Statement of the Internationalist Socialist League (RCIT Section in Israel / Occupied Palestine), 29 January 2024
1. On January 11 the legal team of South Africa presented the accusation of Israel as a state that commit genocide and on January 12 presented the defense of Israel against the charge. This was the first time that charges against Western imperialist states were heard in the court of Justice in Hague.
2. The legal team of South Africa focused on the mass destruction, displacement and death in Gaza. They also showed videos of Israeli soldiers who “film[ed] themselves joyfully dancing and chanting no Palestinian civilian is innocent.”
3. South African Justice Minister Ronald Lamola said: “Violence and destruction in Palestine did not begin on the 7th of Oct. 2023, the Palestinians have experienced systematic oppression and violence for the last 76 years.” He added: “No armed attack on a state territory, no matter how serious, even an attack involving atrocity crimes can provide any justification for or defense to breaches to the [Genocide] Convention.”
4. Irish lawyer Blinne Ni Ghralaigh, representing South Africa, also pointed to the bombing of hospitals, attacks on civilians, and lack of sufficient aid being allowed in to help Palestinians. Military actions in Gaza have wiped out generations, pointing to the creation of a new acronym: WCNSF, which stands for wounded child, no surviving family,
5. Tembeka Ngcukaitobi, also representing South Africa, showed the intention of Israel to commit genocide. He referred to genocidal statements, including some by Israeli Prime Minister Benjamin Netanyahu. “Israel’s special genocidal intent is rooted in the belief that in fact the ‘enemy’ is not just the military wing of Hamas, or indeed Hamas generally, but is embedded in the fabric of Palestinian life in Gaza.”
6. South Africa filed nine provisional measures – injunctions to the court.
“(1) The State of Israel shall immediately suspend its military operations in and against Gaza.
(2) The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organizations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to [in] point (1) above.
(3) The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
(4) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
(a) killing members of the 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.
(5) The State of Israel shall, pursuant to point (4) (c) above, in relation to Palestinians, 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.
(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
(7) The State of Israel shall 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; to that end, the State of Israel shall not act to 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.
(8) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, 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.
(9) The State of Israel shall 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.”
10. Provisional measures, provided for under Art. 41 of the ICJ Statute, are basically an injunction. They are emergency decisions made by the ICJ judges before going into the merits of a case – which often takes years. Provisional measures can be indicated in light of the nature of the rights at issue (genocide) and the ongoing, extreme and irreparable harm likely to be suffered if action is not taken. Importantly, the legal threshold for provisional measures is that the violation of the rights for which protection is sought are ‘at least plausible’. A higher threshold will be applied on the merits. A ceasefire decision by the ICJ on provisional measures also has a precedent. In 2022, the ICJ ordered Russia in the Ukraine v Russian Federation case that it ‘shall immediately suspend military operations … in the territory of Ukraine.’
11. The arguments of the Zionists were:
a) Lior Haiat, spokesperson of the Israeli Ministry of Foreign Affairs previously claimed that South Africa was acting as “the legal arm of the Hamas terrorist organization.” Zane Dangor, director general of South Africa’s Ministry of International Relations, denied that claim.
b) The Zionist legal team argued: The court does not have jurisdiction because there were no negotiations between South Africa and Israel. However, on Thursday, John Dugard, a South African professor of international law, told the ICJ that they have jurisdiction over the case under Article 9, which does not require states to negotiate before pursuing a case in court.
c) That Israel has not violated international law during its military campaign in Gaza. “The use of the term ‘genocide’ in relation to Israel’s lawful targeting of Hamas, Islamic Jihad and other terrorist organizations in Gaza empties the term of meaning. Israel is at war with Hamas, not with the people of Gaza. It is committed to conducting its operations in accordance with international law and wishes no harm to Palestinian civilians anywhere.“
d) Israel requested the Court to
(1) “reject the request for the indication of provisional measures submitted by South Africa; and
(2) remove the case from the General List”.
Of the 17 judges of the ICJ only the Judge of Uganda opposed all the injunction of the court and the Israeli judge Aharon Barak opposed two of the injunctions.
12. Before delivering the injunctions the court agreed that the ongoing, extreme and irreparable harm for the Palestinians who likely suffered from genocide if action is not taken.
The court said: “Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza. The Court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.”
It also said: “The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced (see United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel – reported impact, Day 109 (24 Jan. 2024)).
The Court takes note, in this regard, of the statement made by the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr Martin Griffiths, on 5 January 2024:
“Gaza has become a place of death and despair. (…) Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.
For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.”
Following a mission to North Gaza, the World Health Organization (WHO) reported that, as of 21 December 2023:
“An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident.”
The Court further notes the statement issued by the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Mr Philippe Lazzarini, on 13 January 2024:
“It’s been 100 days since the devastating war started, killing and displacing people in Gaza, following the horrific attacks that Hamas and other groups carried out against people in Israel. It’s been 100 days of ordeal and anxiety for hostages and their families.“
13. The court has Jurisdiction: South Africa and Israel are parties to the Genocide Convention. Israel deposited its instrument of ratification on 9 March 1950 and South Africa deposited its instrument of accession on 10 December 1998. Neither of the Parties has entered a reservation to Article IX or any other provision of the Convention.
