Israel Raises Major Procedural Problem with South Africa Filing, Challenges “Genocidal Intent” by Citing Policies, Relief

It would be better if I were wrong. However, my take, having listened to the Israel presentation at the International Court of Justice hearing on South Africa’s genocide filing, is the court will not approve South Africa’s “request for the indication of provisional measures”. Remember, this is not a final ruling on the allegation that Israel has been engaging in genocide. This is an expedited initial ruling, analogous to a preliminary injunction in the US. Here, the standard is that the plaintiffs presented a credible-enough factual and legal case regarding conduct that if not halted, could result in serious harm. Mind you, this not being an Anglosphere court, the procedure and specific standards are different. In the normal course of events, the underlying case still proceeds on its normal (leisurely) timetable, with the alleged perps still perping until a final ruling.

Nevertheless the distressing thing is such a ruling against South Africa’s “request for the indication of provisional measures” would be ballyhooed by Israel and its backers as the court validating Israel’s version of events, that Hamas is a bunch of monsters and everything Israel did was warranted as self defense. If Israel wins this round by successfully punching holes in the South Africa filing, particularly on procedure, don’t expect to see a lot of fastidious reporting.

If you managed to catch the start of Israel’s oral arguments, it was infuriating if you have been following the debunkings of Israel’s charge of Hamas engaging in wanton savagery during its October 7 raid. Expect Aaron Mate and Max Blumenthal having a field day shredding these recycled and largely debunked claims.

The first Israel presenter also reinforced the trope of Hamas being in the business of committing genocide, as in conflating an end the state of Israel as tantamount to wiping out the Jewish people. Later presenters tried to depict most of the harm done to Gazans as Hamas’ doing, via misfiring rockets landing in Gaza, booby-trapped buildings killing civilians, and buildings collapsing due to the tunnels underneath them. But that was secondary to the torture-porn level allegations.

More from the overheated opening presentation:

Now if I were a judge, this sort of thing would prejudice me against Israel’s cases, since how horrible Hamas was or wasn’t isn’t germane to the genocide allegations. It’s a war crime to engage in collective punishment, even before getting to conduct that colorably rises to the level of genocide. So this is Israel shamelessly pandering to its domestic audience, supporters overseas, and the (pervasive) low-attention members of the media.

However, as the presentation went on, the Israel side landed some real blows. Since we will have ample commentary, and hopefully a transcript soon, I will not go overboard since we’ll be getting commentary soon, hopefully from experts, as well as better documentation.

Israel argued that South Africa ran afoul of what it depicted as a fundamental procedural requirement. The Israel team pointed out that there had to be a dispute before any filing is made with the court. A dispute means one party has told the other it has a problem with what it has been up to, and the other party responds (or at least is allowed enough time to respond). Israel discussed the finer points of this idea, as to when public statement in forums like the UN might do, and contended nothing South Africa has said resembled saying Israel was engaging in genocide and needed to cut it out. Israel charged South Africa as lodging not as dispute but a “unispute”

Even worse, Israel asserted that South Africa realized it had a problem with filing via not having communicated with Israel about its genocide charge and given Israel an opportunity to respond and tried to pretty up the document trail. Without tracking down the precise details, the gist is that South Africa had some sort of dog ate my homework excuse that it sent a missive to Israel, but on a day when the Israel offices were not open, and so then resent after the court filing, on December 29. Israel said it even offered to meet with South Africa representatives after the Thursday January 11 hearing and was rebuffed.

Update: Reader .Tom filled in what South Africa had allegedly done. He cited Craig Murray’s write up of the South Africa oral argument yesterday, in which South Africa claimed there was a dispute in accordance with the Convention. South Africa said it had set forth its dispute via Diplomatic Notes Verbale sent to the Israel government and they had not gotten a n adequate response.

Israel alleged instead that South Africa tried to paper up a record when no dispute had been initiated. Israel claimed that South Africa had sent the Notes Verbale on a day when the Israel offices were closed (and my recollection is the documents were not dropped off but taken back). They were redelivered, and not before the day of the filing (I do not recall what was said here about precise dates, but it may have been the day of the filing).

Back to the original post.

Not having objected to Israel’s genocidal conduct and allowing Israel to reply (cringemakingly, as one Israel attorney put it, “to assuage their concerns”) sounds as if in and of itself it may be fatal to the South Africa case. Israel kept saying it was a prima facie condition. In the US law context, I have heard that applied only to evidence, not procedure Again, if I am interpreting this standard correctly, it sounds as if it would be a threshold requirement in our lingo, equivalent to South Africa lacking standing to file the action due to its failure to go through the stipulated preliminaries. To put it more simply, South Africa allegedly can’t skip this step.

If my understanding is correct, the South Africa filing can (and actually should) be dismissed on this basis alone. South Africa could presumably refile after it heard all of Israel’s, erm, assuaging of its concerns. But that would create delay and seriously dent South Africa’s credibility.

In addition, Israel objected to the “genocidal intent” claims. And remember, South Africa has to establish that there is evidence not just of genocidal acts but also genocidal intent.

Israel objected to the fact that South Africa had relied on the statements of two officials, neither of whom were members of the two bodies that were prosecuting the campaign in Gaza, the War Cabinet and the National Security Committee. The Israel lawyers read some of the policies adopted by these committees, such as pious statements about minimizing harm to civilians, attacking only military targets, which were selected from a dossier submitted to the court. The presenter then ‘fessed up to the “Amalek” remark by Prime Minister Netanyahu, which translates into a “salt the earth” level of destruction of the opponent, down even to slaughtering their animals, and asserted it was taken out of context. He read out a statement and claimed it referred only to militant forces. It didn’t seem so clear to me but I would need to see the text.

