Beyond a plausible risk of genocide: Report #2 on South Africa v. Israel and Anatomy of a Genocide
This is the second in a series of blog posts reporting on the proceedings of South Africa v. Israel in the International Court of Justice (“ICJ”).[1]
I. Introduction
Israel and its allies are committing the jus cogens crime of genocide. This post will review the following: (i) the status of the case South Africa v. Israel since my last blog post on February 18, 2024, particularly in regard to whether Israel followed the ICJ’s substantive orders (it did not); and (ii) UN Special Rapporteur, Francesa Albanese’s recent March 25, 2024 Report Anatomy of a Genocide. This review is meant to demonstrate that genocide is occurring against Palestinians.
A. Refresher on the jus cogens crime of genocide
The term “genocide” was coined by Polish and Jewish lawyer Raphael Lemkin; he lived through and was targeted by the Nazi systems of oppression, occupation, and apartheid, that together culminated into a process of genocide.[2] Genocide was not a crime until the legal world first recognized it through the actions of Nazis.
Genocide—like a crime against humanity, slavery and human trafficking—is a crime of such severity that is deemed a peremptory jus cogens norm that is prohibited even if a state in not a party to the Genocide Convention.
Genocide occurs when any of the following six acts are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group: (a) killing members of the group; (b) causing serious bodily 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; (d) imposing measures intended to prevent births in the group; and or, (e) forcibly transferring children of the group to another group.Genocide is a process of erasure and does not require killing to have occurred.
Additionally, genocide is not justified under any circumstance, including self-defense, according to world-renowned genocide expert William Schabas.[3] A simple reading of the Genocide Convention and noting the lack of a “provision of derogation” also affirms that.[4] Even if genocide was justified by self-defense (which it is not), such a notion—as recognized by the ICJ in 2004 in its advisory opinion on the legal consequences of Israel’s construction of an apartheid wall in Palestinian territory—is an impossibility for an occupying power (Israel) to assert self-defense against a people whose territory it occupies.[5]
Finally, genocide has been the policy of Israel before it became a state in 1948; before then (“the Nakba”) it was a stateless settler-colonial project. U.N. Special Rapporteur Francesca Albanese explains this genocidal policy succinctly:
“Genocidal intent and practices are integral to the ideology and processes of settler-colonialism, as the experience of Native Americans in the U.S., First Nations in Australia or Herero in Namibia illustrates. As settler-colonialism aims to acquire Indigenous land and resources, the mere existence of Indigenous peoples poses an existential threat to the settler society. Destruction and replacement of Indigenous people become therefore ‘unavoidable’ and take place through different methods depending on the perceived threat to the settler group. These include removal (forcible transfer, ethnic cleansing), movement restrictions (segregation, largescale carceralization), mass killings (murder, disease, starvation), assimilation (cultural erasure, child removal) and birth prevention. Settler-colonialism is a dynamic, structural process and a confluence of acts aimed at displacing and eliminating Indigenous groups, of which genocidal extermination/annihilation represents the peak.
Historical patterns of genocide demonstrate that persecution, discrimination and other
preliminary stages prepare the ground for the annihilation stage of genocide. In Palestine, displacing and erasing the Indigenous Arab presence has been an inevitable part of the forming of Israel as a ‘Jewish state’. In 1940, Joseph Weitz, head of the Jewish Colonization Department stated: ‘there is no room for both peoples, together in this country. The only solution is Palestine without Arabs. And there is no other way but to transfer all of them: not one village, not one tribe should be left.’ Practices leading to the mass ethnic cleansing of Palestine’s non-Jewish population occurred in 1947–1949, and again in 1967, when Israel occupied the West Bank, east Jerusalem and the Gaza Strip with mass displacement of hundreds of thousands, killings, destruction of villages and towns, looting and the denial of the right to return of expelled Palestinians.”[6]
With this refresher on what genocide means, let us examine the latest in South Africa v. Israel.
