South African World Court Challenge Could Bring Gaza Genocide to an End

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Palestine South African Challenge

The International Court of Justice (ICJ) announced on 29 December that South Africa has lodge a case against Israel, alleging that the nation’s military actions in the Gaza Strip over recent months have breached the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

The move on the part of the former apartheid state of South Africa has been welcomed by critics of the Israeli operation in Gaza over the last three months, which has resulted in the death of at least 22,000 mainly civilian Palestinians living in the walled-in region of Gaza.

According to South Africa, “acts and omissions by Israel… are genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as part of the broader… national, racial and ethnical group… in violation of its obligations under the Genocide Convention”.

The ICJ is the principal judicial organ of the UN, and whilst nations like the US have been facilitating Israeli actions in Gaza, via the framing of the wholesale massacre as merely an act of self-defence on the part of the Netanyahu government, South Africa has stepped up to put a stop to Tel Aviv.

The ICJ hearing could take place as early as next week. If the South African case is successful, a cease-and-desist order will be issued to Israel. And such an order from the world court could have implications for Washington, which has supplied Israel with the artillery for the mass slaughter.

Levelling Gaza

Genocide is an international crime that is defined as constituting five types of acts. The Netanyahu government stands charged with the genocidal act of killing members of a group with intent to destroy, in whole or in part, the national, ethnical, racial or religious group.

In instituting the proceedings, South Africa states that since 7 October 2023, Israel “has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide”, and the nation has engaged and continues to engage in genocidal acts against the Palestinians of Gaza.

That Israeli leaders have been making genocidal statements against the 2.3 million Palestinians living in Gaza, since Hamas fighters broke through the border wall and made deadly incursions into Israeli territory, is common knowledge.

This act of an occupied people rising up against their occupiers, however, has been cast as a standalone action, without the context of Israel having been founded on Palestinian land in 1948, that Gaza was occupied in 1967 and that since 2007, The Strip has been under a goods blockade.

“Persons charged with genocide or any of the other acts… shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction” over the parties involved, the Genocide Convention makes certain.

Bringing an end to the carnage

“No armed attack on a state’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the” Genocide Convention, South Africa’s 84 page application to begin proceedings against Israel reads.

US human rights lawyer Francis Boyle told Democracy Now on Tuesday that he was the first legal professional to win court orders against genocide, two in total, which called on “the Republic of Bosnia-Herzegovina against Yugoslavia to cease and desist from committing all acts of genocide”.

“Based on my careful review of all the documents so far submitted by the Republic of South Africa, I believe South Africa will win an order against Israel to cease and desist from committing all acts of genocide against the Palestinians,” Boyle insisted.

If the world court does find that genocide is taking place, the lawyer explained, then the 153 states that are a party to the Genocide Convention are compelled under its first article to “to prevent” the genocide continuing.

“Second, when the world court gives this cease-and-desist order against Israel, the Biden administration will stand condemned under article III, paragraph (e), of the Genocide Convention, that criminalises complicity in genocide,” the American human rights lawyer continued.

“And clearly, we know that the Biden administration has been aiding and abetting Israeli genocide against the Palestinians here for quite some time.”

A criminal court for some

Genocide is criminalised under Australian domestic law. Section 268.3 of the Criminal Code (Cth) contains the offence of genocide by killing, which involves causing the death of one or more persons of a particular national, ethnical, racial or religious group in order to destroy it, in part or entirely.

Federal criminal law also provides standalone offences for advocating genocide, genocide by causing serious harm, genocide by inflicting destructive life conditions, genocide by preventing births and genocide by forcibly transferring children.

Entering into force in July 2002, the Rome Statute of the International Criminal Court establishes the four core international criminal offences of genocide, crimes against humanity, war crimes and the crimes of aggression.

And as Australia became a party to the statute that same year, it was required to reflect these international crimes in its domestic laws, which it did in terms of inserting genocide, crimes against humanity and war crimes offences into the Criminal Code.

Boyle explained that the ICJ was set up in 1921. He added that it is the preferred route to seek justice for Gaza, as since 2009, the ICC “has not done one darn thing to help the Palestinians”. And he outlined that the ICC only pursues what its funders and masters, the US and NATO, want it to.

End in sight

“The state of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel,” said Israeli spokesman Eylon Levy during an online briefing. “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy.”

An added significance to South Africa bringing the case is that the African nation existed under an apartheid system from 1948 until the early 1990s, which saw its minority white populace ruling over a system that discriminated against and persecuted the majority Black populace.

Israel has been deemed an apartheid state by multiple human rights organisations over recent years. Perhaps the most significant judgement came from Amnesty, which delivered a report in February 2022, outlining 280 pages of evidence that prove the system in Israel is apartheid.

The Israel state has shocked the planet with its blatant mass killing operations in Gaza over the last three months, which have targeted children, women, civilians, doctors, nurses and journalists. And Israeli forces have purposely targeted hospitals, schools and refugee camps.

Eight five percent of Gazans have been displaced over the last three months, whilst 70 percent of homes in The Strip have been destroyed. And masses of humanity across the globe are watching on with a stark feeling of helplessness.

“I believe we will be able to use the world court order,” Boyle said of the South African application now before the ICJ.

“Right now, my sources tell me the hearing will be January 11, January 12. Based on my experience with the Bosnians, we can expect an order within a week.”

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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