Israel listed other acts it depicted as inconsistent with genocidal intent, such as repairing a water main, setting up four field hospitals and 2 floating hospitals in Gaza, providing ambulances and incubators. Israel lawyers also said Hamas had been using ambulances, that in every hospital the IDF had taken, they’d faund evidence of Hamas military use. They also claimed more bakeries were opening, that the amount of fuel entering Gaza ahd doubled since early December and the amount of cooking gas entering was 90 tons a day. Hamas was depicted as stealing a lot of the aid as well as using the population as human shields and in particular firing rockets from schools and apartment blocks. However I didn’t hear any explanations of why Israel had to kill journalists and UN staffers.

Israel also objected to the idea that the evacuations had been inimical to human life, and instead depicted them as intended to protect the population. One presenter banged on about how many leaflets had been air dropped and calls made. Israel also tried to claim with a straight face that there was no need to order the preservation of evidence, there was plenty of evidence….after it killed every independent journalist it could and allows only friendlies like CNN in and then on a very short leash.

Israel further argued that on January 8, it had announced a plan to have Palestinians return to north Gaza, and was transitioning to a lower intensity campaign with fewer ground troops.

The last long presentation walked through the provisional measures propsed by South Africa and raised objections to each one. I doubt the South Africa list amounts to more than a proposal from which the court would hopefully work. However, Israel objected to ones that would require it to halt military action, contending there was (and could not be) any similar requirement for Hamas (which is not a member of the ICJ), and argued that some could even result in checks of convoy trucks being depicted as a breach (given how Israel has abused that power, you can see why some might object to Israel continuing the searches). Israel also objected to the use of the word “desist” since that presumed guilt and was prejudicial, but that seems not hard to remedy.

I have skipped over more details of the hearing but the tidbits above hopefully give you a good sense of the Israel case and the areas where the South Africa case may be vulnerable. I hope lawyers with experience in this area of law weigh in.

Some may argue that South Africa has already won by preparing and then presenting its very detailed bill of particulars on Israel’s horrific conduct. We’ll see soon enough how loud the reverberations are.

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  1. Matthew

    Looking around among FB friends internationally, I see that S. Africa’s formal complaint has rallied and cheered a lot of people. Nothing that happens in the UN or Int’l Court penetrates the consciousness of middle America; the US and Israel have voted alone (sometimes, historically WITH apartheid S. Africa) so many times; this meant little on the home front but lots internationally, including in Europe, where–Germany and England apart–there has long been greater awareness of the truth of Israeli apartheid and practices.

    So I would not have hoped for instrumental outcomes, only a helpful raising of awareness about Israel’s crimes–I think we are getting that?

    1. CA

      S. Africa’s formal complaint has rallied and cheered a lot of people…

      [ This is South Africa acting in the moral tradition of Nelson Mandela. ]

    2. hk

      I tend to think that is exactly the point, from both sides. Even if SA “wins,” the practical consequences will be very limited, although, as other commenters noted, some countries have domestic laws requiring them to respect designations of war crimes by major int’l bodies, apparently. The real point is to win over int’l public opinion and both SA and Israel are doing that. SA has done a fine job elucidating how terrible Israelis are and technical-procedural issues won’t change that. In fact, I suspect SA may have been slipshod wrt the procedures precisely to hasten the case and maximize the PR impact. Likewise, I’d imagine Israel has spent much time on “Hamas bad” argument, though not germane is central to its public narrative. The net loser will be ICJ, I suspect: it may need to rule against manifestly just case for legally important procedural reason (or vice versa). The temptation to do so will be strong, further, because ICJ doesn’t really want to deal with the case, although they should also know that, if they duck this case, they’ll be condemned to institutional irrelevance.

      1. nippersdad

        “as other commenters noted, some countries have domestic laws requiring them to respect designations of war crimes by major int’l bodies,”

        IIRC, ratification of the convention against genocide requires that it is subsumed into the domestic law of those who have ratified it. I do know that here in the US ratified treaties become a part of the Constitution. The greater point of which is that it makes it a domestic offence for officials to ignore the strictures of the convention. At some point Congress is going to have to render Biden et al immune from their actions in support of Israel’s genocide, an action that would in itself be unconstitutional.

        It has been done before, but this time it may not work for them. Especially if the ICJ rules in favor of South Africa that there has been sufficient evidence of a genocide being committed that an injunction against it is granted.

        1. Procopius

          The International Convention Against Torture is a treaty which was ratified by the Senate and is “part of the constitution.” There is also a section of the U.S. Code which requires accusations of torture to be investigated and prosecuted if found to be factual. Shrub/Cheney paid no attention to either one.

        2. janaka

          It is more complicated procedurally than that “ratified treaties become a part of the [US] Constitution.” Most treaties, as interpreted (correctly or incorrectly) are not “self-executing.” They have to be explicitly passed into the law by Congress. Also, both the ICCPR and the Convention against Torture CID have Reservations, Understandings and Declarations saying they do not apply to US citizens, fwiw. US RUD’s to the Genocide Convention are here:

    3. Feral Finster

      Those who want to know and who want to care already know and care.

      I doubt that anyone will say “I was all for Israel, but if the ICJ says that Israel is committing genocide, then I need to change sides!” Certainly nobody of influence and authority.

      1. Carla

        Perhaps most people live in a gray area. They don’t really know much about Israel or Gaza or — for that matter — about genocide. Now at least people not subject to the western news blackout about the ICJ are able to learn.

