Article written by Cheryllyn Dudley (Political Analyst at dia-LOGOS) and former Member of Parliament in South Africa (June 1999 to May 2019)
The ICJ has scheduled a hearing of the case that South Africa has triggered. This is set down for 11-12 January 2024 at The Hague according to South Africa's Head of Public Diplomacy, Mr Clayson Monyela. “Our lawyers are currently preparing for this” he said recently, and reliable sources tell me, that South Africa will be well prepared to argue their case in line with existing international law.
While the US State Department and the White House have dismissed South Africa's charges of genocide against Israel and Matthew Miller spokesperson for the US Department of State has said the USA is "not seeing any acts that constitute genocide," things are in reality a little more complicated.
Both Israel and SA are signatories to the Genocide Convention of 1948 (which precedes the Rome Statute by quite a few decades) carries far more legal weight than the Rome Statute (and its associated court, the ICC), to which Israel is not a signatory. The Genocide Convention has very specific elements to which the SA case refers.
The ICC focuses primarily on International humanitarian law, over which the ICJ has no jurisdiction. In the Gaza war, for example, international legal attention has been more focused on possible Israeli violations of international humanitarian law (IHL) than on possible violations of the Genocide Convention. The reason that the IHL claims are not at issue in the SA case is that the ICJ does not have jurisdiction over them. The International Criminal Court likely does, however, and its prosecutor has already begun an investigation of the situation in Gaza.
The Genocide Convention, by contrast, does provide for ICJ jurisdiction. To establish jurisdiction, South Africa must demonstrate that its dispute with Israel relates to the interpretation, application, or fulfilment of the Genocide Convention. To that end, South Africa argues that the dispute concerns both South Africa’s own obligations as a State party to the Genocide Convention to undertake to prevent genocide, as well as Israel’s compliance with its obligations under the Convention.
The application unambiguously condemns Hamas’s targeting of civilians and hostage-taking on October 7 but argues that no armed attack on a State’s territory no matter how serious—even an attack involving atrocity crimes—can provide any possible justification for, or defence to, breaches of the Genocide Convention.
According to ‘The Promise and Risk of South Africa’s Case Against Israel’ by Alaa Hachem and Oona A. Hathaway South Africa has requested an expedited hearing to seek provisional measures —temporary remedies granted under special circumstances while court proceedings continue to the next stage —to protect the Palestinian people. Specifically, it requests that Israel suspend immediately its military operations in and against Gaza.
SA has standing to bring the case, in view of precedence set by The Gambia in their case against Myanmar in 2019. And the recent case of The Netherlands and Canada's joint case against Syria.
So, this is likely to create difficulties for Israel as there are in fact international legal violations that do give the SA case some merit. On the other hand, it is not clear how a decision against Israeli leaders or members of the IDF could be enforced. Neither is it clear whether or not a decision by the ICJ would make any difference to the situation. According to Mitchell Geoffrey Bard, an American foreign policy analyst, editor and author who specializes in US/Middle East policy, the Palestinians have for years tried to convince the ICC to charge Israeli soldiers and politicians with war crimes, but the United States and Israel have consistently said they will not recognize the jurisdiction of the court over their citizens.
The focus on Israel, a democracy with an independent judiciary that investigates accusations of abuse, Bard says, represents a double standard while the ICC is not investigating blatant crimes committed by serial human rights abusers such as Turkey, China, and Russia. It has not, for example, charged Syria’s Bashar Assad for his use of chemical weapons against his citizens. The ICC is in fact investigating war crimes allegations levelled at both Hamas and Israel.
The ICJ application may well pose a greater deterrent to Israel and the USA and impact the present strategies being implemented with regard to the problems Israel faces.
It seems the difference between the ICC and ICJ is that the ICC is independent of the UN and the ICJ operates from within the UN while both reside in the Hague.
It has been suggested that an unintended consequence of a decision against Israel could be that it would prevent the Biden administration from restoring aid to the Palestinians. This could also open a door for the US or Israel to bring charges against Hamas and the Palestinian Authority and Mahmoud Abbas could find himself being charged as a war criminal for his part in inciting violence.
As a judicial institution, the ICC does not have its own police force or enforcement body. It relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences. The ICJ has similar restrictions and will rely on member support.
War is a terrible thing and few will argue with the notion that it should be avoided if at all possible. The blatant savagery by Hamas during the most recent of ongoing attacks on Israeli civilians has sadly left Israel and others who are on the receiving end of vitriolic attacks from Hamas, few, reasonable options.
We are living in a world that has resorted, through the ages, to war in order to protect their people from marauding tribes, take control of arable land and other resources to ensure the survival of their people, satisfy a lust for power and more recently gain access to or control of trade routes and energy supplies. While negotiations and diplomatic agreements have been seriously preferred by most reasonable people the reality is that geo-politics and other agendas do not allow for success in such endeavours and countries facing difficult predicaments often choose war despite the devastating cost involved. This tragic aspect of human existence still plagues us despite the Herculean and to some degree successful efforts made after World War 1 and 2 to engineer a global system that would make war less desirable.
