Expert

Diana Buttu
Human rights attorney and political analyst, former advisor to Palestinian Authority President and Palestine Liberation Organization Chairman Mahmoud Abbas and Palestinian negotiators, and Palestinian citizen of Israel.

 

Q&A 

Question: What is the International Court of Justice (ICJ) and how does it differ from the International Criminal Court (ICC)?

Diana Buttu: The International Court of Justice is part of the United Nations system and deals with legal disputes between states. The International Criminal Court, which Israel does not recognize the jurisdiction of, deals with claims against individuals. Israel signed onto the UN Genocide Convention, as did South Africa. Therefore the ICJ has the jurisdiction to deal with the petition being brought by South Africa.


Q: Why is South Africa filing the petition before the ICJ? What is being requested?

DB: Any country that is a signatory to the Genocide Convention can file a petition to the ICJ. They do not need to be directly affected. That said, it is very powerful that South Africa, a country that lived under a racist apartheid regime, is making a claim against the apartheid regime of Israel.

South Africa is seeking an expedited hearing and is hoping that the ICJ will issue a ruling calling upon Israel to immediately halt all military attacks and allow food and other humanitarian supplies to enter Gaza. To that end, South Africa has requested that the ICJ should order Israel “to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives.”

Q: What exactly is South Africa alleging?

DB: South Africa alleges that Israel is committing genocide against Palestinians in Gaza, where 2.3 million Palestinians, half of them children, are trapped with nowhere to escape to. Since October 7, Israel has been carrying out a massive military assault by land, air and sea, on Gaza, which is one of the most densely populated places in the world. Israel’s assault is one of the most destructive and deadly bombing campaigns in history, killing more than 1 percent of the population of Gaza up to this point. At the same time, Israel has cut off food, water, and medical supplies, as part of a deliberate attempt to starve the population.

Israel has also driven nearly the entire population out of their homes in an act of ethnic cleansing, particularly in the north of Gaza. So far, Israel has destroyed or damaged 355,000 homes (approximately 60% of all homes in Gaza); displaced 1.9 million Palestinians (85% of the total population) and has left all of Gaza without food, clean water or sanitation.

Israel’s military has also targeted hospitals and other health care facilities in Gaza as part of its ethnic cleansing campaign. According to South Africa’s petition, “Israel has bombed, shelled and besieged Gaza’s hospitals, with only 13 out of 36 hospitals partially functional, and no fully functioning hospital left in North Gaza. Contagious and epidemic diseases are rife amongst the displaced Palestinian population, with experts warning of the risk of meningitis, cholera and other outbreaks. The entire population in Gaza is at imminent risk of famine…”

According to South Africa’s petition, Israel is:

1. Engaged in the mass killing of Palestinians in Gaza, a large proportion of them women and children —who are estimated to account for around 70% of the more than 21,110 fatalities. According to reports, Israeli soldiers have also summarily executed civilians;
2. Deliberately causing starvation and dehydration amongst Palestinians in Gaza by cutting of supplies of food, water, and electricity, and the destruction of bakeries, mills, agricultural lands and other methods of food production and sustenance;
3. Causing serious mental and bodily harm to Palestinians in Gaza, including through maiming, psychological trauma, and inhuman and degrading treatment;
4. Forcibly displacing - ethnic cleansing - around 85% of Palestinians in Gaza so far — including children, the elderly, and the sick and wounded — as well as causing the large scale destruction of Palestinian homes, cities, towns, refugee camps, and entire regions in Gaza, precluding the return of a significant proportion of Palestinians to their homes;
5. Destroying Palestinian life and society in Gaza, through the destruction of Gaza’s universities, schools, cultural centers, courts, public buildings and records, libraries, churches, mosques, roads, infrastructure, utilities and other facilities necessary to the sustained life of Palestinians in Gaza as a group, alongside the killing of entire family groups — erasing entire oral histories in Gaza — and the killing of prominent and distinguished members of society;
6. Imposing measures intended to prevent Palestinian births in Gaza, through the reproductive violence inflicted on Palestinian women, newborn babies, infants, and children;
7. Failing to provide for or to ensure the provision for the medical needs of Palestinians in Gaza, including those medical needs created by other genocidal acts causing serious bodily harm, including through directly attacking hospitals, ambulances and other healthcare facilities in Gaza, killing doctors, medics and nurses, including the most qualified medics in Gaza, and destroying and disabling Gaza’s medical system; and
8. Failing to provide and restricting the provision of adequate shelter, clothes, hygiene or sanitation to Palestinians in Gaza, including the 1.9 million internally displaced people, compelled by Israel’s actions to live in dangerous situations of squalor, alongside the routine targeting and destruction of places of shelter and the killing and wounding of those seeking safety, including women, children, the disabled and the elderly.

Q: What is necessary to establish that genocide is taking place?

DB: According to the UN’s Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. ​Forcibly transferring children of the group to another group.

Based on this, two elements are required: the intent to destroy in whole or in part a national, ethnical, racial or religious group and the act of doing so. In the petition, South Africa lays out both elements by highlighting numerous statements demonstrating the intent to commit genocide on the part of senior Israeli officials, including Prime Minister Netanyahu, the President of Israel, the Minister of Defense, the National Security Minister, the Minister of Energy and Infrastructure, the Minister of Finance, the Minister of Heritage, the Minister of Agriculture and the Deputy Speaker of the Knesset. The petition also highlights the alarm bells raised by a number of UN experts warning that Palestinians are at risk of genocide. It also highlights the many acts that Israel has carried out since October 7 to meet those elements above.


Q: What will happen if the ICJ finds that Israel is committing genocide?

DB: At this stage, what is being sought is a provisional order asking that Israel cease its attacks against Palestinians in Gaza. For a provisional order, it is not necessary to prove that Israel is committing genocide; but rather that the acts complained of fall within the Genocide Convention.

That said, if after hearing the full case the court finds that Israel is committing genocide, this obligates not only Israel but also countries around the world to act to stop genocide. First, according to the ICJ, every UN member state must undertake to comply with a decision of the ICJ in any case to which it is a party. If they do not comply, the other party may go to the UN Security Council which may take measures to give effect to the judgment.

Beyond that, however, the crime of genocide does not just bind the party committing genocide but binds third party states too, whether or not they have ratified the Genocide Convention.  What this means is that ALL states are bound and therefore must take measures to stop the genocide as well as measures not to aid Israel in committing genocide. This, of course, can take different forms including by imposing an arms embargo on Israel, boycotting and sanctioning Israel, and prosecuting war criminals.