The ICJ’s Provisional Orders: The Genocide Convention Applies to Gaza
January 27, 2024, Dr Binoy Kampmark, https://theaimn.com/the-icjs-provisional-orders-the-genocide-convention-applies-to-gaza/—
On January 26, legal experts, policy wonks, activists and the plain curious waited for the order of the International Court of Justice, sitting in The Hague. The topic was that gravest of crimes, considered most reprehensible in the canon of international law: genocide. The main participants: the accused party, the State of Israel, and the accuser, the Republic of South Africa.
Filed on December 29 last year, the South African case focused on its obligations arising under the Convention on the Prevention and Punishment of the Crime of Genocide and those of Israel. Pretoria, in its case, wished that the ICJ adjudicate and declare that Israel had breached its obligations under the Convention, and “cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring out its physical destruction in whole or in part, and fully respect its obligations under the Genocide Convention.”
The latter words derive from Article II of the Convention, which stipulate four genocidal actions: the killing of the group’s members; the causing of serious bodily or mental harm to those group’s members; the deliberate infliction of conditions calculated to bring about the physical destruction, in whole or in part, of that group and imposing measures to prevent births within the group.
The sheer extent of devastation being wrought by Israeli Defence Forces in Gaza, justified by the Netanyahu government as necessary self-defence in the aftermath of the Hamas attacks of October 7, led the South African team to also seek immediate provisional measures under Article 41 of the Court’s statute. (The review on the case’s merits promises to take much longer.) They included the immediate suspension of the IDF’s military operations in and against Gaza, the taking of all reasonable measures to prevent genocide, and desisting from committing acts within Article II of the Convention. The expulsion and forced displacement of Palestinians should also stop, likewise the deprivation of adequate food, water and access to humanitarian assistance and medical supplies and “the destruction of Palestinian life in Gaza.”
By 15-2, the court accepted that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.” (Over 26,000 Palestinians have been killed, extensive tracts of land in Gaza pummelled into oblivion, and 85% of its 2.3 million residents expelled from their homes.) Measures were therefore required to prevent “real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.”
The grant of provisional measures was, however, more conservative than that sought by Pretoria. Conspicuously missing was any explicit demand that Israel pause its military operations. That said, the judgment did little to afford Israel’s leaders and the IDF comfort from the obligatory reach of the Genocide Convention, an instrument they had argued was irrelevant and inapplicable to the conduct of “innovative” military operations.
To that end, Israel was obligated to take all possible measures to prevent the commission of acts under Article II of the Genocide Convention, including by its military; prevent and punish “the direct and public incitement to genocide” against the Palestinian populace in Gaza; permit basic services and humanitarian assistance to the Gaza Strip; ensure the preservation of, and prevent destruction of, evidence related to acts committed against Gaza’s Palestinians within Articles II and III of the Convention; and submit a report to the ICJ on how Israel was abiding by such provisional measures within one month.
As is very much the form, the justice from the country in the dock, in this case, Israel’s Aharon Barak, could see nothing inferentially genocidal in his country’s campaign. South Africa, he insisted, had intentionally ignored the role played by Hamas in its October 7 attacks, and “wrongly sought to impute the crime of Cain to Abel.”
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Inevitably, the singular experience of the Holocaust survivor, the sui generis Jewish view of trauma, used as solid armour against any possibility that Israel might ever commit genocide, became a point of contention. Genocide “is the gravest possible accusation and is deeply intertwined with my personal life experience.” Israel had a firm commitment to the rule of law, and to accept that it was committing genocide “is very hard for me personally”. Tellingly, he suggested that Israel’s campaign in Gaza be examined, not from the viewpoint of the Genocide Convention but international humanitarian law.
With classic casuistry, Barak did vote for the measure requiring Israel to do everything “within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza strip.” But having identified nothing in the way of such intent, the issue became a moot one. With some relief, Barak could state that certain measures sought by South Africa, including an immediate suspension of military operations, were rejected by the ICJ, which preferred “a significantly narrower scope”.
From the other side of the legal aisle, the South African foreign minister, Naledi Pandor, wished that the ICJ had grasped the nettle to order a halt in military operations. But, with some deft reasoning, she was satisfied that the only way Israel could implement the provisional measures would be through a ceasefire. Much the same view was expressed by the Associated Press: “The court’s half-dozen orders will be difficult to achieve without some sort of cease-fire or pause in the fighting.” That logic is clear enough, but the actions, given the various statements from Prime Minister Benjamin Netanyahu and his officials alleging slander and a blood libel against their country, are unlikely to follow.
Israel Accuses The International Court of Justice Of (You Guessed It) Antisemitism
CAITLIN JOHNSTONE, JAN 27, 2024, https://www.caitlinjohnst.one/p/israel-accuses-the-icj-of-you-guessed?utm_source=post-email-title&publication_id=82124&post_id=141088641&utm_campaign=email-post-title&isFreemail=true&r=1ise1&utm_medium=email—
The International Court of Justice rejected Israel’s request to dismiss the genocide case brought against it by South Africa on Friday, ruling by a massive majority that the case shall proceed and instructing Israel to refrain from killing and harming Palestinians in the interim.
Many Palestine supporters have expressed dismay that the ICJ did not explicitly order a ceasefire, while many others (including South African officials) argue that the ruling is very positive and tantamount to a ceasefire order because it demands the end of harm to members of the protected group.
Imperial media are aggressively emphasising the absence of a ceasefire order in their headlines and many Israel apologists are framing that absence as a victory for their favorite ethnostate, but such performative chest-thumping is severely undercut by the way high-level Israeli officials are currently accusing the ICJ of antisemitism and saying Israel should ignore its rulings.
“The international court of justice went above and beyond when it granted South Africa’s antisemitic request to discuss the claim of genocide in Gaza, and now refuses to reject the petition outright,” complained Israeli defense minister Yoav Gallant in response to the ruling.
“The decision of the antisemitic court in The Hague proves what was already known: This court does not seek justice, but rather the persecution of Jewish people,” said Israeli national security minister Itamar Ben Gvir.
Ben Gvir also tweeted “Hague Schmague” immediately after the ruling was issued, which will probably go down in history as the most Israeli tweet of all time.
Everyone’s arguing about whether or not the ICJ’s ruling is helpful, and I don’t know enough one way or the other to be sure either way, but from where things stand right now it does seem unlikely to me that managers of the Israeli war machine would be getting this freaked out and whipping out their tired old “antisemitism” song and dance if there wasn’t something of substance to it.
International lawyer Francis Boyle, who won provisional measures against Yugoslavia at the ICJ in 1993, said the following of the ruling:
“This is a massive, overwhelming legal victory for the Republic of South Africa against Israel on behalf of the Palestinians. The U.N. General Assembly now can suspend Israel from participation in its activities as it did for South Africa and Yugoslavia. It can admit Palestine as a full member. And — especially since the International Criminal Court has been a farce — it can establish a tribunal to prosecute the highest level officials of the Israeli government, both civilian and military.”
So take that for whatever that’s worth to you. In any case the butchery in Gaza still urgently needs to be ended, and only time will tell whether Friday’s development had any major effect on the outcome of this horror.
But man what I wouldn’t have given to be a fly on the wall at the meetings they were having at the US State Department on Friday. It’s days like this that remind you why empire managers switched from talking about “international law” to using the meaningless phrase “rules-based international order”.
Fukushima Nuclear Waste Water Disputes Continued: International Law in Japanese Court?
Written by Grace Nishikawa and Dr. Marlies Hesselman, https://www.ejiltalk.org/fukushima-nuclear-waste-water-disputes-continued-international-law-in-japanese-court/ 16 Feb 24
On 24th August 2023, Tokyo Electric Power Company (TEPCO) started releasing the ALPS-treated waste water from the Fukushima nuclear power plant into the Pacific Ocean over a period of 30 years. As discussed on this blog before, here and here, the decision led to strong international responses from neighbouring States, such as China and South Korea, as well as reactions by several UN human rights bodies. One legal question currently attracting attention in several fora, is whether Article 4 of the Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters forbids the ‘dumping’ of the waste water into the sea, because it still contains radioactive matter, such as tritium.
This blog post draws attention to the interpretative controversy under the Londen Protocol by noting that the question is not only on the agenda of the Governing Bodies of the London Convention (LC) and its Protocol (LP), but also of the Fukushima District Court. In September, a group of Japanese citizens initiated a domestic lawsuit calling for an injunction to stop the release of the waste water. Their complaint is in large part based on personal rights under the constitution, but also invokes various international environmental law provisions, including Article 4 LC/LP. This post considers the interpretative controversy at hand, including whether the Japanese courts could play a role in addressing it.
