N MENA
Tim Stickings
Jan 10, 2024
South Africa's lawsuit against Israel in The Hague draws on 2020 verdict against Myanmar
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Lawyers seeking to halt Israel’s offensive in Gaza hope tactics that swayed judges on Myanmar's alleged genocide of Rohingya Muslims will prevail again as the Middle East conflict enters court in The Hague.
Lawyers seeking to halt Israel’s offensive in Gaza hope tactics that swayed judges on Myanmar's alleged genocide of Rohingya Muslims will prevail again as the Middle East conflict enters court in The Hague.
Arguments to restrain Israel that will be heard by the International Court of Justice this week are similar to those deployed by western countries against Myanmar.
Two days of initial hearings will begin on Thursday after South Africa took Israel to the ICJ, claiming aspects of its assault on Hamas are “genocidal in character”.
Although it could take years for a full verdict, South Africa is asking for emergency measures in which Israel is ordered to call off its campaign.
The ICJ took similar steps in 2022 when Russia was asked to suspend its invasion of Ukraine, and in 2020, when it told Myanmar to prevent killings of the Rohingya minority.
The court has no way of enforcing such verdicts, but an order from The Hague could pile international pressure on Israel to pause its offensive.
A leading Israeli law professor has acknowledged that the inflammatory words of some of the country's politicians and television presenters could create difficulties in being construed as incitement to genocide.
“This is a process that would generate legally binding decisions in a context … that could complicate [Israel's] war effort in Gaza,” Prof Yuval Shany said in a Zoom briefing to journalists hosted by the Israeli embassy in London.
“Court order measures that require Israel to stop the war, or allow civilians in the south to head back north, would have significant complications for Israel.”
The court’s decision could have an “impact in real-time on the war” against Hamas. Israel, he said, “would not want allegations on the record accusing it of genocide”.
Speaking from the University of Jerusalem, Prof Shany said it was a case “that Israel feels that it could win” and that genocide was a “notoriously difficult charge to make before the International Court of Justice”.
Belgium is set to discuss joining South Africa's cause at the ICJ after a senior minister called for a legal response to “unimaginable, horrific acts” in Gaza.
The Myanmar verdict – which was welcomed by countries including the UK and Canada – is cited more than two dozen times in legal documents filed by South Africa.
The case concerned a military crackdown in Myanmar that led to more than 700,000 Rohingya people fleeing to Bangladesh, sparking allegations of violent ethnic cleansing.
Two days of initial hearings will begin on Thursday after South Africa took Israel to the ICJ, claiming aspects of its assault on Hamas are “genocidal in character”.
Although it could take years for a full verdict, South Africa is asking for emergency measures in which Israel is ordered to call off its campaign.
The ICJ took similar steps in 2022 when Russia was asked to suspend its invasion of Ukraine, and in 2020, when it told Myanmar to prevent killings of the Rohingya minority.
The court has no way of enforcing such verdicts, but an order from The Hague could pile international pressure on Israel to pause its offensive.
A leading Israeli law professor has acknowledged that the inflammatory words of some of the country's politicians and television presenters could create difficulties in being construed as incitement to genocide.
“This is a process that would generate legally binding decisions in a context … that could complicate [Israel's] war effort in Gaza,” Prof Yuval Shany said in a Zoom briefing to journalists hosted by the Israeli embassy in London.
“Court order measures that require Israel to stop the war, or allow civilians in the south to head back north, would have significant complications for Israel.”
The court’s decision could have an “impact in real-time on the war” against Hamas. Israel, he said, “would not want allegations on the record accusing it of genocide”.
Speaking from the University of Jerusalem, Prof Shany said it was a case “that Israel feels that it could win” and that genocide was a “notoriously difficult charge to make before the International Court of Justice”.
Belgium is set to discuss joining South Africa's cause at the ICJ after a senior minister called for a legal response to “unimaginable, horrific acts” in Gaza.
The Myanmar verdict – which was welcomed by countries including the UK and Canada – is cited more than two dozen times in legal documents filed by South Africa.
The case concerned a military crackdown in Myanmar that led to more than 700,000 Rohingya people fleeing to Bangladesh, sparking allegations of violent ethnic cleansing.
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A military crackdown in Myanmar led to more than 700,000 Rohingya people fleeing to Bangladesh. Reuters
It is seen as relevant in part because it was brought by a third party, Gambia, which like South Africa was intervening on behalf of alleged victims of genocide.
Israel may argue that South Africa has no link to Gaza and therefore no right to bring the case, just as Myanmar sought to shoot down Gambia's lawsuit by saying Bangladesh should file the claim.
However, the fact that judges gave Gambia a hearing is a telling precedent for the South Africa-Israel case, believes Tareq Shrourou, a human rights lawyer in the UK who works for Palestinian causes.
A filing in that case by the UK, France, Canada, Germany, Denmark and the Netherlands argued that all countries have a stake in the “high purposes” of the Genocide Convention.
“Myanmar made several arguments to say there wasn’t actually a dispute between the Gambia and Myanmar,” Mr Shrourou told The National.
“What South Africa claims and what the Gambia’s claim with Myanmar states, and this was accepted, is that all parties to the Genocide Convention have an interest in ensuring that it is not violated.”
'Plausible' test
South Africa must also persuade the court that it has jurisdiction, that it is “plausible” that Palestinian rights are being violated and that an emergency order is needed to prevent “irreparable consequences”.
It accuses Israel of “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.
However, South Africa does not at this stage need to meet the high threshold of proving “genocidal intent”, said Mr Shrourou, with Israel likely to argue it is acting in self-defence against Hamas.
Part of Myanmar’s defence was that hundreds of thousands of Rohingya people remained in the country, casting doubt on claims of “forced displacements” amounting to genocide.
However, the court sided with Gambia in the first round of hearings, in which it had merely sought to persuade judges that genocide was one possible interpretation of the events in Myanmar.
The filing by western allies also argued for a broad interpretation, saying genocide could be inferred from circumstantial evidence and that the bar should not be “unduly high”.
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South Africa's legal filing accuses Israel of killing Palestinians and inflicting conditions that would destroy them as a group. AP
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