Muhammad Al-Minshawy

Following the end of the opening deliberations of the International Court of Justice to consider the lawsuit filed by the State of South Africa against Israel, which accuses it of committing the crime of genocide through its ongoing aggression against the Gaza Strip, Al Jazeera Net interviewed international law jurist and former United Nations expert Richard Falk about the trial, its repercussions, and his expectations regarding its end results. 

American Professor Richard Falk is a professor of international law and professor emeritus at Princeton University, and was a distinguished visiting professor of international studies at the University of California.

Falk chairs the Board of Directors of the Nuclear Peace Foundation, and has previously participated in the work of the Independent International Commission for Kosovo. In 2008, he was appointed as a member of the United Nations Human Rights Council for a period of 6 years as a United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Falk has published widely on international law and the United Nations.

Here is the text of the dialogue:

What do you think of the South African prosecution team's submission that Israel's military operations in the Gaza Strip violate Israel's obligations under the UN Genocide Convention, and that its actions mean it is committing genocide?

Israeli military operations in Gaza continued for more than 100 days, but almost from their beginning objective observers felt that they were facing a “model case” of genocide, in which the military attack systematically and overtly aimed to make Gaza uninhabitable and inflict severe suffering on innocent civilians.

This entire operation appeared to be a clear violation of the basic rules of international law, and could not be credibly legitimized from a security or self-defense perspective by Israel. Instead, the Israeli military campaign has been announced in the most extreme terms by Israel's senior political and military leaders, and has been consistently demonstrated in practice by the sadistic tactics relied upon by the Israeli military.

Ignoring official statements calling for turning Gaza into a “parking lot,” “emptying Gaza of all Palestinians,” or presenting the option of “leave or die” reveals a stunning defiance of the criminal prohibition of genocide.

Israel overlooks the fact that it was a party to the 1948 Genocide Convention, as it pledged to respect this unconditional constraint on state behavior, meaning that reliance on legal justifications for self-defense and counter-terrorism can never provide a moral or legal basis for its behavior towards Gaza since October 7 last.

In addition, Israel distorts the facts and evidence by claiming that the Hamas attack constitutes genocide against the Jewish people, and that it is Israel that is defending itself against a genocidal opponent.

What happens if South Africa prevails at the International Court of Justice?

We cannot know in advance what will happen, but we can offer an informed opinion based on the Israeli allegations against South Africa, insisting that merely raising a dispute about the truth of the genocide in Gaza amounts to bloody libel against the Jewish people.

In more cautious secular language, the US State Department said that South Africa's initiative lacked "merit" because it lacked an acceptable legal basis in reality. It therefore seems likely that, if necessary, the United States would use its veto power in the Security Council and oppose any General Assembly resolution calling for compliance with interim measures decided by the International Court of Justice against Israel, as it is entitled to under Article 41(1) of the statute that governs its operations.

The ICJ also appears to have the authority to impose interim measures directed against Hamas, which it may be expected to do as a demonstration of its balanced approach.

If this expected sequence of evasive non-compliance occurs, it will likely lead to large and sustained protests around the world including in the United States and European countries that provide support to Israel to varying degrees and initially gave full approval to Israel's disproportionate response to the Hamas attack in October 7 last.

The success of the court would mean the start of Israel being widely labeled a “pariah state,” which would prompt a significant escalation in the nature and severity of solidarity initiatives with Palestinians around the world, including resorting to sports and cultural boycotts.

What happens if South Africa loses at the International Court of Justice?

Israel will undoubtedly gloat and celebrate a legal victory, denigrating critics of its tactics during this period as hysterical anti-Semites. It would also lead Israel and the United States to justify their refusal to follow the global majority of governments in the United Nations that favor an immediate ceasefire in Gaza.

Those who support South Africa's initiative are likely to react with a mixture of bewildered confusion and downright anger at what would certainly be considered a disappointing outcome at the ICJ in this case. How can the highest court in the world consider such compelling evidence so well presented to the court by the South African legal team and yet decide in a perverse, cruel and unprofessional manner to reject the application for interim measures?

Assuming that the majority of judges in The Hague reach an ambiguous result in its ruling expected in the coming weeks, it will likely lead to reactions to the decision in which the global West stands behind Israel's interpretation, and those who espouse the views of the Global South will view the results as politically motivated, making It reduces the Court's standing as a court of law deserving of the utmost respect from states in the future.

What is the result of this dilemma?

There is an objective compromise based on a technical judicial argument presented by Israel in the International Court of Justice hearings on January 12, according to which any action taken by the court this time would be “disruptive,” as there was a failure to prove the existence of a “legal dispute” between the two parties. (Israel and South Africa) when submitting the application to the court.

The South African team refuted this argument at the ICJ hearing, but it could provide the court, or some of its judges, with an escape from an awkward dilemma that pits moral legal considerations against real-world politics.

In some respects, the most important response, whatever the court's position, will be the reaction in world opinion. The success or failure of South Africa's request that the court issue interim measures to stop the genocide may not make much immediate difference to the political impact of its decision.

If the court grants South Africa's request, Israel will likely refuse to comply, leading to an angry response from international civil society to Israel's non-compliance.

Prime Minister Benjamin Netanyahu claimed that the Israeli army is “the most moral army in the world.” Do you agree with him? And why?

This claim is unique in its nature. It is consistent with the propaganda repeated by Israel and passes uncritically in all Western countries. We must remember that years before the current aggression, even among conservative international visitors, for example the British political leader David Cameron, referred to the Israeli occupation of the Gaza Strip as “the largest open-air prison in the world.”