      2. Valerie in Australia

        If this genocide is to stop, we need people in the middle – fair-minded people who are simply uninformed – who believe the MSM and believe they are getting the unbiased truth, to entertain the idea that there is more to the situation than they have been led to believe. Sadly, this isn’t a quick process, but I believe it is happening, nevertheless. Thanks to social media videos but also the loudmouth Israeli politicians, the racist, psychopathic rhetoric is out in the open for all to see. This case is a game changer because Israel and the U.S. cannot hide the truth. Even if South Africa loses, which they might, despite the clear evidence of genocide – the truth is out there now.

    4. Eclair

      ” ….. only a helpful raising of awareness about Israel’s crimes …”

      That does seem to be happening, Matthew. Minds can be changed as they encounter new information. Or, some minds. I had been and ardent Israel supporter in my college years and after: having read Exodus, we all wanted to go live on a Kibbutz and help green the desert

      In the months after 9/11, I began to read about the history of the ‘Middle East,’ and, browsing the shelves of our branch library, I found a slim volume by I.F. Stone, “the famous muck-raking journalist.” He recounted scenes from the Nakba (I believe) but what really hit me was his portrayal of the Israelis cutting down the olive trees on the Palestinian homesteads and farms, in order to ‘persuade’ them to migrate. As it happened, I had been fascinated by olives, the trees, the processing of the fruit into oil, the curing of olives. And how olives were the foundation of a culture, a cuisine and a crucial source of calories, as well as a crop that required years of love and protection before starting to produce. I had planted an olive tree and had experimented (sort of disastrously) with curing olives. (We lived in Southern California.) Here was an entirely different narrative about the founding of Israel. The US massacred the buffalo; the Israelis chopped down the olive groves. Destroy the life support and culture.

      The second awakening, was just a phrase, uttered on an NPR interview, back when NPR was, well, different. I believe it was Chris Hedges talking and he said: Gaza is the world’s largest open air prison. A few words that opened my mind to a different world view.

      Problem: time is running out for the Palestinians. Has run out for 25,000 of them.

    5. Bosko

      Another note of agreement here. Few people that I’ve read seem to believe that a) the ICJ would ultimately rule against Israel, or b) even if they did, that Israel would willingly suspend their campaign against Palestine. John Mearsheimer has said this several times. The real damage is in the court of public opinion. (And the solution for Zionists? Make sure there’s little reporting on the ICJ, and what reporting there is, is distorted.) I am not a Liberal, and so have little faith in either national or international administrative institutions to deliver Justice.

  2. Albe Vado

    “Hamas is using civilians as human shields” has always been a bafflingly asinine argument. One is the evidence simply isn’t there beyond a handful of specific incidents; there’s simply no evidence it’s any sort of regular Hamas doctrine. Two, I’m pretty sure there are legal requirements to make a genuine attempt at not knowingly inflicting civilian casualties. If, for example, Hamas in fact ever actually did something like set up operations underneath a bustling, active hospital, the hospital still doesn’t magically become a valid target, either legally or morally.

    And three, sheer pragmatism: why would Hamas ever attempt a strategy of using human shields when Israel so very clearly doesn’t care about the presence of civilians and will just bomb anyway? And then cry crocodile tears about how evil Hamas put those now dead civilians there. Israel apparently never has any agency; when its attacks consistently kill civilians it’s their enemies fault for putting the civilians in front of Israeli bombs. That Israel could just not bomb is apparently never an option.

    1. Yves Smith Post author

      Not disagreeing. The human shields blather, by admitting there are civilian non-combatants, contradicts the claim often made by Zionists, that all Palestinians need to die, even babies, because they all are or will be Hamas supporters.

      The problem is genocide is a pretty tough standard to meet, and (not having any knowledge of ICJ conventions) I suspect South Africa didn’t have any easier to prove ones, like ethnic cleansing, it could have invoked, otherwise you would have seen other charges in this filing

      1. Milla

        South Africa focused on genocide because it’s the greatest international crime and in most urgent need of immediate redress, thus most supportive of its request for provisional relief.

        Not any kind of legal expert, but this seems to turn on whether there is a procedural requirement for formal question and answer on the issue under dispute before filing before the ICJ. If not (which seems likely, it’s hard to fathom that the otherwise extremely competent RSA team would mess up on something so obvious and then not mitigate it, knowing how it would hurt their case), then RSA can state that it raised the issue of genocide numerous times prior to filling and did not receive a satisfactory response. It can cite back to the scale and speed of deaths, hunger, and physical destruction of “safe areas” including UN shelters, as prima facie evidence that Israeli mitigation efforts are not sufficient to preventing genocide.

        Of course, humans are fallible so maybe RSA really did mess up on a dumb procedural point and thought the Israelis would not capitalize on the point. But I think given how dishonestly the Israelis have argued the rest of their brief, its more likely that they mischaracterized the situation around this filing. I guess we will find soon enough.

        1. Yves Smith Post author

          Sorry, I beg to differ The ICJ does not hear cases on crimes. It is not a criminal court. It can hear cases only on various conventions among states. From its website:

          The jurisdiction of the Court in contentious proceedings is based on the consent of the States to which it is open1. The form in which this consent is expressed determines the manner in which a case may be brought before the Court.

          (a) Special agreement

          Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a special agreement, concluded by the parties specially for this purpose2. The subject of the dispute and the parties must be indicated (Statute, Art. 40, para. 1; Rules, Art. 39).

