Historic hearing: On the preliminary hearing at the Hague on Israel

A provisional order by ICJ on Israel will cast shadow on legitimacy of its war

January 17, 2024 12:20 am | Updated 07:57 am IST

Whatever the outcome of the preliminary hearing at the International Court of Justice (ICJ) at The Hague, South Africa’s case against Israel’s ongoing military campaign in Gaza has garnered global attention in a way no proceeding at this elite inter-state forum may have done before. As the 15-member court assembled, along with two ad hoc judges representing South Africa and Israel, quite a bit of history must have weighed on the parties. Of the two countries on either side of this dispute over whether the Gaza war is aimed at wiping out the people, one has left behind its apartheid past, but believes that the other is practising 75 years of ‘apartheid’ against the Palestinian people since 1948; one firm in its belief that it is acting in the interest of justice and humanity, the other equally firm in its belief it can never be accused of genocide, a crime that was sought to be prevented by the Genocide Convention of 1948, a treaty to prevent the sort of Holocaust the Jewish people had suffered. Both countries spent many years in the last century in diplomatic isolation, as countries and sporting bodies boycotted them, but both had the support of their western allies. Today, save for those few allies, the entire world supports a ceasefire in Gaza to end the epic suffering of its people.

At this preliminary stage, South Africa sought to demonstrate that some of Israel’s acts were capable of falling within the terms of the Genocide Convention and that there was ‘genocidal intent’ behind its acts. It relied on data on deaths and destruction and the collapse of civilian life and health infrastructure in Gaza. It drew upon statements attributed to key Israeli government figures to underscore what it called ‘genocidal intent’. The provisional measures sought include a suspension of military operations and steps by the parties to prevent the occurrence of genocide. Israel described the South African case as ‘blood libel’ before the hearing, but sought to make a case that its Gaza operations were a legitimate response to the terrorist attack on October 7 last year. It played down the relevance of its leaders’ statements, calling them mere rhetoric. It attributed the civilian casualties to Hamas using civilians as shields and hospitals as storage for explosives and launching pads for attacks. The issue before the court is quite straightforward, but the larger concern is whether Israel will abide by any provisional measure. Russia ignored an ICJ order to suspend its operations in Ukraine in March 2022. However, there is little doubt that any provisional measure will cast a shadow on the legitimacy of Israel’s Gaza war.

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