14. In spite of the above the court should have issued the injunction ordering the Zionist army to end the war. In fact, the court issued weaker injunctions:
“(1) By fifteen votes to two,
The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to 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;
(2) By fifteen votes to two,
The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;
(3) By sixteen votes to one,
The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
(4) By sixteen votes to one,
The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;
(5) By fifteen votes to two,
The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;
(6) By fifteen votes to two,
The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.”
15. The Majority of at least 15 Judges were for the injunctions and this is against Israel. However, the court did not issue an injunction ordering Israel to end the war and this is against all the facts showing a genocide of the Palestinians.
16. To sum up, the International Court of Justice ruled Friday that South Africa has standing to continue its case against Israel over charges of genocide and that a significant risk of genocide against the Palestinian population requires the Court to issue a preliminary order barring Israel from further such acts, namely:
(a) killing members of the group; (b) causing serious bodily or mental harm to 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.
The Court gave Israel one month to report back on its compliance with the Geneva Convention but stopped short of fulfilling South Africa’s demand for an immediate cease fire. However, it would not be possible for Israel to continue waging its war the way it is while simultaneously complying with the Court order.
17. The orders were accepted by an overwhelming majority of 15-16 judges. Judge Aharon Barak joined the opinion of the majority of the judges in two orders: the order ordering Israel to bring humanitarian aid to Gaza and the order ordering Israel to punish elected officials for their statements regarding genocide. The Ugandan judge remained in the sole minority opinion.
18. At the opening of the debate, the president of the court mentioned the Hamas attack that killed over 1,200 Israeli civilians and kidnapped about 240. She also said that the immediate release of all the abductees should be demanded, but she did not order it. She noted that the civilian population in Gaza is very vulnerable as a result of the attacks of Israel.
19. She also said that there is sufficient basis at this stage to state that there is a fear of violating the rights of the residents of Gaza. There are widespread attacks in Gaza, houses have been destroyed without the population having anywhere to escape, the deaths are widespread. The conditions for temporary orders are met.
20. This is a blow to Israel’s global standing. It has a symbolic value as it found that the Palestinians of Gaza are a protected group under the provisions of the Genocide Convention and that South Africa had proven that there is a reasonable basis to litigate whether Israel’s military onslaught constitutes a genocide.
21. But it also represents a win for Israel. The bottom line is that the court has ruled that Israel should stand trial on charges of genocide in Gaza, but the judges carved out a significant loophole that Israel can exploit to continue its war against Gaza.
22. Yet the demand that Israel will submit within a month a report on the actions it has taken for the security of the civilians in Gaza contradicts its desire to continue its genocidal war.
21. It is unlikely that Israel will respect the injunction and it expects the American imperialists to veto any resolution to enforce the injunctions.
22. Thus, the court reflected the pressure of the masses on one hand and of the imperialists on the other hand and came with a weak position. However, it is a diplomatic and political victory for the Palestinians and for Hamas and it is likely to push for much more actions to isolate Israel and the U.S.
23 For this reason, the ISL considers the court decision as a relative victory that deserves critical support and the continuation of mobilizing the masses against Israel. We raise the demands: End the war now; exchange all the captive Israelis with all the Palestinian political prisoners; Arab states – stop talking; begin real acting to aid the war of the Palestinians against the Zionist monster; for a democratic and free Palestine from the river to the sea!
We also raise the demand “Palestine red and free from the river to the sea”. It means the return of the Palestinian refugees. A Palestine with a majority of Palestinians and a minority of Israeli Jews with equal socio-political rights but not the right to a state. Thus, two states is no solution. We are for a state ruled by the working class and the Fellahin.
24. Israel has already continued with the genocide showing the disrespect for the ICJ. Israeli Prime Minister Benjamin Netanyahu has vowed that no one will stop the war against Gaza, including The Hague. The court’s decision not to order an immediate cessation of the military assault is already being emphasized in Jerusalem.
25. The orders of the ICJ that Israel does not respect will provoke a further growth of the mass solidarity movement for Palestine in the entire world with the demand Palestine free from the river to the sea!
26. The only ones who fully supported with no criticism the decision of the ICJ were the leaders of Hadash.
Hadash MK Ofer Cassif posted to X saying like a true Zionist patriot: “The statement of the International Court of Justice casts a heavy moral stain on the Israeli government. As I have argued several times: being moral is not only an imperative in itself but also our interest as a country and as a society,” and “The time has come to change direction, for the sake of both nations.”
Hadash MK Ayman Odeh also posted to X saying: “There is no solution other than the establishment of a Palestinian state within the 1967 borders alongside Israel. Only in this way can we achieve peace, security, and prosperity for both nations.”
This put Hadash and Biden in the same wagon as to the false political solution, at a time when the masses are saying: “Palestine from the river to the sea will be free!”
Down with the Zionist apartheid state!
For Palestine red and free from the river to the sea!