War in Gaza. “Genocide constitutes the supreme crime”

Olivier Corten is professor of international law at the Free University of Brussels. The accusation of “genocide” brought against Israel before the International Court by South Africa could, according to him, change the situation in the conflict.

Elisabeth Fleury

“As early as October 19, several UN special rapporteurs warned of a “risk of genocide” before reiterating their warnings, based both on the systematic and massive nature of the attacks on Gaza, on the number significance of Palestinian victims and on certain particularly shocking statements by senior Israeli officials,” recalls Olivier Corten, professor of international law.

South Africa has just petitioned the International Court of Justice (ICJ) to condemn Israel for “genocide”. Does this surprise you?

No. This approach did not surprise me. It is open to any party to the “Convention for the Prevention and Punishment of Genocide” adopted in 1948, whether or not that party is directly affected by such a crime. This is not the first time that the ICJ has been contacted in this way. Its judges had to rule in the context of conflicts which pitted Bosnia against Yugoslavia and Croatia against Serbia in the 1990s. Two other requests are currently being examined: the first targets Russia, at the initiative of the 'Ukraine. The second, filed by Gambia, accuses Myanmar of genocide against the Rohingya.

Invoking the notion of genocide, in this case, is it relevant?

On the scale of international crimes, genocide constitutes the supreme crime. This notion is therefore not used lightly and refers to particularly demanding criteria. For there to be genocide, there must be an intention to destroy, “as such”, an ethnic or religious group. This was the case with regard to the Jews during the Second World War, the Shoah having directly inspired the development of the 1948 convention. This was also the case in July 1995, in Srebrenica, when nearly 8,000 men and Bosnian teenagers were liquidated by Serbian forces on the orders of General Mladic. In the present case, from October 19, several UN special rapporteurs warned of a “risk of genocide” before reiterating their warnings, based both on the systematic and massive nature of the attacks on Gaza. , on the significant number of Palestinian victims and on certain particularly shocking statements by senior Israeli officials. The hypothesis that a genocide is underway must therefore be taken very seriously.

And yet the United States continues to deliver weapons to Israel...

Yes. And this could be considered a violation of international law. Because the 1948 convention does not just prohibit genocide. It also obliges its States parties to try to prevent it from being committed. By continuing to deliver weapons to Israel, despite repeated warnings from observers, the United States is doing the opposite. They take the risk of being accused of having also violated the convention.

We must therefore closely follow what the ICJ will say…

Absolutely. His decision will be made in two stages. First, the emergency. The judges in The Hague will very quickly hear representatives of South Africa and Israel and, if they consider that there is indeed a risk of genocide, they will be able to decide on precautionary measures to put an end to it. Secondly, they will have to establish, on the merits, whether Israel has indeed failed in its obligation to prevent or repress genocide within the meaning of the convention. In this phase, the other States parties to the 1948 Convention could also intervene to explain their position regarding the interpretation of this convention. The judges' decision could take months, even years, especially since Israel could also increase the number of preliminary objections on which the Court would have to rule before addressing the merits.

And all the while, the number of civilian casualties continues to rise every day...

The State of Israel has repeatedly shown a flagrant lack of respect for the decisions taken by the competent United Nations bodies. Furthermore, the decisions of the ICJ, which are legally binding, are in principle guaranteed their application by the Security Council on which the United States sits. This provides two good reasons to believe that South Africa's approach will only have symbolic significance. But limiting ourselves to this reductive approach would be a mistake.

For what ?

Firstly because the judges of The Hague enjoy an excellent reputation. Their independence is unanimously recognized and most of their judgments are respected. Then, because South Africa’s initiative could gain momentum. Other states could indeed join in, and the unconditional support of the United States or others for Israel would then become increasingly problematic. However, it is difficult to predict which way the Court will rule. The judges are unlikely to unilaterally castigate Israel. They could demand more generally that all parties take all possible measures to prevent or repress acts of genocide. Regardless, if they admit that the Genocide Convention is relevant to judging the events taking place in Gaza, that could be a game-changer.