Updates: South Africa v. Israel in the International Court of Justice
Dear Readers,
Today’s edition provides an update on South Africa v. Israel, the case currently pending in the International Court of Justice (ICJ) regarding Israel’s plausible genocide against Palestinians in Gaza. (Check out my two previous editions to learn more about this case here and here).
Before reading today, I ask that you please take at least one action today, and each day, to stop this genocide and the attack on over a million Palestinians trapped in Rafah (see below for more): call your representatives, protest, and engage in other acts of disruption and solidarity. Or, if those actions are not something you will take, you can donate. There are resources for you in the footnote.1
Legal institutions will not stop the terror and violence being exacted upon Palestinians in Gaza and the Occupied Palestinian Territory. (For more on these issues and on the language I am using, please see this previous edition). This is true for many reasons worth discussing, but in this particular moment in time, it is especially true because they are slow and do not have enforcement power.
If we are horrified, enraged, heartbroken, or at the very least concerned about what the US, Israel, and other European nations are doing to our Palestinian siblings, then we must act. We must be persistent, consistent, and steadfast. It will take all of us standing up and speaking out for there to be a ceasefire, a release of all hostages, an end to the siege on Gaza, an end to military occupation, and an end to apartheid.
Update on South Africa v. Israel
South Africa Filed An “Urgent Request For Additional Measures”
On February 12, 2024, South Africa filed an urgent request that the ICJ issue additional Provisional Measures, as allowed under Article 75(1) of the ICJ Rules of Court, in response to the Israeli government’s announcement that civilians must evacuate Rafah, as well its plan to intensify its military assault on Rafah.2
Already, as the request stated, “on Sunday evening, Rafah was subjected to an intense, unprecedented Israeli military assault, with an ongoing threat of yet further intensification of the assault — including by way of an Israeli ground invasion.”
South Africa then highlights these critical facts:
Rafah, normally home to 280,000 Palestinians, currently houses — primarily in makeshift tents — more than half of Gaza's population, estimated at approximately 1.4 million people, approximately half of them children. They fled to Rafah, pursuant to Israeli military evacuation orders, from homes and areas that have been largely destroyed by Israel.' As the International Committee of the Red Cross has made clear, there is "no option" for the evacuation of the Palestinian population in Rafah as "there is nowhere else for the people to go".3
In support, South Africa provides numerous citations, as well as quotes from the United Nations Secretary -General, United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, UNICEF, the Commissioner -General of UN Relief and Works Agency, the UN Office for the Coordination of Humanitarian Affairs, and NGOs operating in Gaza, stating, in sum, that “a large-scale military assault against Rafah ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences.’"4
Consequently, South Africa is asking that the ICJ urgently issue additional provisional measures to “prevent further breach of the rights of Palestinians in Gaza.”5 South Africa stated that the ICJ has the power to do this because it is a “situation of extreme urgency”:
Here there is a situation of extreme urgency affecting an estimated 1.4 million vulnerable Palestinians in Rafah, at least half of them children. They are at serious risk of irreparable harm to their right to be protected from acts of genocide contrary to Articles II and II of the Genocide Convention, by a State which has already been found by this Court to be acting in plausible breach of its obligations under that Convention.
The ICJ has not yet issued a response as of February 15, 2024.
Nicaragua Seeks to Intervene as a Party Against Israel
On February 8, 2024, Nicaragua, “filed in the Registry of the Court an Application for permission to intervene ‘as a party’ in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).” Nicaragua seeks to enter the case as a party against Israel.
While the full petition is not yet available for review (as of February 15, 2024), the ICJ did include a summary of Nicaragua’s arguments:
“Nicaragua considers that the conduct of Israel is in ‘violation of its obligations under the Genocide Convention, including Articles I, III, IV, V and VI, read in conjunction with Article II’”;
Israel “must cease forthwith any acts and measures in breach of those obligations” — meaning the acts encompassed in the aforementioned Articles';
all persons committing, conspiring to commit, inciting, or attempting to commit genocide are “punished by a competent national or international tribunal, as required by Articles I, IV, V and VI”;
Israel and those countries implicated in the above must “collect and conserve” all evidence of genocidal acts against Palestinians in Gaza , “including such members of the group displaced from Gaza”;
Israel “must perform the obligations of reparation in the interest of Palestinian victims, including but not limited to
allowing the safe and dignified return of forcibly displaced and/or abducted Palestinians to their homes,
respect for their full human rights and protection against further discrimination, persecution, and other related acts, and
provide for the reconstruction of what it has destroyed in Gaza”;
Israel “must offer assurances and guarantees of non-repetition of violations of the Genocide Convention.”