          (b) Matters provided for in treaties and conventions

          Article 36, paragraph 1, of the Statute also provides that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force. Such matters are normally brought before the Court by means of a written application instituting proceedings3; this is a unilateral document which must indicate the subject of the dispute and the parties (Statute, Art. 40, para. 1) and, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court (Rules, Art. 38).

          A list of treaties and conventions governing the jurisdiction of the International Court of Justice in contentious cases is given in the “Treaties” section.

          Here are the treaties and conventions:

          1. Milla

            The ICJ is not a criminal court, but it is supposed to adjudicate and uphold international law including interpretations of international criminal law. The South African lawyers pleaded for speedy provisional ruling based on the seriousness of the scope of apparent genocide already in existence and the fear of additional great harm in the absence of injunctive relief.

            The language quoted above requires the existence of a dispute between states but does not speak to the specific process for establishing the dispute’s existence. It seems to me that this can be established in other forms that cause Israel to know or reasonably know that others believe they are committing genocide. And if they don’t take reasonable actions to remedy the apparent genocide, there is the basis for the dispute. I believe statements from UN officials and prominent NGOs would satisfy this criteria and the notice does not have to come from a state. That doesn’t mean that they don’t have other requirements or that there may not be subtleties of definitions that aren’t obvious to me. But given the clarity and thoroughness of the South African case and the shoddiness of the Israeli one, I am inclined to disbelieve the Israeli procedural argument until the international law scholars weigh in.

            1. Yves Smith Post author

              This is a misreading of the ICJ role and this case. It is a filing under the Genocide Convention. This is within the ICJ’s remit. The ICJ does not have the authority to decide criminal cases. Please go to the link I provided to the ICJ’s description of its jurisdiction.

              Specifically, the ICJ can hear cases with respect to the interpretation of international law, but there has to be a dispute between parties. The Genocide Convention has the distinctive, and I imagine, unique feature that it imposes a duty on all states to (put in layperson terms) to try to stop genocide and so any state that sees evidence of. For the other international law violations, the party bringing the case would presumably need to have been wronged. South Africa has not been wronged by Israel.

          2. YS

            Yves, thank you for your write-up concerning some of Israel’s arguments before the ICJ. An interesting aspect of your discussion is the allegation that no dispute was raised by SA prior to the commencement of proceedings.

            As an attorney, albeit not one having practiced Int’l Law specifically but having studied it in law school, my take on the issue is as follows:

            1. Yes, the existence of a dispute is the primary condition for the Court to exercise its judicial function. (see the Nuclear Tests case before the ICJ at para 55 (

            2. Whether a dispute exists is a matter for objective determination by the Court which must turn on an examination of the facts and “For that purpose, the Court takes into account in particular any statements or documents exchanged between the parties, as well as any exchanges made in multilateral settings. In so doing, it pays special attention to the author of the statement or document, their intended or actual addressee, and their content” (See pg 2 of Marshall Islands v United Kingdom ICJ Judgment 5 October 2016) (

            3. Very recently (July 2022) in an Application filed by Gambia against Myanmar alleging breaches of its obligations under the Genocide Convention through acts against the Rohingya group, the ICJ confirmed “2” above and the fact that it is not necessary for the parties to hold and to have exchanged clearly opposite views concerning the performance or non-performance of legal obligations for there to be a dispute. (See para 71 of The Gambia v. Myanmar 22 July 2022) (

            Although the ICJ did rely on a Note Verbale in the Gambia v. Myanmar case to make the decision that there was a dispute in that case, in my view the Court’s previous decisions make it clear that such a note is not a necessary condition and that communication of the dispute between the parties and statements at the UN and other multilateral meetings are sufficient. It appears that such grounds were in fact also relied on by the South African side as appears at 1:29:56-1:40:34 of the first day’s proceedings (

            The Note Verbale, which was sent appears to be relied on by SA as only a formal communication of the dispute.

            Lastly, I note that the fact that SA, in recalling its diplomatic mission to Israel in condemnation of the bombardment of the Gaza Strip in early November 2023, called the bombing a “genocide” and made public statements to that effect. This video of a press conference around 8 November 2023 with a Minister in the President’s office makes that clear ( The advocate on SA’s side made all of these arguments in his presentation on the first day.

            In my view the issue of there being a “dispute”, for good reasons, should not be a “knockout point” or anything of the sort for Israel, however, only time will tell.

            1. E Williams

              Regarding the jurisdiction argument, SOI is saying they are disappointed that they were not allowed to negotiate with RSA before the application was filed. As you suggest, that is a weak-but-logical argument that SOI might very well win.

              Invoking a weak-but-logical reason to rule against RSA in an obviously important matter might diminish the prestige of the court. The court might seek a way to cure the absence-of-settlement-talks issue and thus keep open a path to adjudication on the merits.

              On the other hand, a cease fire order will be vetoed in the Security Council, instantly diminish the prestigue of the court, and make future adjudication on the merits awkward. The court might not want to expose itself to guidance from the USA.

              One way to avoid pitfalls on the right an left would be for the court to order the parties into court-supervised settlement talks. That will cure the procedural defect, buy time, preserve the court’s prestige, carve out a role for RSA that has heretofore been assumed by the USA, give the SOI an interlocutor that they cannot bomb, and confer legitimacy to the idea that SOI is a genocidal regime.

              1. Yves Smith Post author

                It is not “negotiate” but to present information to the party that is initiating a dispute. It could lead to negotiation, but it could also simply involve the recipient disputing the claims. Israel said it was not afforded the opportunity to “assuage South Africa’s concerns”. So they did not act as if they intended to negotiate (although the rejected offer to speak after the Jan 11 hearing arguably contradicts that.