Continue readingSouth Africa has made its genocide case against Israel in court. Here’s what both sides said and what happens next
Paul Taucher, Lecturer in History, Murdoch University, Dean Aszkielowicz, Senior Lecturer in History and Politics, Murdoch University, January 16, 2024 https://theconversation.com/south-africa-has-made-its-genocide-case-against-israel-in-court-heres-what-both-sides-said-and-what-happens-next-221017
Following the October 7 attack by Hamas, Israeli forces have carried out sustained attacks on the Palestinian controlled territory, dividing the international community.
Last week, the South African government presented a case to the International Court of Justice. They argued the Israeli government’s attack on Gaza, and especially the actions of its forces within Gaza since early October, could amount to genocide.
Few cases that have gone before the court are as explosive and potentially significant as this one.
Here’s how the hearings unfolded and what happens now.
Defining genocide
The crime of genocide is covered in the 1948 United Nations Convention for the Prevention and Punishment of the Crime of Genocide.
It is defined as acts committed with intent to destroy, either in part or in whole, a national, ethnical, racial or religious group, including:
- killing members of the group
- causing serious bodily or mental harm to members of the group
- deliberately inflicting conditions of life calculated to bring about a groups physical destruction, in whole or in part
- imposing measures to prevent births
- forcibly transferring children.
The Genocide Convention is designed to not only prosecute individuals and governments who committed genocide, but to prevent it from occurring.
Therefore, the Convention states that while genocidal acts are punishable, so too are attempts and incitement to commit genocide, regardless of whether they are successful or not.
The South African case
The South African government argued that Israeli forces had killed 23,210 Palestinians. Approximately 70% were believed to be women and children.
Crucially for the court, South Africa argued Israeli forces were often aware that the bombings would cause significant civilian casualties. It said many of the Palestinians were killed in Israeli declared safe zones, mosques, hospitals, schools and refugee camps.
Beyond the death toll, South Africa argued that there were 60,000 wounded and maimed Palestinians. The separation of families through arrest and displacement has caused large scale and likely enduring harm to civilians. South Africa highlighted the displacement of 85% of Palestinians, particularly the October 13 evacuation order which displaced over one million people in 24 hours.
The South African government also alleged the Israeli attacks and the actions of its forces were preventing the humanitarian needs of the Palestinian people being met. It particularly emphasised the Israeli decision to cut off water supply to Gaza. The distribution of food, medicine and fuel were also hampered. Israeli attacks on hospitals were also highlighted.
South Africa alleged the denial of adequate humanitarian assistance, especially medical supplies and care, amounts to the imposing of measures to prevent births.
Finally, South Africa focused on speeches by Israeli political leaders and soldiers advocating for the erasure of Gaza. This included Prime Minister Benjamin Netanyahu’s reference to the biblical destruction of enemies of ancient Israel and military commanders’ reference to Palestinians as “human animals” that need to be eliminated. These were used as evidence of incitement to genocide.
If the International Court of Justice doesn’t find that Israel is committing genocidal acts, South Africa has argued the Israeli forces have demonstrated an intent to commit genocide, and that there should be an interim order made to stop it.
The Israeli response
The Israeli government rejects all of the allegations by South Africa. Israel presented its arguments on January 12.
Israel’s overall argument is that the attacks on Gaza have been directed at Hamas soldiers. It says the civilian casualties have been an unfortunate consequence of carrying out military operations in an urban environment. Accordingly, the deaths, injuries and damage are not genocidal in nature, but instead, are incidental to military action.
Israel has presented evidence that it is delivering food, water, medical supplies and fuel to Gaza, demonstrating the opposite of genocidal intent. The Israeli Defence Force also runs a Civilian Harm Mitigation Unit.
These actions, according to Israel, are “concrete measures aimed specifically at recognising the rights of the Palestinian civilians in Gaza to exist”.
Finally, Israel has argued that the quotes South Africa have argued display incitement to commit genocide have been taken out of context. According to Israel, the court has no grounds to find that there are acts of genocide taking place, or that there is genocidal intent.
At this point, the court will not decide whether Israel has committed genocide or not. Determining that will likely take several years. Instead, the court will decide whether the allegations are at the least plausible, and if so, likely order that Israel and Palestine reach an interim ceasefire, and for Israeli forces to take all necessary steps to prevent genocide.
How significant is it?
If the court rules in favour of South Africa, a major world power – supported by the US and much of the Western world – will have been found to have committed what has, historically, been the most notorious of crimes.
That said, the prospect of any ruling by the International Court of Justice having a meaningful impact on the conflict in Gaza is remote.
The UN and its legal institutions are powered solely by a belief the international community is respectful of international institutions and international law. The problem is when a powerful country does not believe a ruling by a United Nations body applies to them, little can be done to enforce it.
Israel’s argument at The Hague: We are Incapable of Genocide
January 15, 2024, by: Dr Binoy Kampmark, Australian Independent Media
Israel’s relationship with the United Nations, international institutions and international law has at times bristled with suspicion and blatant hostility. In a famous cabinet meeting in 1955, Prime Minister David Ben-Gurion famously knocked back the suggestion that the United Nations 1947 plan for partitioning Palestine had been instrumental in creating the State of Israel. “No, no, no!” he roared in demur. “Only the daring of the Jews created the state, and not any oom-shmoom resolution.”
In the shadow of the Holocaust, justifications for violence against foes mushroom multiply. Given that international law, notably in war, entails restraint and limits on the use of force, doctrines have been selectively pruned and shaped, landscaped to suit the needs of the Jewish state. When the strictures of convention have been ignored, the reasoning is clipped for consistency: defenders of international law and its institutions have been either missing in the discussion or subservient to Israel’s enemies. They were nowhere to be seen, for instance, when Egypt’s Gamal Abdel Nasser was preparing for war in the spring of 1967. Israel’s tenaciously talented statesman, Abba Eban, reflected in his autobiography about the weakness of the UN in withdrawing troops from the Sinai when pressured by Nasser to do so. It “destroyed the most central hopes and expectations on which we had relied on withdrawing from Sinai.”
…………………………… Israeli authorities are resolute in their calls that Islamic terrorism is the enemy, that its destruction is fundamental for civilisation, and that crushing measures are entirely proportionate. Palestinian civilian deaths might be regrettable but all routes of blame lead to Hamas and its resort to human shields.
These arguments have failed to convince a growing number of countries. One of them is South Africa. On December 29, the Republic filed an application in the International Court of Justice alleging “violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” Various “acts and omissions” by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group.” What Pretoria is seeking is both a review of the merits of the case and the imposition of provisional measures that would essentially modify, if not halt, Israel’s Gaza operation.
Prior to its arguments made before the 15-judge panel on January 12, Israel rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry went so far as to suggest that the court was being exploited, while South Africa was, in essence, “collaborating with a terror group that calls for the destruction of Israel.”
Prime Minister Benjamin Netanyahu, with demagogic rage, claimed that his country had witnessed “an upside-down world. Israel is accused of genocide while it is fighting against genocide.” The country was battling “murderous terrorists who carried out crimes against humanity.” Government spokesman Eylon Levy tried to make it all a matter of Hamas, nothing more, nothing less. “We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law.”
In that innovation lies the problem. Whatever is meant by such statements as those of Israel Defence Forces spokesman, Rear Adm. Daniel Hagari, that “Our war is against Hamas, not against the people of Gaza”, the catastrophic civilian death toll, destruction, displacement and starvation would suggest the contrary. Innovation in war often entails carefree slaughter with a clear conscience.
On another level, the Israeli argument is more nuanced, going to the difficulties of proving genocidal intent. Amichai Cohen of Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute admits that comments from right-wing Israeli ministers calling for the “emigration” of Palestinians from Gaza were not helpful. (They were certainly helpful to Pretoria’s case.) But he insists that the South African argument is based on “classic cherry-picking.” Cohen should know better than resort to the damnably obvious: all legal cases are, by definition, exercises of picking the finest cherries in the orchard.