II. Status of South Africa v. Israel
A. Israel failed to comply with the January 26 ICJ Order of Provisional Measures
In recap to its January 26 order, the ICJ ordered six provisional measures after finding that Palestinians are at a plausible risk of genocide.[7] The ICJ ordered Israel (1) to prevent the commission of all acts of genocide prohibited in Article II of the Genocide convention; (2) to ensure its military does not commit any of those acts; (3) to take all measures possible to prevent and punish direct and public incitement of genocide against Palestinians in the Gaza Strip; (4) that it must enable basic and humanitarian services to reach Palestinians in Gaza Strip; (5) that it must take measures to prevent destruction of evidence, and (6) that it “must 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.”[8]
Israel submitted the report on time, but was not released to the public.[9] Notwithstanding what claims were made in that report, Israel did not follow the provisional measures ordered. Most notably, between January 26 and February 26, Israel killed at least 3,500 Palestinians and injured at least 5,200 Palestinians and allowed 40% less humanitarian aid into Gaza.[10] That is but a fraction of what occurred, and now over 35,000 Palestinians have been killed since October 7, 2023. This is just in the Gaza Strip.
B. The ICJ ordered additional provisional measures on March 28, 2024
On March 28, 2024, the ICJ ordered additional provisional measures. This came after South Africa requested additional and modified provisional measures on February 12 and March 6, 2024.[11] South Africa requested this modification because the circumstances in the Gaza Strip had changed such that the Court is permitted by Statute to order additional measures.
South Africa noted in particular that by March 6, 2024, Palestinians were no longer merely at risk of starvation, but were now dying of starvation.[12] South Africa further explained that this was a direct result of Israel not lifting its blockade on Gaza, and due to “Israel’s deliberate attempts to cripple” UNRWA.[13] South Africa cited the UN Special Rapporteur on the Right to Food’s warning that famine may already be occurring. South Africa also cited the “Flour Massacre,” where Israel targeted Palestinian civilians collecting humanitarian aid, and killed 118 Palestinians and injured 760.[14]
On March 28, 2024, the ICJ did order additional measures, but not all those South Africa requested. The Court made key acknowledgements in the context of genocide. It recalled that in its order of January 26 it concluded that Palestinians in the Gaza Strip “had ‘no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”[15] The Court further recalled that in a letter on February 16, 2024, it noted and acknowledged the UN Secretary-General’s warning that “developments in the Gaza Strip, and in Rafah in particular, would exponentially create what is already a humanitarian nightmare with untold regional consequences.”[16] The Court noted that “since then, the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular view of the prolonged and widespread deprivation of food and other basic necessities to which Palestinians in the Gaza strip have been subjected.”[17]
The Court also acknowledged that since January 26, 2024, “Israel’s military operation has reportedly led to over 6,600 additional fatalities and almost 11,000 additional injuries among Palestinians in the Gaza Strip” as of March 25, 2024.[18]
The additional measures it ordered on March 28 to the initial six were as follows:[19]
1. Israel is to take “all necessary and effective measures” to fully cooperate with the UN and ensure “unhindered” humanitarian aid is provided.
2. Israel is to ensure immediately that its military does not violate the Genocide Convention against Palestinians, which includes prevention of delivery of humanitarian aid.
3. The Court “reaffirms” the measures indicated on January 26, 2024.
4. The Court ordered Israel to submit a report within one month of March 28, 2024.
These additional measures ordered by the ICJ demonstrate that genocide is beyond plausibly occurring. Unfortunately, this Court order does not and cannot stop the genocide. Israel has clearly ignored the Court’s orders. The UN Security Council (UNSC) is able to pass adequate coercive measures to enforce the ICJ’s order, but is being stopped from doing so by the US’s veto power.
That aside, I agree with UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Francesca Albanese, that genocide is occurring.
III. Anatomy of Genocide
Albanese released a 25-page report titled Anatomy of a Genocide on March 25, 2024. I urge the reader to read the report here. Her summary speaks for itself, excerpted below.