It is not surprising that individuals who were expelled from their homeland decades ago and then indefinitely “imprisoned” for no crime, continuing on what a prominent government consultant called a “subsistence diet,” would at some point risk everything to achieve a prison escape, which Norman Finkelstein called “Slave revolution,” referring to the Hamas attack.

Less legal and more strategic, Israel viewed Gaza as a trial combat zone, where it could demonstrate its counterterrorism capabilities to its enemies and to other governments facing similar challenges that would become clients of Israel's powerful weapons industry, including with respect to innovations in tactics, weapons, and training.

It also wanted to show hostile countries in the region that it would respond to provocations with disproportionate force. Such an approach was formulated in the Dahiya Doctrine in the early 1980s, a line of thinking that justified the destruction of a poor neighborhood in southern Beirut believed to be a Hezbollah stronghold among a sympathetic Lebanese civilian population.

It is the Dahiyya doctrine, in engineered magnified form, that underlies the security justification for Israel's horrifyingly disproportionate response to the October 7 attack, and to the extent that Israel's response is viewed by an increasing number of informed observers as a clear example of genocide, it makes the claim that the Israeli armed forces are “the most ethical in the world” is a rather sick joke.

How does the aggression against Gaza affect respect for international law and its prestige?

The short-term answer will be largely influenced by how the ICJ handles South Africa's request for interim measures, and whether countries around the world, especially Israel and the United States, show defiance or respect for the outcome. Also relevant is the extent to which civil society has been positively impressed by the ICJ's response to South Africa's request, which will have some impact on perceptions of international law at street level around the world.

If we broaden the scope beyond assessing the effects of the violence of the Israeli campaign in Gaza, it becomes clear that Israel has long been flagrantly violating international humanitarian law during its long period of occupation that began with its victory in the 1967 war.

In general, Israel has defied international law whenever compliance seriously conflicts with its national policies and strategic priorities. It cites international law when it can use it to justify its actions or complain about the Palestinian resistance, as in its pathetic arguments at the International Court of Justice hearings on January 11, which inverted the facts and the law to undermine ongoing genocide claims.

Israel is not a member state of the International Criminal Court. Can its leaders be held accountable under the jurisdiction of this court?

In theory, the ICC has jurisdiction to try the leaders of a sovereign state if the alleged international crime is committed within the territory of another party within the judicial framework set out in the Rome Statute.

In practice, this requires that the ICC obtain physical control over such persons, and this usually depends on the voluntary cooperation of a state to extradite defendants who belong to a state that is not a member of the court's system. As for member states of the Rome Statute, which governs the operations of the International Criminal Court, they are obligated to cooperate with the court, including during the investigation and any resulting arrest.

In addition, the trial cannot proceed unless the accused person or persons are present in the courtroom for the duration of the prosecution. For these reasons, future prosecution of Israeli leaders is highly unlikely.

Israel need not be a party to the Rome Statute governing the ICC's authority if the court finds that it has valid legal authority to proceed with the investigation and potentially indict Israeli political and military leaders accused of responsibility for crimes committed in the occupied Palestinian territories, which includes Gaza. 

The International Criminal Court officially decided in 2021 in a session of a three-judge chamber that it could move forward with examining Palestinian allegations of Israeli crimes committed on the territory of occupied Palestine after 2014. Palestine became a non-voting member of the United Nations in 2012, and later a party to the ICC Treaty Framework as set out in the Rome Statute.

Current ICC Prosecutor Karim Khan has shown little interest in proceeding as allowed, in sharp contrast to the haste displayed in relation to the lesser allegations against Putin for crimes in Ukraine linked to the alleged 2022 aggression.

What is South Africa seeking to achieve by filing a lawsuit against Israel in this case?

It is always difficult to portray the goals of a controversial legal initiative of this kind, and in this case the goals may be less clear than the motivations. Post-apartheid South Africa linked the Palestinian struggle for basic human rights to its struggle against the apartheid regime. Nelson Mandela famously said, “Our freedom will not be complete until the Palestinians are free.”

In a sense, genocide is the consummation of apartheid, a feature of the final stages of the settler-colonial project, which is perhaps the best way to understand what is happening in Gaza, and appreciate the bad memories that such developments revive in South Africa.

South Africa may also be motivated by memories of the role played by governments in the global West in relation to its previous conflict. These countries were long insensitive to oppressive apartheid rule because they were strategically linked to Cold War-era apartheid South Africa.

Palestine has been victimized and Israel has become protected by the US-led commitment to its strategic interests in the Middle East as reinforced by domestic pro-Israel lobbying and donor influence over government policy and media presentations.

The administration of President Joe Biden denounced referring Israel to the International Court of Justice and accusing it of committing genocide in its war on Gaza, describing the allegation as “baseless.” What do you think of this American position?

As I mentioned, the primacy of interests in US foreign policy leads to ignoring international law whenever it clashes with strategic interests. Describing the South African initiative as “worthless” in light of the abundantly documented genocidal practices and genocidal policies and language of Israel’s senior leaders challenges reality as embodied in the provisions of the Genocide Convention, which calls on parties to prevent and punish perpetrators of genocide by others, as well as to Refrain from such behavior.

There are two points to emphasize:

The contradiction between the United States' response to allegations of abuses by its adversaries, China and Russia, and its steadfast support for accused international friends and allies.

The moral hypocrisy associated with such a brazen double standard, undermining the authority of the law by adopting policies that treat equals unequally.

The United States is paying a heavy price for its reputation at home and abroad by standing with Israel in opposing South Africa's legal appeal to stop the genocide, which enjoys support around the world, as it seeks to put an end to the ongoing and apparent genocide.

This initiative was taken only after several attempts in the Security Council and the United Nations General Assembly to end the genocide were blocked or went in vain.

Source: Al Jazeera