The Israeli defence team’s oral submissions to the ICJ maintained a distinct air of unreality. Tal Becker, as legal advisor to the Israeli Foreign Ministry, tried to move judicial opinion in his address by drawing upon the man who minted genocide as a term of international law, Raphael Lemkin. Invariably, it was Becker’s purpose to again return to the Holocaust as “unspeakable” and uniquely linked to the fate of the Jews, implying that Jews would surely be incapable of committing those same acts. But here was South Africa, raining on the sacred flame, invoking “this term in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.” Israel, pure; Israel vulnerable; Israel under attack.
In yet another jurisprudential innovation, Becker insisted that the Genocide Convention was not connected in any way to “address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises ‘very serious issues of international law’ and involves ‘enormous suffering’ and ‘continuing loss of life’.” The Convention, rather, was meant “to address a malevolent crime of the most exceptional severity.”
The view is reiterated by another lawyer representing Israel. “The inevitable fatalities and human suffering of any conflict,” submitted Christopher Staker, “is not of itself a pattern of conduct that plausibly shows genocidal intent.” Butcheries on a massive scale would not, in of themselves, suggest such the requisite mental state to exterminate a race, ethnic or religious group.
As for South Africa’s insistence that provisional measures be granted, Staker was unwavering in repeating the familiar talking points. They “would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything.”
Legal tricks and casuistry were something of a blooming phenomenon in Israel’s submissions. South Africa had, according to Becker, submitted “a profoundly distorted factual and legal picture……………………………………………..
Malcom Shaw, a figure known for his expertise in the thorny realm of territorial disputes, did his little bit of legal curation. ………………… The only thing that mattered here, argued Shaw, was the attack of October 7 by Hamas, a sole act of barbarity that could be read in terrifying isolation. That, he claimed was “the real genocide in this situation.”………………………. more https://theaimn.com/israels-argument-at-the-hague-we-are-incapable-of-genocide/#
Craig Murray: Observations on Israel’s defense in the International Court of Justice
In the UK, the BBC and Sky both ran almost all the Israeli case live, having not run any of the South African case live. I believe something similar was true in the USA, Australia and Germany too.
a hardline and uncompromising start. The judges appeared to be paying very close attention when he opened with the 7 October self-defence argument, but very definitely some of them become started to fidget and become uncomfortable when he started to talk of Hamas operating from ambulances and UN facilities. In short, he went too far and I believe he lost his audience at that point.
Malcolm Shaw speaks for Israel because he actually wants Israel to be able to continue killing Palestinian women and children to improve the security of Israel, in his view.
SOTT, Craig Murray, craigmurray.org.uk, Sun, 14 Jan 2024
As with the South African case, according to court procedure the Israeli case was introduced by their “agent”, permanently accredited to the court, Tal Becker of the Israeli Ministry of Foreign Affairs. He opened with the standard formula “it is an honour to appear before you again on behalf of the state of Israel”, managing to imply purely through phrasing and tone of voice that the honour lay in representing Israel, not in appearing before the judges.
Becker opened by going straight to the Holocaust, saying that nobody knew more than Israel why the Genocide Convention existed. 6 million Jewish people had been killed. The Convention was not to be used to cover the normal brutality of war.
The South African case aimed at the delegitimisation of the state of Israel. On 7 October Hamas had committed massacre, mutilation, rape and abduction. 1,200 had been killed and 5,500 maimed. He related several hideous individual atrocity stories and played a recording he stated to be a Hamas fighter boasting on WhatsApp to his parents about committing mass murder, rape and mutilation.
The only genocide in this case was being committed against Israel. Hamas continued to attack Israel, and for the court to take provisional measures would be to deny Israel the right to self-defence. Provisional measures should rather be taken against South Africa and its attempt by legal means to further genocide by its relationship with Hamas. Gaza was not under occupation: Israel had left it with great potential to be a political and economic success. Instead Hamas had chosen to make it a terrorist base.
Hamas was embedded in the civilian population and therefore responsible for the civilian deaths. Hamas had tunnels under schools, hospitals, mosques and UN facilities and tunnel entrances within them. It commandeered medical vehicles for military use.
South Africa had talked of civilian buildings destroyed, but did not tell you they had been destroyed by Hamas booby traps and Hamas missile misfires.
The casualty figures South Africa gave were from Hamas sources and not reliable. They did not say how many were fighters? How many of the children were child soldiers? The application by South Africa was ill-founded and ill-motivated. It was a libel.
This certainly was a hardline and uncompromising start. The judges appeared to be paying very close attention when he opened with the 7 October self-defence argument, but very definitely some of them become started to fidget and become uncomfortable when he started to talk of Hamas operating from ambulances and UN facilities. In short, he went too far and I believe he lost his audience at that point.
Next up was Professor Malcolm Shaw KC. Shaw is regarded as an authority on the procedure of international law and is editor of the standard tome on the subject. This is an interesting facet of the legal profession, where standard reference books on particular topics are regularly updated to include key extracts from recent judges, and passages added or amended to explain the impact of these judgments. Being an editor on this field provides a route to prominence for the plodding and pedantic.
I had come across Shaw in his capacity as a co-founder of the Centre for Human Rights at Essex University. I had given a couple of talks there some twenty years ago on the attacks on human rights of the “War on Terror” and my own whistleblower experience over torture and extraordinary rendition. For an alleged human rights expert, Shaw seemed extraordinarily prone to support the national security interests of the state over individual liberty.
I do not pretend I gave it a great deal of thought. I did not know at that time of Shaw’s commitment as an extreme Zionist and in particular his long term interest in suppressing the rights of the Palestinian people. After 139 states have recognised Palestine as a state, Shaw led for Israel thelegal oppositionto Palestine’s membership of international institutions, including the International Criminal Court. Shaw’s rather uninspired reliance on the Montevideo Convention of 1933 is hardly a legal tour de force, and it didn’t work.
Every criminal deserves a defence, and nobody should hold it against a barrister that they defend a murderer or rapist, as it is important that guilt or innocence is tested by a court. But I think it is fair to state that defence lawyers do not in general defend those accused of murder because they agree with murder and want a murderer to go on murdering. That however is the case here: Malcolm Shaw speaks for Israel because he actually wants Israel to be able to continue killing Palestinian women and children to improve the security of Israel, in his view.
That is the difference between this and other cases, including at the ICJ. Generally the lead lawyers would happily swap sides, if the other side had hired them first. But this is entirely different. Here the lawyers (with the possible exception of ) believe profoundly in the case they are supporting and would never appear for the other side. That is just one more way that this is such an extraordinary case, with so much drama and such vital consequences, not least for the future of international law.
For the reason I have just explained, Shaw’s role here is not that of a simple barrister plying his trade. His attempt to extend the killing should see him viewed as a pariah by decent people everywhere, for the rest of his doubtless highly-paid existence.
Shaw opened up by saying that the South African case continually spoke of context. They talked of the 75 years of the existence of the state of Israel. Why stop there? Why not go back to the Balfour Declaration or the British Mandate over Palestine? No, the context of these events was the massacre of 7 October, and Israel’s subsequent right of self-defence. He produced and read a long quote from mid-October by European Commission President Ursula von Der Leyen, stating that Israel had suffered a terrorist atrocity and had the right of self-defence.
……………………………………………………………. It was South Africa which was guilty of complicity in genocide in cooperation with Hamas. South Africa’s allegations against Israel “verge on the outrageous”.
Israel’s next lawyer was a lady called Galit Raguan from the Israeli Ministry of Justice. She said the reality on the ground was that Israel had done everything possible to minimise civilian deaths and to aid humanitarian relief. Urban warfare always resulted in civilian deaths. It was Hamas who were responsible for destruction of buildings and infrastructure…………………………….
Next up was lawyer Omri Sender. He stated that more food trucks per day now entered Gaza than before October 7. The number had increased from 70 food trucks to 109 food trucks per day. Fuel, gas and electricity were all being supplied and Israel had repaired the sewage systems………………………
Perhaps noting that nobody believed him, Sender stated that the court could not institute provisional measures but rather was obliged to accept the word of Israel on its good intentions because of the Law of the Unilateral Declarations of States……………………………………………………………………………………………………………………………………………
It is important to realise this. Israel is hoping to win on their procedural points about existence of dispute, unilateral assurances and jurisdiction. The obvious nonsense they spoke about the damage to homes and infrastructure being caused by Hamas, trucks entering Gaza and casualty figures, was not serious. They did not expect the judges to believe any of this. The procedural points were for the court. The rest was mass propaganda for the media.
In the UK, the BBC and Sky both ran almost all the Israeli case live, having not run any of the South African case live. I believe something similar was true in the USA, Australia and Germany too.