But today’s world is different, the previous world order has passed and with America now being energy self-sufficient, and rich in people and other resources it does not need to concern itself to the same degree, with world peace. They are at greater liberty to choose who they help or do not help. In other words, they no longer need to hold up the Bretton Woods agreement and an increase in border wars and countries realigning in the interests of survival is a realistic scenario.
Genocide has been occurring since the beginning of ‘man’s’ interaction with each other (intentional and less intentional) and fear and self-preservation have been part of the motivation however there always seems to be a darker side. When acting on natural urges to eliminate an enemy human beings become victims of bitterness, hatred and depravity of every kind themselves and it seems that to live with this self-realisation or in denial of it, an irrational hatred of a people based on race, ethnicity and or religion becomes the justification.
Forgiveness and reconciliation in the final analysis are the only way to go. It is a scary, daring, and courageous choice but the only choice that leaves any chance for humanity to survive and for good to triumph over evil.
A Christian Perspective: JUSTICE AND COMPASSION: The challenge is in the balance.
Written by Mike Burnard (Analytical Strategist at dia-LOGOS)
One of my previous leaders at Open Doors always reminded us that “in life, the challenge is in the balance”. This is perhaps the one single lesson that Christians need to apply in the Gaza conflict more than anything else. “The challenge is in the balance”
The Gaza conflict is currently viewed from two angles. Many believers observe from the angle of compassion while others are looking from the angle of justice. It often seems that these two viewpoints are in conflict with one another.
Both are needed – but in equal measures. E’Jéi Osborne once said that “Justice without mercy is tyranny” and this would probably best describe what lives in the hearts of both the Hamas terrorists – who seek justice for their occupied territory, as well as the Israel Government – who seek justice for the October 7 attack.
In both instances, mercy is completely non-existent and the brutal and ugly face of tyranny is exposed to the fullest – both on 7 October and the aftermath that has now resulted in the death of more than 22,000 people of which 9,000 are children.
For Christians this poses a tension – and rightly so. The following arguments are often expressed
There is no doubt that a genuine pursuit for justice exists but it is accompanied by a complete lack of compassion
So, is it even possible to seek justice and still have a heart of compassion for the aggressors, the victims, and the perpetrators?
The answer is only discovered when we find the ability to balance justice and compassion. This will turn Retributive Justice into Redemptive Justice and ultimately into Restorative Justice[1].
Retributive Justice
Retributive justice, which can also be called criminal justice, focuses on how to punish crime. It’s based on the idea that when wrongdoing is committed, the wrongdoer should get a proportionate punishment. That doesn’t mean the wrongdoer should be subjected to exactly the same ordeal (i.e. if someone hits someone in the face, they don’t need to be hit back as their formal punishment), but it needs to be proportionate. Those who study retributive justice also tend to emphasize the need for indifference, meaning that justice shouldn’t be personal or based on revenge. While many justice systems include some kind of retributive justice, its effectiveness is debatable. Considering the flaws in many criminal justice systems, retributive justice can also end up harming innocent people or unfairly punishing certain groups over others.
The current conflict in Gaza is a classical case of retributive justice. This was evident when Mr. Benjamin Nethanyahu, the Prime Minister Of Israel, addressed the media soon after the 7 October attacks. His references to violent biblical passages raised alarm. He compared Hamas to the nation of Amalek from the Book of Samuel. That passage says to smite the Amalekites – killing each and every one of them – including babies, including their property, including the animals.
Redemptive Justice
Redemptive Justice is when the purpose of justice seeks to redeem and not punish. Thomas Aquinas, Italian Dominican theologian and a foremost medieval scholar, celebrated compassion this way: “Among all the things that cause enjoyment concerning the Lord, there are two—namely, compassion and justice. “ If you “take justice away, no one will be secure and happy. Likewise, without compassion all are fearful and do not love.” He cited the psalmist who says, “The lord loves compassion and justice.’”
Aquinas also often referred in his teachings to the prophet Micah: “I will show you, O people, what is good and what the Lord requires of you. Especially to do justice, to cherish compassion, and to walk humbly with your God.” Aquinas recognized that “we find these two things, compassion, and justice, in all the works of God. Compassion comes first, and after it follow justice. Therefore the psalmist says, ‘all the ways of the Lord are compassion and truth.”
Once again the current conflict in Gaza reveals how retributive justice causes fear and hate – for all involved. The church alone has the solution of calling people to compassion, not because they do not acknowledge justice but because they seek redemption.
Restorative Justice
Only redemptive justice can lead to Restorative Justice. Retributive justice leads to death, redemptive justice leads to life. Restorative justice focuses on helping victims of crimes, but it also wants to help offenders understand the harm they’ve caused. The goal is repair, not punishment. Engagement, accountability, cooperation, and community are all essential principles. Restorative justice practices have been used in many criminal justice cases, but they’ve also been adopted during conflicts involving families, schools, and workplaces. Unlike retributive justice, restorative justice doesn’t focus on what criminals deserve, but rather on what victims need to heal and what communities can do to prevent re-offending.
So, how do we respond? Do we seek justice with punishment or justice with redemption? Only one will lead restoration.