International Legal Transgressions Committed by Israel in Gaza

UNITED NATIONS, 22 Apr 2024

Daniel Horgan – TRANSCEND Media Service

20 Apr 2024 – The International Court of Justice Case 192 Summarized & Its Implications for the World.

The Secretary General of the United Nations stated quite early in the conflict between Israel and Hamas a fact from the ground: “Gaza is becoming a graveyard for children.” Months later, after Israel has widely ignored the ruling of the International Court of Justice, Mary Lou Macdonald, head of the political party, Sinn Fein in Ireland, stated this: “Gaza must not become the graveyard for International Law.”

You don’t have to be a mortician on the ground to understand that with over 14,000 children dead, a graveyard for children is exactly what has transpired in Gaza.  You don’t have to be an international lawyer to understand the Geneva Convention or the violations that Israel has transgressed unabated.

In completely unprecedented fashion in modern times, Gaza has become a graveyard for 34,000 people.  Over 100,000 dead or wounded, with thousands more uncounted under the rubble.  This in only 6 months. It has also become a graveyard for a record number of journalists and aid workers.  A graveyard for hospitals and schools.  A graveyard for cultural centers and universities.  A graveyard for mosques and churches.  A graveyard for apartment buildings and bakeries.  The Wall Street Journal reports that almost half of Gaza’s buildings have been damaged or destroyed in the war there, a figure that also accounts for almost 70 percent of its 439,000 homes. A graveyard for daycare centers, playgrounds, and refugee camps.  Yes, it has even become a graveyard for cemeteries.  All this including the restriction of humanitarian aid that has put Gaza officially into famine.  Not only is it not questionable that Israel is committing war crimes and genocide, it is in fact as if Israel is somehow trying to qualify for the War Crimes and Genocide Hall of Fame.

So the question remains.  With diplomatic cover provided by the US and other powerful Western nations will the International Court of Justice and International Law itself also meet its grave in Gaza?

Father time may have the last say…

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations.  Additional justices sometimes sit in on cases.  17 Justices have presided over the case on Gaza.

The ICJ hears cases brought by nation states against other nation states, as opposed to the International Criminal Court, which hears cases that charges individuals (usually high-ranking politicians, military officials, and leaders of non-state armed groups) with violations such as war crimes.

This ICJ case was brought by the nation state of South Africa against nation state of Israel: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

Although the case will take years to complete the ICJ in its efforts to be a viable institution to prevent Genocide issued a summary ruling on January 26th, read by Chief Justice from the US, Joan Donoghue: “There is plausible risk that Israel is committing Genocide in Gaza…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 the Genocide Convention….”

Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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;

Parts a, b, and c are being referred to when the Court sites Article II in its statement above.

Considering the destruction of hospitals among other factors the Court also included in its ruling part (d) of Article II:  Imposing measures intended to prevent births within the group.

Hence, by fifteen votes to two The Court found plausible risk of Genocide in relation to Article II.

Further the ICJ ruled, 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.”

The ICJ also considered Article III of the Geneva Convention on Genocide.

Article III states : The following acts shall be punishable:(a) Genocide;(b) Conspiracy to commit genocide;(c) Direct and public incitement to commit genocide;(d) Attempt to commit genocide;(e) Complicity in genocide.

On part c, Direct and public incitement to commit genocide, by sixteen votes to one the Court voted and ruled: “The State of Israel shall take all measures within its power to prevent and punish violators of part c upon members of the Palestinian group in the Gaza Strip.” 

The evidence for the direct and public incitement is a portion of the case that International legal experts claimed was easiest to prove as the evidence itself referred to the many public statements that high ranking Israeli officials made.

Deputy Knesset speaker Nissim Vaturi from the ruling Likud party wrote on X, formerly known as Twitter, that Israelis had one common goal, “Erasing the Gaza Strip from the face of the earth.” Israeli Heritage Minister Amichay Eliyahu, from the far-right Jewish Power party, suggested that Israel drop a nuclear bomb on Gaza and said there were “no uninvolved civilians” in the territory.

The minister of energy and infrastructure, Israel Katz on October 9^th announced water, electricity, and food to be cut as he said, “What once was, will not be.”

With the ground offensive getting underway in late October, Prime Minister Benjamin Netanyahu cited the Bible in a televised address: “You must remember what Amalek has done to you.” Amalekites were persecutors of the biblical Israelites, and a biblical commandment says they must be destroyed.

Military officials and two Israeli pop singers are also cited by South Africa for making inflammatory comments.

“The language of systemic dehumanization is evident here,” lawyer Tembeka Ngcukaitobi said for South Africa in remarks before the court. “Genocidal utterances are therefore not out in the fringes. They are embodied in state policy.”

Last but not least the ICJ ruled that Israel should preserve evidence for the case that could lie in the Gaza Strip:  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.