While the court was in session, Germany has announced it will intervene in the substantial case to support Israel. They argue explicitly that, as the world’s greatest perpetrator of genocide, they are uniquely placed to judge. It is in effect a copyright claim. They are protecting Germany’s intellectual property in the art of genocide. Perhaps they might in future license genocide, or allow Israel to continue genocide on a franchise basis.
I am sure the judges want to get out of this and they may go for the procedural points. But there is a real problem with Israel’s “no dispute” argument. If accepted, it would mean that a country committing genocide can simply not reply to a challenge, and then legal action will not be possible because no reply means “no dispute”. I hope that absurdity is obvious to the judges. But they may of course wish not to notice it…
What do I think will happen? Some sort of “compromise”. The judges will issue provisional measures different to South Africa’s request, asking Israel to continue to take measures to protect the civilian population, or some such guff. Doubtless the State Department have drafted something like this for President of the Court [Joan] Donoghue already.
Comment: As Murray has previously written:
“The President of the Court, Joan Donoghue, is a US State Department, Clinton hack who has never formed an original idea in her life, and I should be astonished if she starts now. I half-expected her strings to actually be visible, emerging from holes in the hall’s magnificent deep relief-panelled wooden ceiling.”
I hope I am wrong. I would hate to give up on international law. One thing I do know for certain. These two days in the Hague were absolutely crucial for deciding if there is any meaning left in notions of international law and human rights. I still believe action by the court could cause the US and UK to back off and provide some measure of relief. For now, let us all pray or wish, each in our way, for the children of Gaza.
Comment: Mr Murray also detailed the immense efforts he went to in order to report on these proceedings:
There was a very good feel at the end of the South African presentation on day one. Everyone felt it had gone extremely well, and left very little room for the court to wriggle away from provisional measures. We left the public gallery, and I went with [Jeremy] Corbyn and [Jean Luc] Mèlenchon to meet the South African delegation. This caused some concern to the security officials, who told us that members of the public had to leave immediately and not meet delegates or speak to the media, who were grouped outside the court but still within the precincts.
…………………………………………………………………………………………………..more https://www.sott.net/article/487825-Craig-Murray-Observations-on-Israels-defense-in-the-International-Court-of-Justice
An international law expert explains why South Africa’s case at the ICJ is so important
A ruling by the International Court of Justice in favor of South Africa, which has accused Israel of genocide, could mean saving thousands of lives in Gaza. The alternative, however, could be devastating and further embolden Israeli violence.
BY YUMNA PATEL https://mondoweiss.net/2024/01/an-international-law-expert-explains-why-south-africas-case-at-the-icj-is-so-important/?fbclid=IwAR0_La2MT5GTGkKo2X56cAEa15B-SPBIOwKnMKznqzCczU0XVSIz_BlNrBE
South Africa and Israel will be appearing before the International Court of Justice, on Thursday, January 11, where the court will begin hearing arguments on whether Israel is committing the crime of Genocide.
The highly anticipated public hearings, which will last for two days, are based on an 84-page appeal submitted by South Africa in December to the ICJ, the top judicial body of the United Nations. In the appeal, South Africa argues that Israel’s military campaign in Gaza is “genocidal in character” and that through both action and intent to commit genocide, Israel has violated the 1948 Genocide Convention.
Both Israel and South Africa are parties to the convention, which came into being on the heels of World War II and the Holocaust. All signatories of the treaty are obligated not to commit genocide, to ensure that it is prevented, and to seek that the crime be prosecuted.
South Africa’s appeal to the ICJ, however, is not just about charging Israel with the crime of genocide – a lengthy process that could take the court months or years. It’s also seeking a more immediate solution by requesting the court institute provisional measures to immediately halt Israel’s military campaign in Gaza.
Essentially, South Africa wants two things: to stop the mass killing of Palestinians in Gaza now and for Israel to be charged with the crime of genocide in the long term. A condensed breakdown and explanation of the 84-page brief can be found here.
Expectedly, Israel has outright denied any accusations of genocide, lambasting the South African appeal as antisemtic “blood libel”. The U.S. has also rebuked South Africa’s appeal, called it “meritless” and “completely without any basis in fact.”
Nevertheless, Israel is pressing forward, sending a carefully crafted legal team to The Hague in the Netherlands to defend Israel’s position that it is not committing genocide in Gaza.
The much-talked about public proceedings, which will take place over the course of two days on Thursday and Friday, January 11th and 12th, are being welcomed by both Palestinians, as well as a number of countries around the world, who have thus far failed to bring about a ceasefire, primarily due to the U.S. veto of UN resolutions calling for a halt to the violence.
Despite the international buzz and anticipation, many in Palestine and around the world remain skeptical as to how much weight an ICJ ruling against Israel could hold due to a long history of Israeli impunity on the global stage and Israel’s well-documented disregard for international law and human rights norms.
Still, many Palestinian international law experts and human rights groups say the ICJ proceedings are significant and could hold serious consequences not only for Israel and Palestine but for the world.
Among them is Dr. Munir Nuseibah, a Palestinian professor of International law at Al-Quds University and the Director of the Al-Quds Human Rights Clinic. Mondoweiss spoke to Dr. Nuseibah about the significance of this case, why people should pay attention to it, and what implications it holds.
Why does this case matter?
The case filed by South Africa is important for a number of reasons. First, Dr. Nuseibah notes, the fact that it was filed at the ICJ in and of itself is significant, being that the court is the highest judicial body that settles disputes between states.
“This is quite significant because it’s… based on an agreement, or treaty that is binding to both South Africa and Israel,” he said, referring to the 1948 Genocide Convention.
“This is important in the history of the Palestinian cause, since we haven’t had an opportunity to get a binding international decision on any of the important questions that we have been dealing with, including for example, the issue of the Palestinian refugees, the [Israeli] occupation, etc,” Dr. Nuseibah continued.
The last time the ICJ made a decision in relation to Palestine was a 2004 advisory opinion that found Israel’s separation wall, which at that stage was still early on in its construction, violated international law and should be torn down.
However, because that decision was a non-binding advisory opinion, Israel was not obligated to stop construction or take down the wall. Instead, Israel continued constructing the wall, which today spans across hundreds of kilometers, cutting off Palestinians from their land and swallowing up swaths of Palestinian territory.
This case, Dr. Nuseibah says, would be different, as the resulting decision from this week’s proceedings would be binding, and if the court rules in favor of South Africa, it would mean that under international law, Israel would be obligated to end its military campaign in Gaza in the short term, and in the long term, potentially provide material reparations to the victims of its genocide.
The case is also significant as a symbolic measure as well. That, in the face of an ongoing genocide, which has been well documented by Palestinians and international human rights organizations alike, the world must intervene to stop it.
“If there is no serious intervention, and if the United Nations, the world, and what we call the international community is going to continue to be silenced and made inactive, and in a certain way deactivated and demobilized, this horror will continue,” Dr. Nusaibah said, not just in Palestine but around the world.
“To not only be accused of genocide, but to be charged by the court, and to be seen as a country guilty of genocide is very important,” he said. “In my opinion, everything that happens in the International Court of Justice now, is likely to influence thousands of lives in the future.
So whatever these judges will decide will actually be a question of life and death for many, many Palestinians.”
What will South Africa be arguing on Thursday?
The crux of South Africa’s argument is that Israel is committing genocide in Gaza and that it is violating its obligations under the 1948 Convention on the Prevention and Punishment of Genocide, which defines the crime as “acts intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.”
South Africa’s argument hinges on proving that Israel is not only committing acts of genocide in Gaza but that there is a clear intent on Israel’s part to commit genocide – the latter being a significant focus of the 84-page brief, which listed off an array of quotes from Israeli politicians, officials, and public figures using genocidal language when speaking about Israel’s campaign in Gaza.
“[South Africa’s] first argument will involve the speeches and quotes basically from Israeli officials who have been using genocidal language from the very first day actually, from October 7th,” Dr. Nuseibah said.
“In criminal law it’s not enough to do something, but you have to intend to do something. And one of the signs of intent, are the things you say. So these quotes from Israeli officials will be used to show that Israel has been calling for genocide,” he continued.
And, of course, South Africa will be providing evidence of what it says are clear genocidal acts carried out by Israel in Gaza, such as “bombing civilians, heavily targeting homes, targeting hospitals, targeting cultural centers, targeting universities, schools, etc,” Dr. Nuseibah detailed.