            2. Yves Smith Post author

              The Israel oral presentation, which I have not listened to a second time, also went over the times that South Africa and others talked about Israel’s conduct. They apparently were not sufficiently specific of detailed per Israel to amount to initiating a dsipute, particularly the use of the formulation, “genocidal acts” which is not a basis for action under the Genocide Convention. You need to argue and establish “genocidal intent:”

            3. Dwight

              I agree and thank you for providing these cases and your analysis. Having listened to Dugard’s argument for South Africa, I think that the dispute was clear weeks before South Africa sent that note to Israel just before filing the application.

      2. Kouros

        Israel’s ultimate claim is that because there are no gas chambers to see, there is no genocide.

        But after you bomb everything to smithereens, leave no water, food, medicine to get in, destroyed health provisioning, what you have left is a concrete hell cold one, with winter upon us), where life is slowly withering away. Never mind the continuous stress induce by continuous bombing and shooting of civilians, obviously intentional…

        However, it looks that facts be damn, procedure must prevail. If that will be the case, the jjudges will have blood on their hands and no excuse will suffice. This is not a post fact assessment. Every day people are dying. But the silver lining will be that the expedited proceeding will be rejected not because Israel is not commiting genocide, but because procedural issues. My bet is the Israel and the West will lie about this and say that the court found no evidence of genocide…

    2. NN Cassandra

      The defense “Hamas is using civilians as human shields because it dug tunnels under Gaza” doesn’t make sense even on its face. How better to avoid encountering civilians than to fight underground with 30m of solid earth between you and the nearest non-combatant? If you want to take it to Hamas directly, it’s perfect setup.

      Of course in reality it’s Israel who is using Palestinians as human shields, the plan is to make their life unbearable with the hope they will overthrow Hamas, or preferably disappear into Congo. It’s the same logic West uses when it sanctions another country, Israel is just using bombs.

  3. mrsyk

    Impressive bingo card. One might want to exercise caution making a drinking game out of this.
    I’m skeptical that any international court ruling is going to make much difference in the trajectory of this thing. The ICJ is another western construct, an asset class that hasn’t been showing well when held up to the light.

    1. Matthew

      This is a fair rebuttal to my observation (above). But–accepting that all such bodes are compromised–maybe it depends when and how these things entered one’s consciousness, but I remember living in Ireland and Spain during the period (yes, long ago) when Federico Castro brought the court to prominence, and thrilling to his daring in bringing crimes to light, and seeing them receive prominence in the media. Just getting people to SEE and understand US complicity in what’s taking place is such a hurdle, perhaps addressed (and by the right country) with the formal S. African accusation.

      There is just so little that is given any attention here, I’m afraid. In my own work, I am reminded almost daily that the Via Campesina is the world’s biggest social movement organization, dwarfs almost any other organized body, that its claim to food sovereignty galvanizes hundreds of millions of people, is enshrined in constitutions, animates social justice claims in South America . . . and is virtually unheard of, let alone understood here. The ignorance, the blackout on ideas, is quite complete. It’s important to recognize that even as the world crumbles it is OURS that is the biggest area of darkness. We’re really here educating ourselves.

      1. mrsyk

        I agree with your “raising awareness” theory. I’m curious if the ICJ can (in reputation) survive this case.

  4. zagonostra

    Thanks for the analysis, I started watching proceedings early this morning but couldn’t stomach it so I shut it off…This tweet from Edward Snowden seems to confirm your estimation of final ruling.

    When I worked for the Bush-era CIA—down the street from the @UN HQs—I learned we were relentlessly infiltrating & undermining UN and @IAEAorg (nearby in Vienna) bodies to thwart perceived anti-war “lawfare.” Hard to imagine @CIJ_ICJ won’t face similar efforts to prevent justice.

    1. nippersdad

      That lines up well with stories about Israel sending out a memo to its’ embassies to lean on their hosts to make statements like those of Kirby and Blinken, that the case had no merit. It also lines up with other stories about the US trying behind the scenes, by hook or by crook, to work the refs.

    2. Feral Finster

      As I said, for Israel, it’s a no-lose. If the American efforts are successful, Israel will claim vindication.

      If the ICJ admits the obvious, Israel will scream anti-Semitism and its American enforcer will make sure that the ICJ ruling is duly ignored.

      Doubtless the Americans are reminding those justices that an unenforceable ruling will undermine the authority of the ICJ and they need to look at the bigger picture here.

      My SWAG is that the ICJ tries to bounce the ruling or split the baby, so as to avoid having to take a stand.

      The American stance is best summarized by Blinken’s statements that the charge of genocide is totally groundless and at the same time, that he had not read or examined them.

  5. nippersdad

    I’m not sure that notification of Israel of a complaint is an issue that will carry much weight. There was a section early on in SA’s case yesterday that specifically covered that. And, remember, all South Africa had to do was present the probability that there was a genocide going on to get injunctive relief. The world can see the genocide being perpetrated, and SA presented an iron clad case for it yesterday. With such a heinous charge, the benefit of the doubt goes to the complainant.

    That Israel took the trash car crash lawyer approach to defense is not going to work to their advantage. Israel making a spectacle of themselves will not impress the judges as to their respect for the court proceedings in hand. The actual case is going to come later, and they can throw all the stuff at the wall they like then to see what sticks; Mate and Blumenthal may well get their day on the stand to dispute some of their allegations. But for the purposes of what is on the docket now, it doesn’t sound like Israel made their case.

