ICJ decision looms: Will South Africa win its genocide case against Israel?

The first lawyer to win an ICJ case based on the Genocide Convention in 1993 calls South Africa's case historical déjà vu, with grave consequences for Israel.

International Court of Justice ICJ
(File photo: International Court of Justice)
“Israel lied through their teeth," declared Francis Boyle when asked about Israel’s defense in South Africa’s genocide case against the occupation on January 12. Filed on December 29, nearly two months after the war commenced, Israel’s self-defense proclamation, which initially gained a lot of support from its allies, was put on display at the International Court of Justice (ICJ), with over 25,000 civilians in Gaza killed since October 7 and over 60,000 injured.اضافة اعلان

Boyle, a seasoned international human rights lawyer with a track record at the ICJ having secured protection for Bosnia and Herzegovina against Yugoslavia under the Genocide Convention in 1993, is now closely following South Africa's case against Israel, seeing history repeat itself. It should be noted that he was the first lawyer to ever win anything from the ICJ based on the Genocide Convention in 1993.

Significant consequences for Israel
The imminent interim ruling on Gaza’s future, set for 3 p.m. local time Friday, holds significant consequences for Israel. If ruled in South Africa’s favor, it could provide much relief on the international stage and lead to the characterization of the war as a genocide, a term already used by many around the world. While Boyle anticipates a victory for South Africa, the day-after scenarios, including what happens if it does not win, also come into question. Boyle envisions potential orders for a Gaza ceasefire and increased humanitarian aid if the ruling favors South Africa.

Israel’s longstanding pattern of lies
In an interview with Jordan News, Boyle, an ardent supporter of Palestine, has observed Israel’s defense play out before. As he took out his notes, he went through its hearing point by point, emphasizing that Israel is meticulous in its lies, pointing to a longstanding pattern and a secure relationship with its allies with unabated support. US President Joe Biden has stated since October 7 that “Israel has the right to defend itself.”

“Since 2009, the ICC has not lifted one finger to help the Palestinians. Not one… after Operation Cast Lead, and indeed if they had started indicting Israeli officials in 2009 for war crimes, crimes against humanity, and genocide, perhaps all of this could have been avoided."

However, as the war continued with tens of thousands of civilian casualties, the US’s role took on with its counterpart a good cop, bad cop routine, to show its disapproval, one that Boyle contends is “just a façade; they are in cahoots with one another.” He asserts, "They all lie all the time about the facts and the law; it is that simple.”

A second Nakba on Palestinians
He contends that “the Zionists are inflicting a second Nakba on the Palestinians, that is clearly what is going on here, not only are they going to try to ethnically cleanse the people of Gaza into Sinai desert, but if they get away with that, they are going to try to ethnically cleanse the Palestinians living on the West Bank into Jordan.”

While the world anxiously awaits the interim hearing, Boyle said, Israel has already lost much of online global public opinion. The events of October 7 are being put up against the 75-plus-year occupation, and Israel’s defense is coming under scrutiny. If it is doing everything it can to protect civilian casualties and "eliminate Hamas," then why are over 70 percent of those killed in Gaza since October 7 women and children?

 “The death and destruction and the genocide being inflicted on the Palestinians are on social media,” Boyle said, adding that “If the order comes down, in favor of the Republic of South Africa, it could have very serious consequences for Israel.” He highlighted that right now, as this is being written, “major players,” who are trying to protect Israel.

However, as the war continues into its fourth month, another reality comes into play: Could all of this have been avoided? Boyle says yes. Referring to Israel’s war on Gaza in 2008, called "Operation Cast Lead" by the occupation and "Battle Al-Furqan" by Hamas, which resulted in over 1,400 Palestinians killed, 100,000 displaced, and 46,000 homes destroyed, he advised Palestinian President Mahmoud Abbas to accept the jurisdiction of the International Criminal Court (ICC), which is different from the ICJ as it prosecutes individuals rather than countries.

“Perhaps all of this could have been avoided”
“Since 2009, the ICC has not lifted one finger to help the Palestinians. Not one… after Operation Cast Lead, and indeed if they had started indicting Israeli officials in 2009 for war crimes, crimes against humanity, and genocide, perhaps all of this could have been avoided."

Currently, Mexico and Chile have urged the ICC to investigate possible war crimes in Gaza since October 7, according to the Middle East Monitor. They invoked Articles 13(a) and 14 of the ICC’s Statute as the foundation for the referral. These articles allow a state party to bring attention to a situation where it appears that one or more crimes falling within the Court’s jurisdiction have occurred, urging the Prosecutor to investigate and assess whether individuals should be charged for such offenses. The ICC has also opened a portal where people, even those not in Gaza, can submit evidence to the court. This initiative follows a complaint filed by 100 Chilean lawyers before the ICC against Israeli Prime Minister Benjamin Netanyahu. They accuse him of committing crimes against humanity, genocide, and war crimes in Gaza.

However, if justice is actually on the horizon from the ICC, Boyle is hesitant, adding that Operation Cast Lead in 2008 and the case not going forward in 2009 prove that the ICC has “Palestinian blood on their hands.”

What if South Africa does not win?
Now, all eyes are on the ICJ. I asked Boyle, who is optimistic about South Africa winning its case, to consider the 'what if' scenario – what if South Africa does not win, what happens next?

He explained: If the order comes down against Israel, it will be transmitted to the Security Council for enforcement. Considering the likely American veto, the next step would be taking it to the UN General Assembly (UNGA), under the terms of the Uniting for Peace resolution.

In the UNGA, serious consequences for Israel could be adopted. First, they might suspend Israel from participating in General Assembly activities, similar to what happened to the criminal apartheid regime in South Africa. Boyle asserts that Israel is an apartheid state, drawing parallels to his adversary, the genocidal Yugoslavia.

Secondly, the UNGA can establish an International Criminal Tribunal for Israel under Article 22 of the UN Charter. Economic sanctions against Israel could be recommended, and Palestine could be admitted as a full-fledged UN member state, given the existing votes. Boyle emphasizes the historical fact that no UN member state has ever been destroyed, although some, like Yugoslavia, have collapsed.

Boyle raises concerns about Israel's intentions to destroy Palestine and the Palestinians, citing Netanyahu's admission. He believes that gaining UN membership will make it more challenging for the US to support destructive actions against Palestine, drawing on his past efforts to prevent the collapse of Bosnia as a UN member state. He added that despite facing problems, Bosnia remains a UN member state today.

A waiting game
For now, it is a waiting game. When asked what comes next, Boyle said, “We will just have to see.”

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