“So all of these targets that the Israeli army has destroyed over the past months, and of course the civilian casualties, the human beings who have been murdered or injured or made disabled, [Israel] using hunger as a weapon, etc. – all of that will be a very important part of the facts South Africa will present,” he said, adding that the denial of fuel and electricity, the siege on 2 million civilians, and the forcible displacement of Palestinians in Gaza is also “an important element of genocide and especially in this case.”
What will Israel’s legal defense look like?
While there are 84 pages to give us an insight into South Africa’s case, it’s not as apparent what exactly Israel’s defense will consist of.
If the past few months have been any indication, however, during which Israel has denied any wrongdoing in Gaza, justified it as self-defense, and has actually accused Hamas of genocide for its October 7th attack – some assumptions can be made as to how Israel will approach it’s defense.
First, Israel’s primary strategy, Dr. Nuseibah says, will be to “deny, deny, deny.”
“Israel will deny everything that South Africa claims,” Dr. Nuseibah said. “It will deny that it has starved people, or that it is trying to starve people. It will deny that it is not allowing humanitarian aid into Gaza, by showing examples where it actually did allow some trucks to enter,” he continued, noting that what little humanitarian aid has been allowed into Gaza has been critically insufficient to address the needs of the more than 2 million people trapped in the strip.
“It [Israel] will talk about any attempts they made in any of their operations to ‘reduce civilian casualties’, whether by warning civilians in certain places,” Dr. Nuseibah said, referring to Israel’s practice of dropping leaflets to notify civilians that their area is going to be attacked, or by providing QR codes and maps of “safe zones” and “combat zones” in Gaza – all practices that have been widely criticized both as insufficient to save civilian lives, and as a PR move by Israel to save face in front of the international community.
At the time of publication, 96 days after Israel began its bombardment on Gaza, more than 23,000 Palestinians have been killed, the vast majority of them civilians.
“So, Israel’s strategy will be to deny everything, because there is nothing else they can do or say,” Dr. Nuseibah said. “It is a longtime strategy and practice of Israel that we are used to. Israel always denies its crimes. Even until today, Israel denies the Nakba, that is the official position of Israel, to deny it.”
While Israel has focused much of its propaganda campaign on accusing Hamas, and supporters of the Palestinian cause in general, of carrying out or advocating for the genocide of Israelis and Jewish people, Dr. Nuseibah said he doubts that will be a feature of Israel’s arguments at the ICJ.
“I doubt that they will do this or bring this up, because if they do, then they would have to present evidence. They would have to allow an open investigation into what happened on October 7th,” Dr. Nuseibah said, noting that Israel has historically prevented access to independent investigators seeking to probe potential crimes committed in the occupied Palestinian territory.
How will this impact Palestinian lives right now?
While the deliberations on whether Israel is guilty of genocide in Gaza or not could take years, South Africa’s case is expected to yield a much more immediate and time-sensitive result.
As part of its appeal to the court, South Africa is seeking an emergency interim decision by the court, or “provisional measures,” to order the Israeli military to cease its campaign in Gaza immediately, stop the displacement of Palestinians, and allow for the entry of adequate humanitarian aid into Gaza. The court could make that decision in as little as a few days or weeks.
These provisional measures, Dr. Nuseibah says, are some of the most critical elements to the case and have the biggest potential to change the course of the unfolding genocide in Gaza.
“This is very time sensitive. Every day that we lose, we are losing more lives. We are losing more casualties. There are more homes that are demolished. There are more days that children are not going to school,” he continued.”There is a lot of loss every single day of civilian life, and there is no human being in Gaza who is not heavily influenced by what is happening.”
“All of the provisional requests that South Africa has made are there to save lives immediately. And I do expect that the court will take these measures. History has shown that the ICJ has given these provisional measures in similar situations, even with less casualties and less risk,” Dr. Nuseibah said.
“So I do expect that the court will decide provisional measures, which would mean a ceasefire, which is the most important thing right now, as well as stopping the displacement, allowing for the entry of aid, and stopping the continuous demolition of Gaza.”
Israel has ignored international law before, what will be different this time?
Continue reading‘The Evidence of Genocide Is Not Only Chilling, It Is Also Overwhelming and Incontrovertible’. Quotes from International Court of Justice
by SCHEERPOST staff, https://scheerpost.com/2024/01/12/the-evidence-of-genocide-is-not-only-chilling-it-is-also-overwhelming-and-incontrovertible/
The World Court will hear the case on Jan. 11 and 12 at The Hague.
Notable quotes from Jan. 11 hearing
From South African attorney Tembeka Ngcukaitobi:
“There is an extraordinary feature in this case: that Israel’s political leaders, military commanders, and persons holding official positions have systematically and in explicit terms declared their genocidal intent… And these statements are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.”
“What state would admit to a genocidal intent? Yet the distinctive feature of this case has not been the silence as such but the reiteration and repetition of genocidal speech throughout every sphere of state in Israel.”
“We remind the court of the identity and authority of the genocidal inciters: the prime minister, the president the minister of defense, the minister of national security, the minister of energy and infrastructure, members of the Knesset, senior army officials, and foot soldiers… The evidence of genocidal intent is not only chilling, it is also overwhelming and incontrovertible.”
“Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare. 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, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall. This conduct renders essentials to life unobtainable.“
“…the level of Israel’s killing is so extensive that nowhere is safe in Gaza. … Palestinians in Gaza are subjected to relentless bombing wherever they go. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families. They have been killed if they failed to evacuate. In the places to which they have fled, and even while they attempted to flee along, Israeli declared safe routes.”
“Israel has killed an unparalleled and unprecedented number of civilians with the full knowledge of how many civilian lives each bomb will take.“
The Case for Genocide
A ruling by the court could be years away. But South Africa is asking for provisional measures that would demand Israel cease its military assault – in essence a permanent ceasefire. This decision could come within two or three weeks.
The International Court of Justice may be all that stands between the Palestinians in Gaza and genocide.
By Chris Hedges /ScheerPost, https://scheerpost.com/2024/01/12/chris-hedges-the-case-for-genocide/
The exhaustive 84-page brief submitted by South Africa to the International Court of Justice (ICJ) charging Israel with genocide is hard to refute. Israel’s campaign of indiscriminate killing, wholesale destruction of infrastructure, including housing, hospitals and water treatment plants, along with its use of starvation as a weapon, accompanied by genocidal rhetoric from its political and military leaders who speak of destroying Gaza and ethnically cleansing the 2.3 million Palestinians, makes a strong case against Israel for genocide.
Israel’s smearing of South Africa as “the legal arm” of Hamas exemplifies the bankruptcy of its defense, a smear replicated by those who claim that demonstrations held to call for a ceasefire and protect Palestinian human rights are “anti-Semitic.” Israel, its genocide live streamed to the world, has no substantial counter argument.
But that does not mean the judges on the court will rule in South Africa’s favor. The pressure the U.S. will bring – Secretary of State Antony Blinken has called the South African charges “meritless” – on the judges, drawn from the member states of the U.N., will be intense.
A ruling of genocide is a stain that Israel – which weaponizes the Holocaust to justify its brutalization of the Palestinians – would find hard to remove. It would undercut Israel’s insistence that Jews are eternal victims. It would shatter the justification for Israel’s indiscriminate killing of unarmed Palestinians and construction of the world’s largest open air prison in Gaza, along with the occupation of the West Bank and East Jerusalem. It would sweep away the immunity to criticism enjoyed by the Israel lobby and its Zionist supporters in the U.S., who have successfully equated criticisms of the “Jewish State” and support for Palestinian rights with anti-Semitism.
Over 23,700 Palestinians, including over 10,000 children, have been killed in Gaza since Oct. 7, when Hamas and other resistance fighters breached the security barriers around Gaza. Some 1,200 people were killed – there is strong evidence that some of the victims were killed by Israeli tank crews and helicopter pilots that intentionally targeted the some 200 hostages along with their captors. Thousands more Palestinians are missing, presumed buried under the rubble. Israeli attacks have left over 60,000 Palestinians wounded and maimed, the majority of them women and children. Thousands more Palestinian civilians, including children, have been arrested, blindfolded, numbered, beaten, forced to strip to their underwear, loaded onto trucks and transported to unknown locations.
