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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

Last weekend’s decision by the International Court of Justice was seen as a victory by many.

South Africa and the Palestinian Authority saw it as a vindication, as orders have been made to prevent any genocidal acts in Gaza and the ICJ will move towards a full trial.

Others heralded it as a win for Israel, with the court refusing to make an order for the end of military action against Hamas.

Today, expert in international law and Professor of Law at the University of California Davis Chimene Keitner, on what the ICJ really considered and what their interim-decision means.

It’s Wednesday, January 31st.

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ANGE:

Chimene, we now have the first ruling of the International Court of Justice in this case alleging genocide in Gaza. But to understand what the ruling really means, I want to start by asking about the litigation that South Africa filed. How did this come about? And what was South Africa arguing?

CHIMENE:

This is indeed, a case brought under the Genocide Convention, which is a treaty that is almost as old as the United Nations itself.

So after World War II, in addition to creating the United Nations, countries got together and worked on a number of really important human rights instruments.

Audio excerpt – Eleanor Roosevelt:

“This Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere.”

CHIMENE:

And not long after many countries ratified a binding treaty prohibiting genocide, really trying to make very robust the international law prohibition both on the act of genocide, but also the whole, through support apparatus for the attempted eradication of the Jewish population in Europe, to which all of this, was reacting.

Audio excerpt – Ernest Gross:

“the physical extermination of human groups is of such grave and legitimate international concern that the international society is justified in branding genocide as a crime under international law.”

CHIMENE:

So in the treaty itself, in the Genocide Convention, most of the countries that have signed up for this treaty have also agreed that the International Court of Justice in The Hague will be the decision maker if disputes arise under this treaty.

And so South Africa had decided that it would essentially take up the cause of the Palestinian people, use this treaty, under which Israel had agreed to the jurisdiction of the international court, and try to put additional pressure on Israel to stop, the actions that in South Africa's argument, violate the Genocide Convention.

Audio excerpt – Judge in the International Court of Justice:

“The court meets today and will meet tomorrow under article 74, paragraphs three of the Rules of Court. To hear the oral observations of the parties on the request for the indication of provisional measures submitted by the Republic of South Africa. In the case concerning application of the convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip.”

CHIMENE:

So South Africa eventually would like the International Court of Justice to declare that Israel had violated the Genocide Convention.

But at this stage, what it was doing earlier this month was trying to get the court to say that there is enough of a chance of violating the treaty, to find that it was plausible that Israel has violated one or more provisions in the convention, which include, provisions, requiring that Israel prevent, not commit and not allow the incitement of genocide.

And if that was plausible, that opened the door to the court to issue some binding orders.

Genocide is a very specific crime under international law.

And in order for conduct to amount to genocide, whether that conduct is killing people, seriously harming them, displacing them, preventing births within a group, all of those acts are only genocidal if they're committed with a specific intent to destroy a group in whole or in part.

ANGE:

Right, I guess what you’re describing sounds like a challenging task for South Africa, as genocide is a very specific crime, with very defined parameters, particularly around intent to destroy a population. How exactly did South Africa go about presenting its argument to the court?

CHIMENE:

Well, I think there again, two reasons that South Africa used to the Genocide Convention. And the big reason is that this is the only treaty that would let it get into court to begin with. Right?

But the other reason, of course, is, South Africa is very much trying to make a point that what Israel is doing, in its view, is not simply in the realm of war crimes, but rather does have this specific intent.

And I think South Africa has, had said two things. One, it has said, look at the scale of the devastation.

Audio excerpt – Adila Hassim:

“Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea. They are also at immediate risk of death by starvation, dehydration, and disease as a result of the ongoing siege by Israel.”

CHIMENE:

So South Africa was able to paint a picture of devastation on the ground, and it attempted to link that devastation on the ground to comments that had been made, by various Israeli figures.

Audio excerpt – Tembeka Ngcukaitobi:

“The evidence of genocidal intent is not only chilling, it is also overwhelming and incontrovertible.

On 9th October, the Defence Minister, Yoav Gallant, gave a situation update to the Army, where he said that as Israel was imposing a complete siege on Gaza, there would be no electricity, no food, no water, no fuel. Everything would be closed because Israel is fighting human animals.

In fact, Heritage Minister Amihai Eliyahu said that Israel must find ways for Gazans that are more painful than death.”