    1. Yves Smith Post author

      Cases are thrown out all the time on procedure. If this indeed was a threshold requirement, South Africa has no standing. It can refile after it has crossed the t it missed before.

      1. nippersdad

        From the Craig Murray article that .Tom provided below:

        “The venerable and eminent Professor John Dugard, a striking figure in his bright scarlet gown, then addressed questions of jurisdiction of the court and of the status of South Africa to bring the case – it is likely that Israel will rely heavily on technical argument to try to give the judges an escape route. Dugard pointed out the obligations of all state parties under the Genocide Convention to act to prevent Genocide, and the judgment of the court.

        Dugard quoted Article VIII of the Genocide Convention and read out in full Paragraph 431 of the court’s judgment in Bosnia vs Serbia,

        This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences ; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”

        The responsibility of Israel (and the US) to address the issue was actually before SA brought their case to the ICJ; that letter from the Israelis started the clock ticking. Whether or not SA got their paperwork wrong is irrelevant to the issue of the injunction at hand. This is not a procedure that will determine guilt or innocence, but one over the plausible existence of a state of genocide and the need to call for a cease fire while the case is tried.

        1. Willow

          If Israel wins on technicalities it will be seen by the Global South as a clear current global institutions are captured by the West solely for their own benefit. This outcome is extremely dangerous for the West because once the Global South stops playing the game all hell starts to break loose as treaties (political, economic, environmental) will be seen as in effect unenforceable except by war or coercion. (incentive for ‘defection’ grows). Belief in impartiality will evaporate. In particular, an Israeli win on technicalities could provide a moral justification for Türkiye & Egypt to get militarily involved and by extension every other Islamic country (Iran will only be a sideshow). Saudi Arabia & Gulf States will sit on the fence, not in support of Israel but so they can buy up all of Europe’s prized industries at massive discounts.

          Breakdown of global institutions was one of the precursors of WW2. US burning down its own house to save Israel will only bring WW3 closer.

          1. Willow

            ‘Erdogan says Turkey providing evidence for genocide case: ‘Israel will be convicted’’

            Erdogan is stating publicly that he believes in the justice of ICJ and that Israel will be convicted. What happens if (when) South Africa’s “request for the indication of provisional measures” gets thrown out on technical grounds? Erdogan has set himself up by crossing this bridge. Will this be an excuse to walk away from Western institutions? NATO, (trying to join) EU, Russia sanctions etc.? Erdogan has also come out strongly in support of the Houthis saying that response of US lead coalition is disproportional. Same allegation as against Israel with regards to the Palestinians. Türkiye continues cleaning up its house by shutting down more Israeli intelligence operations. Is this just house cleaning to spite Israel or preparation for something more serious?

            1. Rain

              Erdogan is a slippery character, he appears in public orations a lot, and it is difficult to discern whether or not his statements are just “political theatre” for the benefit of local Turkish-speaking populations, or have other messages in the rhetoric.

              I have read that many other leaders in the region have ‘learned to ignore his public statements, but if he deigns to speak privately listen carefully. ‘

    2. Peter L.

      I just rewatched John Dugard’s presentation: he argues the Convention on Genocide does not require states to pursue negotiations prior to going to the Court. The Convention, argues Dugard, “envisages a situation in which a state acting on behalf of the international community as a whole siezes the jurisdiction of the Court as a matter of urgency to prevent genocide.” Then he goes on to argue that there is a dispute between SA and Israel in fact:

      “The existence of a dispute is a matter to be determined by an objective determination of the facts as they existed at the time of the filing of the application. At this time South Africa had accused Israel in the Security Council, the General Assembly and other public forums of engaging in genocidal acts. It had conducted a formal diplomatic démarche on Israel warning it that it viewed its conduct as genocidal. It had requested the ICC to vigorously investigate crimes under the Genocide Convention committed in the Gaza Strip by Israel and accused Israel inter alia of the deliberate targeting of civilians, intentionally causing starvation and impeding relief supplies. It had accused Israeli leaders of expressing the “intent of committing genocide.” Israel had flatly rejected South Africa’s accusations.

      “Despite these harsh accusations, Israel has persisted in its genocidal acts against the population of Gaza. What more evidence could be required to establish a dispute? It is precisely because of a situation of this kind, affecting the international community as a whole, that Article IX of the Genocide Convention does not require negotiations as a precondition to seizing the jurisdiction of the Court. Certainly a respondent State cannot prevent a referral to the Court by claiming that there is no dispute and that it wants discussions on this matter when the existence of a dispute is clear. For a State to insist on a timeframe for negotiations would be a licence to commit genocide and would run counter to the object and purpose of the Genocide Convention.”

      I was a bit confused by the presentation. I think there is a bit of haziness or handwaving suggesting that the Convention on Genocide either weakens what is properly classified as a “dispute” and therefore SA and Isreal have a dispute suitable for submission to the ICJ, or perhaps, that the Convention doesn’t require a proper dispute at all, but empowers states to act on their responsibility to prevent genocide.

      It certainly seems like the weakest part of SA’s submission.

      1. nippersdad

        I could obviously be wrong, but it seems like the Convention has a tripwire in it that depends upon credible accusations that a genocide is being committed. Once that tripwire has been triggered it is incumbent upon the state that is accused to stop any actions that could be construed as acts of genocide by any means possible to them. It also makes it incumbent upon all of the fellow signatories to do the same. Had Israel made an effort to do so there could be no case to litigate, and I think SA made that point pretty well when it pointed out that all of their measures to “protect civilian life” were undercut by things like their then bombing the refugee camps that their actions had made necessary.