Additionally, Nicaragua has issued warnings to Canada, the Netherlands, Germany, and the United Kingdom of its intent to bring them before the ICJ for being complicit in the genocide against Palestinians in Gaza.6
Following Nicaragua’s request to intervene, both South Africa and Israel can submit responses to Nicaragua’s intervention, and, it is my understanding that the ICJ will then render a decision as to whether Nicaragua can join as a party. If Nicaragua may join as a party, they will be able to submit evidence and present a case against Israel as the genocide case continues.
SIDE NOTE: Though Nicaragua and South Africa have both implicated the U.S. as complicit in genocide, the US cannot be brought before the ICJ under the Genocide Convention. When the U.S. signed on to the Genocide Convention, it lodged a reservation against Article IX (full text here7). Because of this reservation, the U.S. cannot be brought before the ICJ under the Genocide Convention, however this means it also cannot intervene as a party in other cases under the Convention.8
Israel’s Report as Part of Provisional measures
As part of the ICJ’s provisional measures, Israel has been ordered to put into effect the measures and then inform both the Court and South Africa as to the efforts it has made to comply with the Court’s orders. (More on that here). South Africa may then file a response to Israel’s report.
Israel must submit its report to the ICJ by February 23, 2024.
Israel’s Alleged Violation of the ICJ’s Provisional Measures
A number of sources are reporting that Israel is in violation of the ICJ’s January 26, 2024, Order:
Yarden Michaeli and Avi Scharf, “Gazans Fled Their Homes. They Have Nowhere to Return to: 'It's Mind-blowing': 1.7 Million Palestinians Escaped Israel's Bombardment of Gaza. Most of Their Homes Have Been Damaged or Destroyed,” Haaretz
Some Countries Are Now Withholding Weapons Or Becoming More Vocal In Response to ICJ Provisional Measures
Belgium
Wallonia, a regional government in Belgium has “decided to temporarily suspend two licenses given to the company, PB Clermont, following last month’s International Court of Justice’s provisional rulings on Israel, as well as the “unacceptable deterioration of the humanitarian situation in the Gaza Strip”. “Belgium's Walloon government suspends ammunition exports to Israel over Gaza war, ICJ rulings,” The Middle East Monitor.
The Netherlands
“A Dutch court on Monday ordered the government to block all exports of F-35 fighter jet parts to Israel over concerns they were being used to violate international law during the war in Gaza.” Stephanie van den Berg, “Dutch court orders halt to export of F-35 jet parts to Israel,” Reuters (Feb. 12, 2024):
Similar stories ran on NPR, the AP, and The Washington Post
Japan
“A major firm in Japan is cutting ties with the Israeli arms manufacturer Elbit Systems, citing the International Court of Justice’s (ICJ) initial ruling last month that Israel’s mass slaughter of Palestinians in Gaza may amount to a genocide.” Sharon Zhang, ”Major Japanese Firm Cuts Ties With Israel Arms Company Elbit After ICJ Ruling,” Truthout
Spain:
Spain had previously announced that it had halted all arms sales to Israel, but a recent report came out finding that “Spain continued to export €987,000 ($1.1 million) worth of ammunition to Israel in November, contradicting statements by the Spanish government claiming it had halted exports of weapons to Tel-Aviv since October.” “Spain did not abide by its arm own sales embargo to Israel amid Gaza war, report shows,” The New Arab.
Italy:
““Since October 7, [2023] we decided not to send any more arms to Israel, so there is no need to discuss this point,” Tajani said, according to a report from Italian news agency ANSA.” Yusra Asif, “Countries halting weapons support to Israel as it continues to pound Gaza,” Al Arabiya News.
However, Former Greek Finance Minister Yanis Varoufakis stated recently that Italy is sending munitions to Israel. EU’s Borrell suggests US stop arming Israel amid fears over Rafah assault,” Al Jazeera
Calls in front of the EU:
European Union foreign policy chief Josep Borrell stated in response to Joe Biden, “Well, if you believe that too many people are being killed, maybe you should provide less arms in order to prevent so many people having been killed. . . If the international community believes that this is a slaughter, that too many people are being killed, maybe we have to think about the provision of arms,” Borrell added. “EU’s Borrell suggests US stop arming Israel amid fears over Rafah assault,” Al Jazeera
Clare Daly of Irish Member of European Parliament has consistently spoken out about EU support of Israel. Here’s one of her speeches.
“Former Greek Finance Minister Yanis Varoufakis said European countries share responsibility for the atrocities being committed in Gaza. ‘We Europeans created the problem … we are playing a vicious role, in its perpetuation,’ Varoufakis told Al Jazeera.” “EU’s Borrell suggests US stop arming Israel amid fears over Rafah assault,” Al Jazeera
I am sure there will be more updates in the days and weeks to come, particularly if Nicaragua moves forward with cases against the Netherlands, Canada, the UK, and Germany.
Useful Commentary on the ICJ Case and Related Issues
This very brief list provides reliable resources that provide a counternarrative to what the mainstream media and other Western institutions are disseminating. Most of these scholars and journalists use a liberation-oriented framing for their analyses and critiques. I hope you take time to read at least one.