A ruling by the court could be years away. But South Africa is asking for provisional measures that would demand Israel cease its military assault – in essence a permanent ceasefire. This decision could come within two or three weeks. It is a decision that is not based on the final ruling by the court, but on the merits of the case brought by South Africa. The court would not, by demanding Israel end its hostilities in Gaza, define the Israeli campaign in Gaza as genocide. It would confirm that there is the possibility of genocide, what the South African lawyers call acts that are “genocidal in character.”
The case will not be determined by the documentation of specific crimes, even those defined as war crimes. It will be determined by genocidal intent – the intent to eradicate in whole or in part, a national, ethnic, racial or religious group – as defined in the Genocide Convention.
These acts collectively include the targeting of refugee camps and other densely packed civilian areas with 2,000-pound bombs, the blocking of humanitarian aid, the destruction of the health care system and its effects on children and pregnant women – the U.N. estimates there are around 50,000 pregnant women in Gaza, and that more than 160 babies are delivered every day – as well as repeated genocidal statements by leading Israeli politicians and generals.
Prime Minister Benjamin Netanyahu equated Gaza with Amalek, a nation hostile to the Israelites in the Bible, and cited the Biblical injunction to kill every Amalek man, woman, child or animal. Defence Minister Yoav Gallant called Palestinians “human animals.” Israeli President Isaac Herzog stated, as the South African lawyers told the court, that everybody in Gaza is responsible for what happened on Oct. 7 because they voted for Hamas, although half the population in Gaza are children who are too young to vote. But even if the entire population of Gaza did vote for Hamas this does not make them a legitimate military target. They are still, under the rules of war, civilians, and entitled to protection. They are also entitled under international law to resist their occupation via armed struggle.
The South African lawyers, who compared Israel’s crimes with those carried out by the apartheid regime in South Africa, showed the court a video of Israeli soldiers celebrating and calling for the death of Palestinians – they sang as they danced “There are no uninvolved civilians” – as evidence that genocidal intent descends from the top to the bottom of the Israeli war machine and political system. They provided the court with photos of mass graves where bodies were buried “often unidentified.” No one – including newborns – was spared, the South African lawyer Adila Hassim, Senior Counsel, explained to the court.
The South African lawyers told the court the “first genocidal act is mass killing of Palestinians in Gaza.” The second genocidal act, they stated, is the serious bodily or mental harm inflicted on Palestinians in Gaza in violation of Article 2B of the Genocide Convention. Tembeka Ngcukaitobi, another lawyer and legal scholar representing South Africa, argued that “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.”
Lior Haiat, spokesperson for the Israeli Ministry of Foreign Affairs, called Thursday’s three hour hearing one of the “greatest shows of hypocrisy in history, compounded by a series of false and baseless claims.” He accused South Africa of seeking to allow Hamas to return to Israel to “commit war crimes.”
Israeli jurists, in their response on Friday, called the South African charges “unfounded, “absurd” and amounting to “libel.” Israel’s legal team said it had – despite U.N. reports of widespread starvation and infectious diseases from a breakdown in sanitation and shortage of clean water – not impeded humanitarian assistance. Israel defended attacks on hospitals, calling them “Hamas command centers.” It told the court it was acting in self-defense. “The inevitable fatalities and human suffering of any conflict is not of itself a pattern of conduct that plausibly shows genocidal intent,” said Christopher Staker, a barrister for Israel.
Israeli leaders accuse Hamas with carrying out genocide, although legally if you are the victims of genocide you are not permitted to commit genocide. Hamas is also not a state. It is not, therefore, a party to the Genocide Convention. The Hague, for this reason, has no jurisdiction over the organization. Israel also claims the Palestinians are warned to evacuate areas that will come under attack and provided with “safe areas,” although as the South African lawyers documented, “safe areas” are routinely bombed by Israel with numerous civilian casualties.
Israel and the Biden administration intend to prevent any temporary injunction by the court, not because the court can force Israel to halt its military assaults, but because of the optics, which are already disastrous. The ICJ’s ruling depends on the Security Council for enforcement – which given the veto power by the U.S., renders any ruling against Israel moot. The second objective of the Biden administration is to make sure Israel is not found guilty of committing genocide. It will be unrelenting in this campaign, heavily pressuring the governments that have jurists on the court not to find Israel guilty. Russia and China, who have jurists in The Hague, are battling their own charges of genocide and may decide it is not in their interests to find Israel guilty.
The Biden administration is playing a very cynical game. It insists it is trying to halt what, by its own admission, is Israel’s indiscriminate bombing of Palestinians, while bypassing Congress to speed up the supply of weapons to Israel, including “dumb” bombs. It insists it wants the fighting in Gaza to end while it vetoes ceasefire resolutions at the U.N. It insists it upholds the rule of law while it subverts the legal mechanism that can halt the genocide.
Cynicism pervades every word Biden and Blinken utter. This cynicism extends to us. Our revulsion for Donald Trump, the Biden White House believes, will impel us to keep Biden in office. On any other issue this might be the case. But it cannot be the case with genocide.
Genocide is not a political problem. It is a moral one. We cannot, no matter what the cost, support those who commit or are accomplices to genocide. Genocide is the crime of all crimes. It is the purest expression of evil. We must stand unequivocally with Palestinians and the jurists from South Africa. We must demand justice. We must hold Biden accountable for the genocide in Gaza.
Israel Is Terrified the World Court Will Decide It’s Committing Genocide
Public hearings on South Africa’s request for provisional measures will take place on January 11 and 12 at the ICJ which is located in the Peace Palace in The Hague, Netherlands. The hearings will be livestreamed from 4:00-6:00 a.m. Eastern/1:00-3:00 a.m. Pacific on the Court’s website and on UN Web TV. The court could order provisional measures within a week after the hearings.
Other States Parties to the Genocide Convention Can Join South Africa’s Case
South Africa, a party to the Genocide Convention, charged Israel with genocide in the International Court of Justice.
By Marjorie Cohn / Truthout, January 8, 2024, https://scheerpost.com/2024/01/08/israel-is-terrified-the-world-court-will-decide-its-committing-genocide/
For nearly three months, Israel has enjoyed virtual impunity for its atrocious crimes against the Palestinian people. That changed on December 29 when South Africa, a state party to the Genocide Convention, filed an 84-page application in the International Court of Justice (ICJ, or World Court) alleging that Israel is committing genocide in Gaza.
South Africa’s well-documented application alleges that “acts and omissions by Israel … are genocidal in character, as they are committed with the requisite specific intent … to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
Israel is mounting a full-court press to prevent an ICJ finding that it’s committing genocide in Gaza. On January 4, the Israeli Foreign Ministry instructed its embassies to pressure politicians and diplomats in their host countries to make statements opposing South Africa’s case at the ICJ.
In its application, South Africa cited eight allegations to support its contention that Israel is perpetrating genocide in Gaza. They include:
(1) Killing Palestinians in Gaza, including a large proportion of women and children (approximately 70 percent) of the more than 21,110 fatalities and some appear to have been subjected to summary execution;
(2) Causing serious mental and bodily harm to Palestinians in Gaza, including maiming, psychological trauma, and inhuman and degrading treatment;
(3) Causing the forced evacuation and displacement of about 85 percent of Palestinians in Gaza — including children, the elderly and infirm, and the sick and wounded. Israel is also causing the massive destruction of Palestinian homes, villages, towns, refugee camps and entire areas, which precludes the return of a significant proportion of the Palestinian people to their homes;
(4) Causing widespread hunger, starvation and dehydration to the besieged Palestinians in Gaza by impeding sufficient humanitarian assistance, cutting off sufficient food, water, fuel and electricity, and destroying bakeries, mills, agricultural lands and other means of production and sustenance;
(5) Failing to provide and restricting the provision of adequate clothing, shelter, hygiene and sanitation to Palestinians in Gaza, including 1.9 million internally displaced persons. This has compelled them to live in dangerous situations of squalor, in conjunction with routine targeting and destruction of places of shelter and killing and wounding of persons who are sheltering, including women, children, the elderly and the disabled;
(6) Failing to provide for or ensure the provision of medical care to Palestinians in Gaza, including those medical needs created by other genocidal acts that are causing serious bodily harm. This is occurring by direct attacks on Palestinian hospitals, ambulances and other healthcare facilities, the killing of Palestinian doctors, medics and nurses (including the most qualified medics in Gaza) and the destruction and disabling of Gaza’s medical system;
(7) Destroying Palestinian life in Gaza, by destroying its infrastructure, schools, universities, courts, public buildings, public records, libraries, stores, churches, mosques, roads, utilities and other facilities necessary to sustain the lives of Palestinians as a group. Israel is killing whole families, erasing entire oral histories and killing prominent and distinguished members of society;
(8) Imposing measures intended to prevent Palestinian births in Gaza, including through reproductive violence inflicted on Palestinian women, newborns, infants and children.