        There are any number of credible accusations that could have tripped this clause, and the mere fact that such a heinous issue is being brought up at the ICJ at all pretty much requires the court to issue an injunction pending litigation of the case. Rather than weakening SA’s case, it augments their argument as to the necessity of their bringing it.

        The thing to remember is that this is not the case, itself, but merely a hearing for injunctive relief. They don’t have to prove anything to get that, just show plausibility of the conditions of a genocide being perpetrated to win the injunctive relief they are asking for. The court can ask no less of themselves than they are of the litigants; it is up to them to stop the genocide every bit as much as SA at this point lest they find themselves in abrogation of their own law.

      2. Yves Smith Post author

        Israel contends that South Africa effectively fibbed to the court. “Genocidal acts” as Aurelien confirms below, has no status under the relevant Convention. Israel further contends that South Africa did not initiate a dispute (South Africa claims to have sent documentation before the filing and Israel never made an adequate response; Israel contend South Africa conveyed the papers on a day when the relevant office was not open and did not send them again until (sorry for not rechecking) either the day of or right after the filing.

        I find this particular allegation to be credible. Israel would have every reason to reply to the initiation of a dispute since it would complicate and delay South Africa lodging an action with the ICJ.

        The court said it would ask both parties for more information if needed, so I am sure they will probe this matter if the documents they have so far don’t settle what the situation is.

        1. The Rev Kev

          Dunno about Israel’s argument. It is like saying that ‘they never got the bill’ or eventually saying that ‘the check is in the mail’. Israel only has to pretend that they never got some particular document and they could keep on doing that and saying can you please send it again as we seem to keep on losing it.

          If Israel things that it can get off genocide charges on a technicality, then this would be the worse of all worlds. The ICJ would be totally discredited, much of the Global majority would start abandoning these western institutions eventually and other countries might see that only direct action is the only viable option as Yemen has done. And finally, for the majority of the people in the world, Israel’s name would be forevermore ****.

          1. Yves Smith Post author

            The insinuation is that South Africa attempted delivery on a day the relevant office was not open and did not drop off docs. I am just about 100% certain there would be a guard but perhaps the guard would not accept deliveries.

            SA could have easily delayed the filing a day or two to get the docs to Israel.

            I need to check the timelines. The details matter.

  6. Albe Vado

    If Israel manages to get the case thrown out on procedural technicality grounds that would play down to just about every possible stereotype of the disreputable, scheming lawyer. People as a rule don’t like lawyers, and a big part of the reason is precisely because of this sort of nonsense. It’s so blatantly obvious that justice isn’t being served, just procedural T crossing games.

    Regardless of where the case goes, the South African presentation will forever remain as an utterly damning and consise (as court cases go) monument documenting brazen Israeli crimes. What is going on is so completely unambiguous that the only way for Israel to possibly defend itself is to have the case dismissed via technicalities. Which will in itself be a kind of loss: when they couldn’t win on the field through genuine athletic ability they won or forced a draw via whining to the refs and trawling through the rulebook for some technicality. People don’t like this sort of thing, whether inside or outside sports, and most people can spot it a mile away.

    The extensive, robust evidence, much or it from just directly quoting Israel officials themselves, will remain, regardless of if Israel ‘wins’ by claiming certain court procedures weren’t followed. The unambiguous reality won’t change, and all the dead Palestinian kids won’t become not-dead.

    1. NotTimothyGeithner

      The issue is what happens in a month. The genocide is ongoing. It’s only getting worse. This is why South Africa tried this. They know only Biden recognizing he will be deemed a genocidal madman is the only thing that is going to stop the genocide.

        1. juno mas

          Yes, we supply the bombs. Sounds like the US action in: Korea (1950’s), Vietnam (1960’s), Kosovo (1999?), Iraq (2003), Afghanistan, and now Gaza. What will the historians write about American democracy for this era? “We” are also war criminals.

    2. Will

      If the ICJ is going to rule against the South Africans, then I hope it is on procedural grounds. Otherwise it may very well destroy the Genocide Convention itself.

      The only thing distinguishing mass murder and genocide is the intent. The intent to destroy in whole or in part. That’s why, at least for the ICC, the killing of a single person constitutes genocide if the genocidal intent is also present.

      You can, although much more difficult, infer genocidal intent from actions. But as far as I am aware, no case for genocide has been made without public statements. The public statements to date by various Israelis officials has been seen by experts as textbook examples of genocidal statements. If the ICJ finds that the Israeli statements in the South African submission do not “plausibly” support a finding of genocidal intent, then I don’t know how any future genocide prosecution could proceed.

        1. Feral Finster

          I read rulings all the time. Courts are Calvinball and laws are meaningless when the sovereign is a tyrant or the Queen Of Hearts from Alice In Wonderland.

          Finster’s First Law readeth thusly: “There is no such thing as law. There is only context.”

        2. ChrisFromGA

          100% agree with that as a statement of civilized law.

          The problem here, though, is that time is of the essence. Finding some procedural reason to kick the case back and maybe revisit it a year or so, after South Africa has withdrawn a few diplomats or sent some more strongly worded letters to the Israelis means a lot more Palestinians die.

          I don’t share the complete cynicism of others here that the ICJ has been hopelessly compromised and weaponized by the empire, unlike the ICC, but I do think this is a moment where they have to recognize they may be the only “controlling authority” (to quote Al Gore) left to stop this.