CHIMENE:

And remember, incitement to genocide and failure to prevent and punish incitement is also a violation of the Genocide Convention.

So already there, you've got a foot in the door, so to speak, for the International Court to take this case.

But South Africa goes much further and says, no, no, no, this is not just talk. It's really evidence, further evidence that what Israel is doing is animated by an intent to destroy the Palestinian people. So that was essentially the narrative that we heard on the first day of hearings. And then, of course, Israel had a quite different narrative to offer when its three hours of argument came around.

ANGE:

Yeah. Let's talk about how Israel approached their side of the argument. It happened on the second day of public hearings, and I guess their task was to argue that Israel's actions in Gaza constituted a defence of its people. What was their case exactly?

CHIMENE:

Absolutely. So, Israel, I think, talked a lot about its efforts to ensure the provision of some humanitarian aid. The problems of Hamas, requisitioning humanitarian aid that has been provided.

But its presentation was almost entirely focused, of course, on October 7th and on the threat posed by Hamas.

Audio excerpt – Tel Becker:

“What proceeded, under the cover of thousands of rockets fired indiscriminately into Israel, was the wholesale massacre, mutilation, rape and abduction of as many citizens as the terrorists could find.”

CHIMENE:

And so what Israel said, first of all, is that, the allegation of genocide, in its view, is that I think the words used have been outrageous. I think for Israelis in particular, given that the state of Israel was established as a homeland for the very people who were persecuted and killed during the Holocaust, which gave rise to the Genocide Convention. I really do think it is, literally unimaginable for many people in Israel to find themselves on the receiving end of a claim under the Genocide Convention.

To their minds the genocidal actor here is very clearly Hamas.

Audio excerpt – Tel Becker:

“that if there have been acts that may be characterised as genocidal, then they have been perpetrated against Israel. If there is a concern about the obligations of States under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas’s proudly declared agenda of annihilation, which is not a secret.”

CHIMENE:

They expressed deep regret for the civilian suffering in Gaza. But I think their attitude still, and certainly as expressed during the hearing, was that they have no choice, that the only way, in their view, to protect their population from another October 7th.

And they certainly quoted Hamas leaders saying that their plan is to attack Israel again and again, that their only way to protect their population is to decimate Hamas as a military force.

And in its view, it calls on the population in Gaza to evacuate huge areas. It's not an attempt at forced displacement, but rather complying with its obligation under international humanitarian law to attempt to warn civilians of attacks that are coming.

So I think, again, in Israel's view, It feels very strongly that, that any attempt to portray what it's doing as genocidal when in its view, it is doing everything it can to comply with the laws of war, is why it is taking this case so seriously.

Both narratives were presented in great detail to the court. And as you can tell they don't have much overlap. The one and the other. So we really did get two diametrically opposed views of what the judges should be looking at and how they should be thinking about this conflict.

I will say I think that the court judgement did a fairly good job at sort of knitting these narratives back together.

And what was remarkable to me is the court came back, virtually unanimous.

ANGE:

After the break – Will the court’s ruling change what’s happening on the ground?

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ANGE:

Chimene, we've been talking about this historic case at the International Court of Justice, and last Friday, the world was watching closely as this panel of 17 judges handed down the first interim ruling. What did the judges say?

CHIMENE:

The court came back in less than two weeks. So it really handled this request, on a very expedited basis, as it is required to do when there's a provisional measures request.

The judges essentially said that Israel is going to have to be very careful going forward, because it is plausible that Israel has been violating some portions of the Genocide Convention, and ordering it, to take a number of steps to make sure that it complies with international law.

Audio excerpt – Judge in the International Court of Justice:

“The Court concludes, prima facie, that South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.”

ANGE:

Okay. And can you explain what those orders were, and what they’ll mean in a practical sense for this conflict going forward?

CHIMENE:

Absolutely. So, it's interesting because, as you would expect in an adversarial proceeding, the parties are already spinning them in slightly different ways.

So there's a multi-part order essentially. Two parts of the order are directed, specifically to Israel, reminding it of its obligations under the Genocide Convention.

Audio excerpt – Judge in the International Court of Justice:

“Israel must, in accordance with its obligations under the Genocide Convention in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of article two of the convention.”