Lisa Hajjar "Gaza Is a Crime Scene," Middle East Report 309 (Winter 2023).
Neve Gordon, Marya Hannun "Israel and the Laws of War—A Conversation with Neve Gordon," Middle East Report Online, November 06, 2023.
Mahmoud Mushtaha and Ruwaida Kamal Amer, “‘What use is this court if it can’t stop the war?’ Gazans react to ICJ ruling,” +972 Magazine
Podcast: Makdisi Street, "The ground zero of a liberated world is Palestine" w/ Robin DG Kelley (You can watch on YouTube, or wherever you listen to podcasts)9
Other good sources:
The Intercept and Intercepted (podcast)
Podcast: The Dig (there is an excellent episode with Tareq Baconi about the history and context of Hamas)
A Brief List of People to Follow on the Socials
Noura Erakat, Diana Buttu, Francesca Albanese, Alonso Gurmendi, Mouin Rabani, Yousef Munayyer, Rami Khouri, Daniel Levy, Gideon Levy, Jeremy Scahill, IMEU, al-Haq, Law for Palestine are but a few of the reliable information providers on X and Instagram.
Thank you for reading!
The next edition will be an an explainer of the ICJ’s recent announcement on February 9, 2024, that it will hear oral presentations from 52 states and organizations regarding the United Nations General Assembly’s December 2022 request for an advisory opinion from the ICJ on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
Until then, remain as Dr. King said, “creatively maladjusted,” refusing to normalize or accept cruelty, injustice, hate, and violence.
Respectfully submitted,
Amy
Here are a few of the many resources out there to help you take action:
These organizations provide scripts and email templates for contacting representatives, as well as information about direct actions and protests.
If taking direct action is something you will not do, you can donate to any of these organizations, as well as to UNRWA and numerous Palestinian aid organizations, including on of the Plaintiffs in the case I wrote about last edition — Palestine Children Relief Fund — International.
Additionally, a very dear friend of mine is from Gaza; he now lives abroad. He is raising money to help the remaining members of his family in Gaza and who have lost everything. If you are willing and able, please donate here: https://www.gofundme.com/f/cgaxd-help-my-family-in-gaza.
The request stated
On Friday 9 February 2024, the Office of the Prime Minister of the State of Israel issued the following announcement:
It is impossible to achieve the goal of the war of eliminating Hamas by leaving four Hamas battalions in Rafah. On the contrary, it is clear that intense activity in Rafah requires that civilians evacuate the areas of combat. Therefore, Prime Minister Benjamin Netanyahu has ordered the IDF and the security establishment to submit to the Cabinet a combined plan for evacuating the population and destroying the battalions.
If you are new to Gaza’s geography and Israel’s blockade of Gaza, it is important to understand that the Palestinians in Gaza cannot leave because they are surrounded by walls/fences, snipers and tanks, and the ocean, which is patrolled by Israel. You may have heard some people refer to Gaza as the world’s largest open air prison or as a concentration camp. Right now, there are only two checkpoints allowing entry or exit from Gaza — Rafah Crossing (controlled by Egypt) and Erez Crossing (controlled by Israel). To leave Gaza, Palestinians need permission from Israel or Egypt depending on the crossing, and that permission is often denied, and from what I understand, it is expensive.
It is for these reasons that you will see statements from officials such as, ““They are going to evacuate – where? To the moon? Where are they going to evacuate these people?” Borrell asked.” “EU’s Borrell suggests US stop arming Israel amid fears over Rafah assault,” Al Jazeera
Additionally, many Palestinians, and others in the international community worry that the goal of Israel is to push Palestinians out of Gaza and into Egypt with no right to return, as occurred in 1948 and 1967. (Articles on this here and here).
To learn more, visit Al Jazeera or B’Tselem. Or listen to this edition of Intercepted.
Please resist giving credence to the simplistic and racist trope that no one wants the Palestinians in their country because there is something inherently bad about or wrong with the Palestinians. This is a specious claim and must be challenged.
I am not an expert in ICJ procedure or rules, so I rely entirely on South Africa’s presentation of the interpretation of the law in its request. South Africa’s request is based on ICJ Article 75(1), that allows the ICJ, on its own without a formal request, requiring “the indication of provisional measures which ought to be taken or complied with by any or all of the parties.” Based on South Africa’s request, it appears that the ICJ has previously exercised this power “in a situation of extreme urgency” in a case called LaGrand (Germany v. United States of America). This rule and precedent form the basis for South Africa’s request.
The reservation is as follows:
(1) That with reference to article IX of the Convention, be fore any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
(2) That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
This podcast provides a fascinating discussion about what is and is not codified in international law and why, connecting colonial projects and numerous liberation struggles across the world) (Another episode: Makdisi Street, “Robin DG Kelley on black liberation and the Palestine Question”).