“After five months of military operations, Israel has destroyed Gaza. Over 30,000
Palestinians have been killed, including more than 13,000 children. Over 12,000 are
presumed dead and 71,000 injured, many with life-changing mutilations. Seventy percent of residential areas have been destroyed. Eighty percent of the whole population has been
forcibly displaced. Thousands of families have lost loved ones or have been wiped out. Many could not bury and mourn their relatives, forced instead to leave their bodies decomposing in homes, in the street or under the rubble. Thousands have been detained and systematically subjected to inhuman and degrading treatment. The incalculable collective trauma will be experienced for generations to come.
By analysing the patterns of violence and Israel’s policies in its onslaught on Gaza,
this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met. One of the key findings is that Israel’s executive and military leadership and soldiers have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people.”[20]
The facts speak for themselves. This report only contemplates the Gaza Strip; it does not contemplate the countless war crimes and acts of genocide Israel has committed in the West Bank and East Jerusalem against Palestinians.
Israel has “arrested” over 7,000 Palestinians—including 250 children—since October 7, 2024 in the West Bank alone, often without charge or placed in arbitrary administrative detention.[21] This seems like the war crime of hostage taking under international humanitarian law. Armed Israeli [illegal] settlers are taking up arms, raiding Palestinian villages in the West Bank, and killing and injuring Palestinians in the process.[22]
Israel and its civilian population are committing genocide against Palestinians.
IV. Conclusion
In conclusion, Israel and its allies are committing, complicit in, and/or aiding and abetting genocide. How will those responsible, and those who participate in societally normalizing this genocide be remembered in history for their actions and inactions? Raphael Lemkin rang the bell and coined genocide; the world listened when it was too late.
Further, the legal community must remember that complicity in, incitement of, and the commission of genocide are prohibited under international law and domestically under 18 U.S.C. § 1091. Is the authorization of military aid; the authorization of weapons sales; the journalistic circulation of false and dehumanizing information about Palestinians; and the profiting from weapons sold to a state that is recognized by the highest court of the world, the ICJ, as plausibly committing genocide, amount to such complicity in genocide? I think it does.
Finally, what is deeply troubling to the fundamentals of human dignity is that South Africa and many other states are asking for Israel to stop its aggression and genocide against Palestinians. The UNSC has the primary responsibility to maintain international peace and security, and as noted by the ICJ, the UNSC can require enforcement of coercive action to maintain such.[23] The U.S. keeps vetoing UNSC resolutions that would have adequate coercive effect to stop Israel’s commission of genocide.
We must ask ourselves, is our international legal system working as it was intended when one country can veto the UNSC’s ability to maintain international peace and security, particularly its ability to order adequate coercive measures to end a genocide?
The views and opinions express in this blog post are solely those of the author and do not necessarily reflect the official policy or position of Mississippi College, Mississippi College School of Law, or the Law Review. The author is solely responsible for the content of this post. The information provided in this post is for general informational purposes only and should not be construed as legal advice.
[1] This case is relevant to the U.S. legal community because the U.S. has provided material aid to Israel as it has committed the acts alleged in this proceeding. For a brief breakdown on what the ICJ is, see this MC Law Review blog post by Professor Franklin Rosenblatt here.
[2] For a detailed exploration of Lemkin’s story, see Philippe Sands, East West Street (2016). Philippe Sands is an international lawyer who recently testified in support of Palestine in the ICJ proceeding, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
[3] Anatomy of Genocide, A/HRC/55/73 (25 March 2024), at para. 15 (citing William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: 2009), p.395; A/CN.4/L.960/Add.1 (2022), conclusions 3, 17.).
[4] See the ICJ’s discussion on how Israel cannot rely on the right of self-defense or on a state of necessity to preclude wrongfulness of the construction of a wall. The court did not reach the question of whether self-defense or necessity can preclude the wrongfulness of genocide, but it can be inferred (at minimum) from that discussion that it is unlikely the ICJ would find that genocide is a justified means of self-defense since it found Irael unable to use that justification for an illegal wall. The See Advisory Opinion of 9 July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), at para. 139-42, https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-EN.pdf.
