for the genocidal act in Srebrenica perpetrated by the forces of Republika Srpska, because it did not exercise command responsibility over them. What was interesting in this respect was the dissenting opinion of the ICJ Vice President, Judge Awn Al-Khasawneh of Jordan. Al-Khasawneh took the view that, going beyond the stringent requirements concerning intent imposed by the Genocide Convention, the majority chose to adopt an unrealistically high bar, and could and should have inferred intent from conduct to a greater extent than they did.
Al-Khasawneh additionally argued that his colleagues would have reached a different conclusion if they had gained access to the "redacted" sections of documents provided by Serbia's Supreme Defence Council, and that they had the "power to do so". Those who think South Africa merely needs to present the avalanche of available facts to the ICJ to substantiate its case would do well to read Al-Khasawneh's dissent. And take into consideration that Serbia had considerably fewer friends on the court than does Israel.
In the Myanmar case, which has been ongoing since 2019 and concerns Gambia's claim that Myanmar has committed genocide against the Rohingya in that country's Rakhine State, provisional measures were also issued within weeks of the initial application. As in the Bosnia case these were also general in nature, but closely reflected the general nature of Gambia's requests. (NB: Gambia's invocation of its responsibilities to prevent and punish genocide by other signatories of the Convention, even though it was itself not directly affected by Myanmar's actions, was accepted by the Court and served as a template for South Africa's proceedings against Israel.)
Of particular interest in this case is that Gambia identified Myanmar's "clearance operations", the systematic destruction of Rohingya villages designed at "removing them from Myanmar", as evidence of its genocidal intent and policy. This even though ethnic cleansing was specifically considered and excluded from the definition of genocide by the delegates who finalized the Convention in 1948. If the ICJ takes the view that these actions demonstrate an intent to erase the Rohingya identity and are thus indeed genocidal, this could have implications for its assessment of Israel's actions in the Gaza Strip, which have included systematic destruction of the entire territory, to the extent that it now looks different from space.
The second noteworthy aspect is that Canada, Denmark, France, Germany, The Netherlands, and the United Kingdom in November 2023 – just one month before South Africa launched its case against Israel – submitted a joint declaration to the ICJ supporting Gambia's allegations against Myanmar. In their joint declaration these governments make numerous statements revealing an expansive interpretation of genocide and of the application of the Genocide Convention.
I'm inclined to suggest that it will be very hard for them to reverse course and say they didn't really mean what they said in order to ensure their observations and analysis are not applied to Israel. But, as always when dealing with European governments, assume consistency and principle at your peril. Germany for one has already haughtily denounced the South African application, and among these governments only Canada has come out in open support of the ICJ (while indicating this does not mean it supports the South African case). Given that that the recent Dutch elections were won by Geert Wilders, a platinum blond airhead who thinks Jordan is Palestine, and all-around Israel flunkie, don't be surprised if the Dutch government – should Wilders come to lead it – expels the ICJ from The Netherlands if it proceeds with this case. When it comes to perpetuating Israeli impunity, anything goes.
The most recent case was that launched by Ukraine against Russia in 2022. Like the Myanmar case, it remains ongoing. Nevertheless, it too has already produced several points of interest.
First and foremost, the Court on this occasion issued Provisional Measures that went beyond the general obligation not to violate the Genocide Convention. It specifically called on Russia to "immediately suspend" its military operations within Ukrainian territory. Secondly, the Court one week later issued a new set of Provisional Measures expediting its consideration of the case.
The Ukraine case is somewhat different from the others in that Ukraine is not accusing Russia of genocide. Rather, it is rejecting an accusation made against it by Russia in multiple official statements, but not before the ICJ pursuant to the Genocide Convention. Ukraine claims that Russia has falsely accused it of genocide, and that Russia is using this false allegation as a justification for its invasion of Ukraine. It on this basis requested an end to Russian military operations within Ukraine as a provisional measure.
The Court found that Ukraine presented a plausible case that it is not engaged in genocideand decided provisional measures accordingly. Additionally, the Court considered it "doubtful" that the Genocide Convention authorizes the unilateral use of force against a foreign state to enforce the Convention. This explains the explicit ceasefire order, issue to Russia alone, as compared to the more general provisional measures the Court issued in the other cases. Like Israel during the 2004 Advisory Opinion on the West Bank Wall, Russia chose not to participate in the proceedings and was therefore not in a position to contest Ukraine's various claims.
While South Africa has called for a cessation of Israeli military activity in the Gaza Strip, if this is accepted by the Court it would be for very different reasons than in the Ukraine case. In other words, the Provisional Measures adopted by the ICJ in Ukraine don't constitute much of a precedent for Gaza.
Interestingly, the Court rejected the intervention of the United States in the Ukraine case at this stage of the proceedings (unclear if in full or in part), on the grounds that Washington in 1948 entered a reservation upon its ratification of the Convention that its prior consent must be obtained for its involvement in any subsequent case. It had forgotten to provide it. Or something like that. Team Biden will no doubt be more diligent when it comes to defending its favorite protégé.
The above cases may or may not be relevant as South Africa proceeds with its claims against Israel. But it's useful information nonetheless. All the documents cited are available on the ICJ website, and well worth reading.