South Africa cited myriad statements by Israeli officials that constitute direct evidence of an intent to commit genocide:
“Gaza won’t return to what it was before. We will eliminate everything,” Israel’s Defense Minister Yoav Gallant said. “If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.”
Avi Dichter, Israel’s Minister of Agriculture, declared, “We are now actually rolling out the Gaza Nakba,” a reference to the 1948 ethnic cleansing of Palestinians to create the state of Israel.
“Now we all have one common goal — erasing the Gaza Strip from the face of the earth,” Nissim Vaturi, the Deputy Speaker of the Knesset and Member of the Foreign Affairs and Security Committee proclaimed.
Israel’s Strategy to Defeat South Africa’s Case at the ICJ
Continue readingA Visit to Belmarsh Prison, Where Julian Assange Awaits His Final Appeal Against Extradition to the US
The Wikileaks founder says he fears his own imprisonment, US government surveillance, and restrictions on the group’s funding have effectively scared off potential whistleblowers.
The Nation, CHARLES GLASS, 2 Jan 24
MP BELMARSH—It is 2:30 PM on Wednesday, December 13, when Julian Assange strides into the visitors’ area. He stands out in the column of 23 prisoners for his height—6′ 2″—and flowing white locks with trimmed beard. He squints, looking for a familiar face among the wives, sisters, sons, and fathers of the other inmates. I am waiting, as assigned, at D-3, one of about 40 sets of small coffee tables surrounded by three upholstered chairs—two blue, one red—screwed into the floor of what looks like a basketball court. We spot each other, walk forward, and embrace. It is the first time I have seen him in six years. I blurt, “You’re pale.” Through a mischievous smile I remember from past meetings, he jokes, “They call it prison pale.”
He has not been outdoors—apart from a minute when police dragged him into a paddy wagon—since he took refuge in London’s cramped Ecuadorian Embassy in June 2012. The embassy’s French windows had afforded glimpses of sky. Here at Belmarsh maximum security prison in southeast London, his abode since April 11, 2019, he has not seen the sun. Warders confine him to a cell for 23 out of every 24 hours. His single hour of recreation takes place within four walls, under supervision. His paleness is best described as deathly……………………………………………………………………………………………………………………………..
Julian and I sit down, face to face, me on the red chair, he on one of the blues. Above us, glass globes hide cameras that record the interactions between inmates and their guests.
…………………………. Julian had thought prison meant communal meals at long tables, as in the movies. Belmarsh’s warders shove the food into the cells for prisoners to eat alone. It is hard to make friends that way. He has been there longer than any other prisoner apart from an old man who had served seven years to his four and a half. There are occasional suicides, he tells me, including one the night before.
……………………………… I ask whether he still has the radio he had struggled to obtain in his first year. He did, but it was not working due to a defective plug. Regulations permit each prisoner to have a radio purchased from prison stores. The authorities, however, said no radios were available for him. When I heard about it, I sent him a radio. It was returned. I then sent him a book on how to make a radio. That too was returned………………………………………………………………
How did he, a news addict, keep in touch? The prison allows him to read printouts of news stories, and friends write to him. With the invasions of Ukraine and Gaza, I say, now is an important time for whistleblowers to send documents to WikiLeaks. He regrets that WikiLeaks is no longer able to expose war crimes and corruption as in the past. His imprisonment and US government surveillance and restrictions on WikiLeaks’ funding wards off potential whistleblowers. He fears that other media outlets are not filling the vacuum.
Belmarsh does not offer him education programs or communal activity, like orchestra practice, sports, or publishing a prison journal, that are standard at many other prisons. The regime is punitive; although Belmarsh’s 700-odd inhabitants are on remand, awaiting trial or appeal. They are Category A prisoners, those who “pose the most threat to the public, the police or national security” and stand accused of terrorism, murder, or sexual violence.
We talk about Christmas, which is just another day in Belmarsh: no turkey, no carols, no presents. The prison is closed to visitors on Christmas Day and the day after, and the prison has informed his wife, Stella Moris, that she and their two young sons, Gabriel and Max, may not see him on Christmas Eve. He can attend Catholic Mass celebrated by the Polish chaplain, who has become a friend.
………….Apart from occasional visiting days, his days are all the same: the confined space, the loneliness, the books, the memories, the hope that his lawyers’ appeal against extradition and life imprisonment in the United States will succeed……….. https://www.thenation.com/article/activism/julian-assange-wikileaks-belmarsh-prison/
Constitutional Violations: Julian Assange, Privacy and the CIA
December 28, 2023, Dr Binoy Kampmark, https://theaimn.com/constitutional-violations-julian-assange-privacy-and-the-cia/
As a private citizen, the options for suing an intelligence agency are few and far between. The US Central Intelligence Agency, as with other members of the secret club, pour scorn on such efforts. To a degree, such a dismissive sentiment is understandable: Why sue an agency for its bread-and-butter task, which is surveillance?
This matter has cropped up in the US courts in what has become an international affair, namely, the case of WikiLeaks founder and publisher, Julian Assange. While the US Department of Justice battles to sink its fangs into the Australian national for absurd espionage charges, various offshoots of his case have begun to grow. The issue of CIA sponsored surveillance during his stint in the Ecuadorian embassy in London has been of particular interest, since it violated both general principles of privacy and more specific ones regarding attorney-client privilege. Of particular interest to US Constitution watchers was whether such actions violated the reasonable expectation of privacy protected by the Fourth Amendment.
Four US citizens took issue with such surveillance, which was executed by the Spanish security firm Undercover (UC) Global and its starry-eyed, impressionable director David Morales under instruction from the CIA. Civil rights attorney Margaret Ratner Kunstler and media lawyer Deborah Hrbek, and journalists John Goetz and Charles Glass, took the matter to the US District Court of the Southern District of New York in August last year. They had four targets of litigation: the CIA itself, its former director, Michael R. Pompeo, Morales and his company, UC Global SL.
All four alleged that the US Government had conducted surveillance on them and copied their information during visits to Assange in the embassy, thereby violating the Fourth Amendment. In doing so, the plaintiffs argued they were entitled to money damages and injunctive relief. The government moved to dismiss the complaint as amended.
On December 19, District Judge John G. Koeltl delivered a judgment of much interest, granting, in part, the US government’s motion to dismiss but denying other parts of it. Before turning to the relevant features of Koeltl’s reasons, various observations made in the case bear repeating. The judge notes, for instance, Pompeo’s April 2017 speech, in which he “‘pledged that his office would embark upon a ‘long term’ campaign against WikiLeaks.’” He is cognisant of the plaintiffs’ claims “Morales was recruited to conduct surveillance on Assange and his visitors on behalf of the CIA and that this recruitment occurred at a January 2017 private security industry convention at the Las Vegas Sands Hotel in Las Vegas, Nevada.”
From that meeting, it is claimed that “Morales created an operations unit, improved UC Global’s systems, and set up live streaming from the United States so that surveillance could be accessed instantly by the CIA.” The data gathered from UC Global “was either personally delivered to Las Vegas; Washington, D.C.; and New York City by Morales (who travelled to these locations more than sixty times in the three years following the Las Vegas convention) or placed on a server that provided external access to the CIA.”
Koeltl preferred to avoid deciding on the claims that Morales and UC Global were, in fact, “acting as agents of Pompeo and the CIA.” Such matters were questions of fact “that cannot be decided on a motion to dismiss.”
A vital issue in the case was whether the plaintiffs had standing to sue the CIA in the first place. Citing the case of ACLU v Clapper, which involved a challenge to the National Security Agency’s bulk telephone metadata collection program, Koeltl accepted that they did. In doing so, he rejected a similar argument made by the government in Clapper – that the injuries alleged were simply “too speculative and generalized” and that the information gathered via surveillance would necessarily even be used against them. “In this case, the plaintiffs need not allege, as the Government argues, that the Government will imminently use their information collected at the Ecuadorean Embassy in London.” If the search of the conversations and electronic devices along with the seizure of the contents of the electronic devices “were unlawful, the plaintiffs have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by favorable ruling.”
