Israel, South Africa and the Power of Genocide
By Yusra Suedi
Published on 23 January 2024
The International Court of Justice (ICJ, the Court) has increasingly been the theatre for accusations of the crime of genocide. The latest instalment is South Africa’s institution of proceedings against Israel for committing genocide in the Gaza Strip.
Genocide carries significant weight in international criminal law as ‘one of the worst crimes known to humankind’, as the ICTY said in The Prosecutor v. Radislav Krstić (para. 134). Looking mainly at the South Africa v. Israel proceedings, I offer some reflections on the ways in which the gravity associated with genocide has given it a certain power that has both helped and hindered the pursuit of accountability for the crime of genocide through international dispute settlement before the ICJ.
The power of genocide has helped state applicants pursue accountability for crimes of genocide in at least two ways. First, it has enabled South Africa to sue Israel – despite being on the other side of the world and not directly affected by Israel’s acts. From a legal perspective, the power of genocide has armed any state party to the Genocide Convention with the right to uphold obligations erga omnes partes by litigating before the Court. The Court confirmed in The Gambia v Myanmar, which also concerns genocide, that such non-specially affected states have standing (para. 112). The Court emphasised in an early advisory opinion that this is because of the power of genocide: ‘In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention.’ (p. 12) This opens the door to numerous possibilities in the world of inter-state litigation. While I have discussed the promises and perils of this elsewhere, it certainly allows for greater enforcement of the obligation to prevent and punish genocide through judicial channels.
Second, the power of genocide can be seen through its ability to bring even the most adverse states to the Peace Palace, thereby enhancing the judicial process. Israel’s appearance to defend itself in the oral hearings on provisional measures was a surprise, not least because there have been instances of non-appearance before international courts and tribunals. Russia did not appear in the hearings on provisional measures in Allegations of Genocide against Ukraine, for example. Israel’s ally, the United States of America, is known for its non-appearance in the famous Nicaragua case. There was reason to believe that Israel would not participate in the oral hearings on provisional measures against South Africa: Israel has stated that the UN is biased towards it. Despite this, it announced its intention to fight the case ‘to dispel South Africa’s absurd blood libel’ (at 3:49). This would suggest that an accusation of genocide is so serious that it requires defence.
However, the power of genocide was historically underscored through its key subjective characteristic of genocidal intent, made clear in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute of the International Criminal Court. Not only must a state commit acts, such as, inter alia, killing members of a group, causing serious bodily or mental harm, or deliberately inflicting conditions of life to bring about physical destruction. It must be proven that such acts were committed with intent to destroy, in whole or in part, that group. The requirement of intent, however, creates barriers in at least two ways.
First, this power could already translate into a barrier for the applicant in the courtroom at the provisional measures stage. In theory, it should only be established that genocide is plausible. The plausibility criterion in the five-pronged test to render a provisional measures order includes an assessment of not only the plausibility of the applicant’s (South Africa’s) rights, but of the plausibility of the breach of South Africa’s rights by Israel (Gambia v. Myanmar provisional measures order para. 43; Ukraine v. Russia provisional measures order, para. 50). The Court has not clearly spelled out how plausibility is assessed in such matters, and certain judges have expressed concern over its vagueness (Activities in the Border area case, Koroma paras. 7-12) and tried to clarify its meaning (Dugard, para. 5; Greenwood, para. 5) – with Cançado Trindade even arguing that vulnerability should be applied instead of plausibility in disputes related to human rights, such as this one (para. 36). The applicant’s job is therefore already rendered potentially more challenging: Due to this uncertainty, it is strategically safer to provide as much evidence as possible to make the claim undisputable – all in a shorter time span and with potentially limited evidence at that stage. While this is due to the requirements of plausibility making it ‘impossible for the Court to avoid some consideration of the merits in a request for provisional measures’ (Dugard, paras. 2-3), the challenge is exacerbated by the high intent threshold that has historically characterised the power of genocide.
A second way that the power of genocide creates obstacles in judicial proceedings is the assessment of its existence at the merits stage. Here, genocidal intent must be the only reasonable inference that can be drawn from the pattern of conduct brought forth in the evidence (Croatia v. Serbia, para. 417). We are not there yet in South Africa v. Israel, but the Court’s precedent in the Bosnian and Croatian genocide cases indicates that this will be a challenge. So, is the power of genocide, in fact, its weakness in the face of international justice?
While the nature of genocide has both helped and hindered its prevention and punishment through ICJ litigation, the Court might have the opportunity to underscore the power of genocide through its orders at the provisional measures stage. In South Africa v. Israel, South Africa’s main request is for the Court to order Israel to suspend its military operations (para. 144). If there is even plausibility that genocidal acts are occurring, a way to reinforce the power of genocide is to grant this request. Such an order would make a much-needed statement that even the plausibility of genocide is taken very seriously, and that international institutions will go to all ends to prevent genocide however possible – even if it has not been fully proven at this stage of proceedings. In a time of unthinkable violence, this will be an important message not only for the parties in South Africa v. Israel, but to all states implicated in the wider political dispute.
Yusra Suedi is a Lecturer in International Law at the University of Manchester. She holds a doctorate in Public International Law from the University of Geneva for her manuscript entitled The Individual in the Law and Practice of the International Court of Justice (forthcoming with Cambridge University Press). Yusra’s current research project is on ‘Public Interests in International Dispute Settlement’. She has worked for the United Nations Office in Geneva, the International Law Commission, the Institut Du Droit International, the International Labour Organization Administrative Tribunal and the International Court of Justice. She has held teaching and research positions at the London School of Economics (LSE) Law School and King’s College London, UK. She has assisted counsel for governments and organisations before the International Court of Justice and has published in journals such as The Law and Practice of International Courts and Tribunals and the Leiden Journal of International Law.