[5] The ICJ held that an occupying power cannot assert the right to use force in self-defense under Article 51 of the UN Charter against a territory it occupies, referring to Israel’s Occupying Power status in the West Bank. Advisory Opinion of 9 July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), at para. 139-142, https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-EN.pdf. It should be noted too, that although Israel is not a party to the Fourth Hague Convention of 1907 to which the Hague Regulations were annexed, the International Military Tribunal for Nuremburg made those laws customary. The ICJ considers the provisions of the Hague Regulations as customary law, and applicable to parties in an Occupier-Occupied relationship. See id. at para. 89.
[6] Anatomy of a Genocide, A/HRC/55/73, (25 March 2024), para. 9-11 (emphasis added).
[7] See Sarina Larson, A Plausible Risk of Genocide: Report #1 on South Africa v. Israel, MC Law Review Blog (Feb. 18, 2024), https://mclawreview.org/2024/02/18/a-plausible-risk-of-genocide-report-1-on-south-africa-v-israel/.
[8] Request for the Indication of Provisional Measures: Order (South Africa v. Israel) (26 January 2023), at 23, para. 78-82, https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf. (last accessed 17 April 2024).
[9] Israel reports to ICJ in The Hague on actions taken to comply with court orders on Gaza, Times of Israel (Feb. 26, 2024), https://www.timesofisrael.com/israel-reports-to-icj-on-actions-taken-to-comply-with-court-orders-on-gaza/; there is also no copy of the report on the ICJ case page for South Africa v. Israel, linked here: https://www.icj-cij.org/case/192.
[10] See One Month after the ICJ Order, Israel Continues its 142 Day-Long Genocide on Gaza, Al Mezen Canter for Human Rights (Feb. 26, 2024), https://www.mezan.org/en/post/46388.; See also Has Israel complied with ICJ order in Gaza genocide case?, AlJazeera (Feb. 26, 2024), https://www.aljazeera.com/news/2024/2/26/has-israel-complied-with-icj-order-in-gaza-genocide-case.
[11] Order: Request for the Modification of the Order of 27 January 2024 Indicating Provisional Measures (South Africa v. Israel) (28 March 2024), at 3, para. 6-9, https://www.icj-cij.org/sites/default/files/case-related/192/192-20240328-ord-01-00-en.pdf (last accessed 22 April 2024) (hereinafter referred to as “Order of 28 March 2024”).
[12] Request by South Africa for the indication of provisional measures and modification of the Court’s prior provisional measures decisions (South Africa v. Israel), para. 1, 7 (6 March 2024), https://www.icj-cij.org/sites/default/files/case-related/192/192-20240306-wri-01-00-en.pdf (last accessed 22 April 2024).
[13] Id. at para 8.
[14] Id. at para. 10-11.
[15] Order of 28 March 2024, para. 18.
[16] Id. at para. 18.
[17] Id.
[18] Id. at para. 39.
[19] Id. at para. 45-47.
[20] Anatomy of a Genocide, A/HRC/55/73, (25 March 2024) (emphasis added). A 12-minute summary delivered by Albanese can be viewed here: https://www.youtube.com/watch?v=3XrwNGWF108.
[21] ‘Systematic torture’: To be Palestinian in an Israeli prison, AlJazeera (Feb. 18, 2024), https://www.aljazeera.com/news/2024/2/18/systematic-torture-to-be-palestinian-in-an-israeli-prison.
[22] Israeli forces, armed settlers kill three Palestinians in rising West Bank violence, AlJazeera (April 15, 2024), https://www.reuters.com/world/middle-east/israeli-forces-kill-palestinian-teen-west-bank-military-raid-2024-04-15/.
[23] Advisory Opinion of 9 July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), at para. 26, https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-EN.pdf.
