By P.K.Balachandran
Colombo, January 3 (Counterpoint): The International Court of Justice (ICJ) at The Hague will hear on January 11 and 12, South Africa’s plea for “provisional measures” to stem Israel’s genocidal war against the Palestinians in Gaza, according to diplomatic sources.
The provisional measures sought in South Africa’s plea dated December 2023 were as follows:
(1) Suspension of Israeli’s military operations in and against Gaza and ensuring that no military or irregular armed units which are directed, pported or influenced by Israel, as well as any organisations and persons which are subject to its control, direction or influence, does not indulge in any military operations.
(2) Ensuring that in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to the Palestinian people, Israel takes all reasonable measures within its power to prevent genocide.
(3) Getting Israel to recognise that it has an obligation not to commit genocide against the Palestinians under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to the Palestinian people.
Israel should desist from the commission of any and all acts within the scope of Article II of the Genocide Convention, in particular: (a) killing members of the Palestinian group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.
(4) Israel must be required to desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent: (a) the expulsion and forced displacement from their homes; (b) the deprivation of: (i) access to adequate food and water; (ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation; (iii) medical supplies and assistance; and (c) the destruction of Palestinian life in Gaza.
(5) Israel be required to ensure that it should take steps to punish those who conspire to commit genocide, attempt to commit genocide, or are complicit in genocide, as per Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
(6) Israel should be required to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.
It should not deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
(7) Israel should within one week, be required to submit a report to the court (ICJ) on all measures taken to give effect to this Order as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
(8) Israel must be required to refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
South Africa said it was making its submission in accordance with Articles 36 (1) and 40 of the Statute of the Court and Article 38 of the Rules of Court.
South Africa alleged that Israel’s actions in Gaza violate the UN’s 1948 Genocide Convention. South Africa’s plea states that Israel’s acts are “genocidal in character” because they are “intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical groups in the Gaza Strip.”
Israel has bombed, shelled and besieged Gaza’s hospitals. Only 13 out of 36 hospitals in Gaza are functional and that too partially. No fully functioning hospitals are left in North Gaza. Gaza’s healthcare system has all but collapsed, with reports of operations, including amputations and caesarean sections, taking place without anaesthetic.
South Africa cited an AP report claiming that Israeli military attacks have “wreaked more destruction than the razing of Syria’s Aleppo between 2012 and 2016, Ukraine’s Mariupol, or proportionally, the Allied bombing of Germany in World War II.”
According to Gaza’s health ministry, at least 21,507 Palestinians in Gaza have been killed and over 55,915 other Palestinians have been wounded. UNICEF reports that over a third of the death toll is children.
The health ministry also said that over 355,000 homes, equivalent to more than 60% of Gaza’s housing have been damaged or destroyed, and the UN states that around 80% of Gaza’s population has been forcibly displaced.
The South African plea recalled that on December 26, Israeli Prime Minister Benjamin Netanyahu stated: “We are not stopping. We are continuing to fight, and we are deepening the fighting in the coming days, and this will be a long battle and it is not close to being over.”
But Israel denies that its conduct in Gaza violates its obligations under the Genocide Convention. It says that the accusation is “not only wholly unfounded as a matter of fact and law, it is morally repugnant and anti-Semitic.”
Justifying its intervention, South Africa said that its application is made against the background that one of its foreign policy objectives is to help attain a durable peace between Israel and Palestine, with two States existing side by side within internationally recognised borders.
In the application, South Africa said that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.”
But it added that: “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 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’), whether as a matter of law or morality.”
“The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.”
South Africa further said that in preparing its application it went by the jurisprudence of this Court and that of other international courts and tribunals, including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.
South Africa charged Israel of torturing Gazans and starving them which it said are “war crimes and crimes against humanity.”
The South African plea drew attention to the fact that acts of genocide inevitably formed part of a “continuum” as enunciated by Raphael Lemkin who had coined the term ‘genocide’.
“For this reason, it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year- long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity,” the plea said.
Further, UN experts have expressed their “profound concern” about “the failure of the international system to mobilise to prevent genocide” against Palestinians, and have called on the “international community” to “do everything it can to immediately end the risk of genocide against the Palestinian people”.
The Committee on the Elimination of Racial Discrimination (‘CERD’), had also called on “all State parties” to the Genocide Convention to “fully respect” their “obligation” to prevent genocide.
The South African plea made it clear that South Africa is not against the existence of Israel but only envisages Israel and the State of Palestine, existing side by side, “within internationally recognised borders, based on those existing on 4 June 1967, prior to the outbreak of the 1967 Arab-Israeli war, in line with all relevant United Nations resolutions and international law.”
According a South Asian diplomat, South Africa hopes to make international relations “value-based” and not just “interest-based” as they are now.
END