Less satisfactory for the plaintiffs was the finding they had no reasonable expectation of privacy regarding their conversations with the publisher given that “they knew Assange was surveilled even before the CIA’s alleged involvement.” The judge thought it significant that they did “not allege that they would not have met Assange had they known their conversations would be surveilled.” Additionally, it “would not be recognized as reasonable by society” to have expected conversations held with Assange at the embassy in London to be protected, given such societal acceptance of, for instance video surveillance in government buildings.
This reasoning is faulty, given that the visits by the four plaintiffs to the embassy did not take place with their knowledge of the operation being conducted by UC Global with CIA blessing. In a general sense, anyone visiting the embassy could not help but suspect that Assange might be the object of surveillance, but to suggest something akin to a waiver of privacy rights on the part of attorneys and journalists aiding a persecuted publisher is an odd turn.
The US Government also succeeded on the point that the plaintiffs had no reasonable expectation to privacy regarding their passports or their devices they voluntarily left at the Embassy reception desk. In doing so, they “assumed the risk that the information may be conveyed to the Government.” Those visiting embassies must, it would seem, be perennially on guard.
That said, the plaintiffs convinced the judge that they had “sufficient allegations that the CIA and Pompeo, through Morales and UC Global, violated their reasonable expectation to privacy in the contents of their electronic devices.” The government even went so far as to concede that point.
Unfortunately for the plaintiffs, the biggest fish was let off the hook. The plaintiffs had attempted to use the 1971 US Supreme Court case of Bivens to argue that the former CIA director be held accountable and liable for violating constitutional rights. Koeltl thought the effort to extend the application of Bivens inappropriate in terms of the high standing nature of the defendant and the context. “As a presidential appointee confirmed by Congress […] Defendant Pompeo is in a different category of defendant from a law enforcement agent of the Federal Bureau of Narcotics.” More’s the pity.
Leaving aside some of the more questionable turns of reasoning in Koeltl’s judgment, public interest litigants and activists can take heart from the prospect that civil trials against the CIA for violations of the US Constitution are no longer unrealistic. “We are thrilled,” declared Richard Roth, the plaintiffs’ attorney, “that the court rejected the CIA’s efforts to silence the plaintiffs, who merely seek to expose the CIA’s attempt to carry out Pompeo’s vendetta against WikiLeaks.” The appeals process, however, is bound to be tested.
Former chair of Ohio utility regulator surrenders in $60 million bribery scheme linked to energy bill
PBS Newshour , Julie Carr Smyth, Associated Press 27 Dec 23
COLUMBUS, Ohio (AP) — Ohio’s former top utility regulator surrendered Monday in connection with a $60 million bribery scheme related to a legislative bailout for two Ohio nuclear power plants that has already resulted in a 20-year prison sentence for a former state House speaker.
Sam Randazzo, former chair of the Public Utilities Commission of Ohio, self-surrendered at U.S. District Court in Cincinnati after being charged in an 11-count indictment that was returned on Nov. 29, U.S. Attorney Kenneth L. Parker’s office announced. Randazzo was scheduled for an initial court appearance later in the day.
“Today’s indictment outlines an alleged scheme in which a public regulatory official ignored the Ohio consumers he was responsible for protecting, instead taking a bribe from an energy company seeking favors,” FBI Cincinnati Special Agent in Charge J. William Rivers said in a statement.
Randazzo, 74, resigned in November 2020 after FBI agents searched his Columbus townhome and FirstEnergy revealed in security filings what it said were bribery payments of $4.3 million for his future help at the commission a month before Republican Gov. Mike DeWine nominated him as Ohio’s top utility regulator.
He faces one count of conspiring to commit travel act bribery and honest services wire fraud, two counts of travel act bribery, two counts of honest services wire fraud, one count of wire fraud and five counts of making illegal monetary transactions.
A message seeking comment was left for his lawyer. If convicted as charged, the defendant could face up to 20 years in prison.
Ohio Consumers’ Counsel Maureen Willis, who represents the state’s utility ratepayers, said the indictment was “an important first step to bring justice to Ohio utility consumers” — but that more is needed.
“It underscores the need for near-term reform of the PUCO selection process that led to his appointment as Chair of the PUCO,” Willis said in a statement. “OCC’s calls for reform so far have gone unanswered. Ohioans deserve better from the public officials in this state.”
The long-awaited indictment marks the latest development in what has been labeled the largest corruption case in Ohio history.
Former Ohio House Speaker Larry Householder was sentenced in June to 20 years in prison for his role in orchestrating the scheme, and lobbyist Matt Borges, a former chair of the Ohio Republican Party, was sentenced to five years.
The U.S. attorney’s office in Cincinnati indicted three others on racketeering charges in July 2020.
Lobbyist Juan Cespedes and Jeffrey Longstreth, a top Householder political strategist, pleaded guilty in October 2020. The third person arrested, statehouse lobbyist Neil Clark, pleaded not guilty before dying by suicide in March 2021. The dark money group used to funnel FirstEnergy money, Generation Now, also pleaded guilty to a racketeering charge in February 2021.
All were accused of using the $60 million in secretly funded FirstEnergy cash to get Householder’s chosen Republican candidates elected to the House in 2018 and then to help him get elected speaker in January 2019.
The money was then used to win passage of the tainted energy bill, House Bill 6, and to conduct what authorities have said was a $38 million dirty-tricks campaign to prevent a repeal referendum from reaching the ballot…………………………………….. more https://www.pbs.org/newshour/nation/former-chair-of-ohio-utility-regulator-surrenders-in-60-million-bribery-scheme-linked-to-energy-bill
Tokyo High Court holds Japan government not liable for Fukushima nuclear disaster
Sean Nolan | Southwestern Law School, US, DECEMBER 28, 2023
Tokyo’s High Court found the government of Japan not liable Tuesday for damages related to the 2011 Fukushima nuclear disaster and associated mass evacuations, leaving responsibility solely with plant operator the Tokyo Electric Power Co. (TEPCO).
The ruling also reduced the damages amounts of a previous court order from $414,400 to $165,000 for 44 of 47 petitioners. The decision mirrors a previous ruling in 2022 which found that the government “was highly unlikely to been able to prevent the flooding” that damaged the plant. Ultimately, the court held that more stringent regulatory actions would have been insufficient to prevent the disaster since the size, direction and scale of the tsunami exceeded estimations for such an event. This is the latest in a series of decisions with different outcomes over the last several years including court cases in 2020 and 2017 which litigated the government’s role in failing to prevent the disaster. There is also a 2022 court case that found TEPCO executives personally liable.
Motomitsu Nakagawa, a lawyer, representing the evacuees expressed dismay with the decision and raised the possibility of another appeal calling the decision a “copy and paste” of the previous Supreme Court ruling. The nuclear disaster has already caused $82 billion in damages to victims, decommissioning work and storage for contaminated materials. While TEPCO has been responsible for all the decommissioning, including contaminant storage, it’s financial position has deteriorated over the last few years amid the massive costs associated with the work and multiple postponements due to technological challenges.
Legal fallout has also extended to the cleanup itself with court cases from South Korea fisheries and Japanese fisherman over the release of radioactive wastewater into the Pacific Ocean. The discharge also sparked international concern from neighboring countries and protests from activists who fear pollution and widespread destruction of wildlife and marine ecosystems.
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Tokyo court holds only the utility responsible to compensate Fukushima evacuees, and reduces damages
A Tokyo court has ruled that only the operator of the tsunami-wrecked
Fukushima nuclear power plant had to pay damages to dozens of evacuees,
relieving the government of responsibility. Plaintiffs criticized the
ruling as belittling their suffering and the severity of the disaster. The
Tokyo High Court also slashed the amount to half of a lower court’s
decision, ordering the Tokyo Electric Power Company Holdings, known as
TEPCO, to pay a total of 23.5 million yen ($165,000) to 44 of the 47
plaintiffs.
AP News 27th Dec 2023
1 This Month
petition to oppose the rapid increase of space-military industry threatening Jeju Island and the region.
[Petition by April 19th (KST)] Stop the joint military-Hanwha Systems-Jeju Provincial Government Sea Launch!
Chernobyl: The Lost Tapes – A good documentary on Chernobyl on SBS available On Demand for the next 3 weeks– https://www.sbs.com.au/ondemand/tv-program/chernobyl-the-lost-tapes/2352741955560
of the week–London Campaign for Nuclear Disarmament
Tell the Ukrainian Government to Drop Prosecution of Peace Activist Yurii Sheliazhenko
To see nuclear-related stories in greater depth and intensity – go to https://nuclearinformation.wordpress.com
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