CHIMENE:

And so what I mean about spin is that, South Africa would say you wouldn't need to remind Israel of its obligations under the Genocide Convention. If the judges didn't think Israel was violating the Genocide Convention.

On the other hand, Israelis would say, well, you know, it's fine. The court is just telling us to do what we know we have an obligation to do already. And so they're sort of superfluous, but also not going to change our behaviour, necessarily.

So that the first two orders reminded Israel and ordered Israel, so this is a legally binding order. Again, though, that that replicates Israel's existing obligations under the Genocide Convention, to prevent and punish genocide and to ensure that its military does not commit, any of those actions.

Then the next orders were actually indicated, on, on a vote of 16 to 1. And requires Israel to provide immediate and effective access for humanitarian aid, and to prosecute and punish incitement to genocide.

The last two orders, again passed by a vote of 15 to 2, require Israel not to destroy, any evidence or potential evidence of genocide. Again, requirement that Israel should abide by, in any event.

And then finally, a requirement that Israel submit a report on its compliance with these orders in a month.

Audio excerpt – Judge in the International Court of Justice:

“The State of Israel shall submit a report to the court on all measures taken to give effect to this order within one month, as from the date of the order.”

ANGE:

Right so how does the ICJ enforce these orders - are there mechanisms to make sure Israel actually abides by them?

CHIMENE:

The focus in the last couple of days has, has shifted to that reporting requirement.

This is the way in which the court would enforce its order. It doesn't have a police force. It doesn't have the ability to, to send Israel somehow to some other international mechanism other than the United Nations Security Council.

But the United Nations Security Council is divided over this conflict. And it has had tremendous difficulty, issuing resolutions that have made it past the U.S. veto on the Security Council.

But I do think in a lot of areas of international law, these reporting requirements, you know, forcing countries to sit down and explain what they're doing and why it's lawful can affect their conduct.

My hope is that the court's order will, will play a constructive role in, enabling other countries to pressure Israel to abide by its obligations, not only under the Genocide Convention, but also under the laws of war.

ANGE:

And finally, Chimene, there is now a trial due at some point, and trials for genocide are rare. And this case in particular is politically significant as well. More broadly, how significant will this case be for international law itself and I guess the public perception of it.

CHIMENE:

That's a really fascinating question. And I think, again, the era that we're in now of, countries using treaties like the Genocide Convention, and using the international court to try and pressure, you know, other countries to comply with their obligations is a really interesting development.

And I think the more seriously Israel takes this, and the more we see it, empowering decision makers to really put pressure on Israel to, again, think twice about the humanitarian toll of its actions. The more successful it will be.

The determination whether Israel has violated or is violating any of the provisions of the Genocide Convention. Now moves to the next phase.

And then South Africa will be engaged in, presenting much more extensive evidence, and under the court's existing jurisprudence, there's actually a very high standard for a finding of genocide.

And so if Israel can persuade the court that it had a valid reason, to call on civilians to evacuate northern Gaza to target hospitals and schools. That it alleges Hamas was using, as bases to conduct, such a full scale, er operation in the wake of the October 7th attacks.

And given, how entrenched and extensive Hamas's network, particularly underground, has turned out to be, then under the current legal standard, it's actually quite unlikely that the court would find that Israel has, in fact, engaged in acts of genocide, given, that alternative explanation.

But I think the fact that this case will remain pending has put Israeli decision makers on notice. And will hopefully create some real pressure for them to weigh the civilian catastrophe that has been created differently as they’re making their military decisions.

ANGE:

Chimene, there's been so much to unpack and to make sense of. But thank you so much for your expertise and for speaking with me today.

CHIMENE:

It's been a lovely conversation.

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ANGE:

Also in the news today

The Nine Network has apologised for digitally altering an image of a Victorian MP, after she called out the editing as sexist.

The doctored image of Georgie Purcell, which was used in a bulletin, altered the MP’s clothing to be more revealing, and enlarged the size of her chest. Nine’s news director blamed ‘automation on photoshop’ for the mistake.

And

A council in Melbourne is considering permanently removing a monument of Captain Cook, after the memorial was vandalised multiple times.

The memorial in Edinburgh gardens, in the city’s inner north, was overturned on Monday and spray painted with the words ‘cook the colony’.

I’m Ange McCormack, this is 7am. Thanks so much for listening. We’ll be back again with more tomorrow.

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