In a simplified summary the ICJ court ruling ordered 4 things:

Halting of killings and actions that could constitute Genocide.

Increased access to humanitarian aid including food/water etc.

Halt and prosecute public statements of incitement of Genocide.

Preservation of evidence in the case related to allegations of Genocide.

Israel’s response has largely been only to follow the order in terms of number three above and has indeed made less statements implicating itself in regard to Genocide.  This could clearly be due to the fact that it is the easiest to follow while still continuing its genocidal assault.

The State of Israel also was required by the court to submit a report to the Court on all measures taken one month from the date of the order, which it did so 2 weeks late on March 6th.

“The accusations made therein are outrageous and categorically denied. Much like South Africa’s Application that instituted the present proceedings.  They are wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the Court itself.” This could be found in item number one of the 21 page report.

Israel’s report was issued after South Africa requested the Court to provision further Israel based on concerns over an invasion of Rafah and starvation in the whole of Gaza:

Feb 16th: “This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah.” – South Africa

March 6th: “In its new request, South Africa states that it is “compelled to return to the Court in light of the new facts and changes in the situation in Gaza — particularly the situation of widespread starvation — brought about by the continuing egregious breaches of the Convention on the Prevention and Punishment of the Crime of Genocide.” – South Africa

Israel’s response: “The chronology of the case to date reveals much about South Africa’s belligerent and disingenuous approach.”

The court convened and issued an order on March 28th reaffirming the deteriorating conditions and the onset of famine, which be described as a widespread scarcity of food accompanied or followed by regional malnutrition, starvation, epidemic, and increased mortality:

In its Order, the Court observes that, since the 26th of January 2024:“The catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected”, and that “Palestinians in Gaza are no longer facing only a risk of famine, as noted in the Order of 26 January 2024, but that famine is setting in”

It also voted to reaffirm the January 26th order and additionally added to the order specific demands on the access and delivery of humanitarian aid:

“Israel must take all necessary and effective measures to ensure, without delay, in full cooperation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary;”

The court could be convened again soon if called upon. On April 5^th The Court set time frames for filing of written pleadings with Israel’s due July 28th and South Africa on October 28th.

Colombia and Nicaragua also petitioned the Court to be intervening parties in the support of the case South Africa has put forward.

It could be important to note the intervention of such countries such as Colombia and Nicaragua as it relates to the question of whether International Law can survive.  In the final analysis International Law has intertwined conundrums that encapsulate the divide between rich and poor nations. i.e. The colonizers vs. the colonized.

If being among rich, privileged, colonizing nations, Israel can escape prosecution or enforcement of The ICJ measures, there does seem to be a space reserved as the ‘graveyard for International Law’ in Gaza.   If being allied with powerful Western nations, such as the United States has diminished any of the ICJ’s effectiveness as already appears to be the case especially due its use of veto power at the UN, then International Law may indeed lie under the rubble with thousands of Palestinians.

Perhaps the more overarching view of the situation, however, is to realize and understand that this case is another bad mark on the report card of colonization and occupation. This considering the separate ICJ case 186, in which 49 Member States of the United Nations and three international organizations presented oral statements: Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.

Maybe the more optimistic and realistic view is that if the ICJ finds a powerful nation such as Israel guilty of a such a serious crime such as genocide then this in and of itself will be an achievement for all those who have been victims of colonization, occupation, and genocide. Ultimately, the effects that this ICJ case will have on the world lie many years, if not many generations in the future, and all those ‘martyred’ in Gaza should be not considered lost for nothing.

“I think the last thing that I would say that struck me was the attempt of the Palestinians to maintain their dignity and their humanity even in such really horrifying circumstances. They stayed in family units as much as they could. They tried to continue their traditions of Ramadan. Even though they were all desperately hungry and thirsty, they would still fast during the day. And it was the maintaining of their culture, maintaining their family units, maintaining their belief that the future can be better. That was extremely dignified, in my opinion, and it was very, very impressive to see.” -American Doctor reporting on his recent experience at the European Hospital in Gaza.

History and progress do not flow along in an upward and improving direction, but we must maintain our belief that we are never too old to learn from our mistakes.  We maintain our belief that the future can be better.  We owe it to the people of Gaza and to humanity.

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Daniel Horgan is an occasional contributor to TRANSCEND Media Service. He is a student of renowned Peace Professionals, Johan Galtung & the late Dietrich Fisher at the European Center for Peace Studies. He studied there with students from Israel and Gaza and has worked in conflict zones as an Unarmed Civilian Peacekeeper.  He created this factual video at the outbreak of the first major war in 2007 between Israel and Hamas: Israel/Palestine 2007– YouTube

This article originally appeared on Transcend Media Service (TMS) on 22 Apr 2024.

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