          A preliminary injunction until they can sort out all the facts makes sense to me, as long as the ICJ’s own internal rules of which I know nothing have at least been given a fair and reasonable treatment by both parties. I would not expect every “I” to be dotted and “T” to be crossed. But, enough of them should be.

          In granting an injunction often there are tests such as which party would be harmed the least if the injunction were to be granted. Also does the party asking for the injunction have a reasonable case of winning.

        3. Will

          First, I didn’t say procedures are not important.

          Second, the ICJ is light on procedural rules. In its Rules of Court, you’ll find fairly detailed provisions regarding the inner workings of the court, but as to handling of cases, there’s a lot of room for maneuver. You’ll find few fixed timelines and many examples of the court working with the parties to establish timelines etc as needed.

          The ICJ is more permanent arbitration panel than court of law. For the ICJ to have a robust set of procedural rules that would apply to all proceedings, then you’d need unanimous agreement from all state parties as a separate treaty or annex to the UN Charter. All the parties are sovereign states; no sovereign or government above them to impose rules.

          All of which probably sounds doubly strange from an American perspective as the US legal system leans particularly hard into procedural rules to try and achieve substantive justice. As I understand it, this also derives from a wariness of judicial discretion and rule making.

          And Calvinball is a good description of international law.

          In between multilateral treaties and “peremptory norms” (aka jus cogens), you have “customary international law” (CIL), which is basically lawyers and academics trying to discern rules of the playground. The two elements necessary to find CIL exists are (1) consistent state practice, and (2) states follow the practice because they believe they are obliged to act that way.

          The second element is a little difficult as states rarely explain why they act in a particular way. Many examples of the opposite though, as in a state declaring it is undertaking some action of its own accord and not in accordance with a customary international norm or a multilateral treaty to which it is not a party. (A treaty can be seen as codification of a norm and a non-party as still bound by the norm.) The US makes frequent use of objections so as to avoid being constrained.

          Circling back, for anyone wondering what are “peremptory norms”, they’re treaties or CIL that are considered especially important and can not be breached. Genocide and slavery make everyone’s list. As to what else makes the grade, that’s up for debate.

          If you wanted to rename “international law” as “norms and guardrails”, I wouldn’t disagree. For a neutral arbiter to rule on any of it, a fair deal of flexibility is necessary.

          Third, the “dispute” requirement is not procedural. It relates to whether a matter can properly be the subject of adjudication by the ICJ. So a substantive issue, as described by YS in their comment above.

          I’d just add to YS’s comment that paragraph 13 of South Africa’s application details how Israel was made aware of South Africa’s opposition to Israel’s conduct.

          The Israeli’s are banking on the court requiring other indicia before concluding a dispute exists. Unfortunately, most articles are behind a paywall, but for those interested, here are some summaries of the recent case law and development of the ‘dispute’ requirement. One positive the other less so.

          Perhaps most relevant to the present case, there seems to be a suspicion among some legal scholars that the “dispute” requirement has been developed so as to give the judges cover for when they want to avoid politically sensitive cases.

        4. E Williams

          Thank you for teaching me a new word. I think there are courts and there are courts. Some areas of law are calvinballish. I would suggest tax, immigration, and police misconduct stand out. RSA v SOI is not an accounting case, where technicalities can be decisive..

          Both RSA and SOI seem to agree on at least one thing — that genocide is different — a matter of high injustice. And the histories of both countries lend credibility to their clams. A judge who dismisses a case involving a matter of fundamentnal injustice on a technicality does so at her peril.

  7. furnace

    I’m not a lawyer, but this seems to me that this is a lose-lose situation for Israel. If they manage to get the court case dismissed on a technicality or on procedural mistakes this will be so outrageous as to completely end any expectation of a solution through international mediation, which would therefore leave only violence as a means of ending the conflict, which, given their current track record, means that Tel Aviv might get its old name back soon. This would also completely destroy in the public’s eyes any credibility the ICJ has, since given that a genocide is so very obviously happening, any legalistic argumentation will just sound vacuous and callous.

    If they lose the case and it is officially declared a genocide, then many countries will have to comply with their own law, and this would bolster the legitimacy of all who oppose Israel, who would be able to argue having the “mandate of heaven” so to speak in the war. Either way, the Zionist Entity shambles ever closer to its demise.

    1. Feral Finster

      If the ICJ states the obvious, then those countries whose laws require them to do something will simply ignore their own laws or pretend that they don’t somehow apply, booted along by healthy doses of American carrot and American stick,

      To paraphrase Yves, courts *are* Calvinball, when the sovereign is a vindictive tyrant.

  8. .Tom

    Craig Murray’s write up of the first day has the paragraph

    He started by asserting that South Africa did have standing to bring the case, repeating Durand’s points about the duty of states to act to prevent genocide under the Genocide Convention. He said there was a dispute in the terms of the Convention, over whether or not genocide had occurred. South Africa had framed this dispute in a series of Diplomatic Notes Verbale sent to the South African government and not satisfactorily replied to.

    Which I assumed was a typo and meant that SA anticipated this procedural challenge and explained how it doesn’t apply. CM apologized for hasty publication and would not bring an internal dispute to the court. So I’m pretty confused at this point.

    1. nippersdad

      There was also a point made by, I think it was on Judge Napolitano, that notification under the convention started with the first accusations made, and that did not necessarily have to be by South Africa. It was pointed out that a joint letter was sent to Israel by a group of Israelis which would have started the clock ticking.

      The Genocide Convention is very explicit about how every signatory must react to such accusations, and that it was Israelis that first leveled the charge will have weight in the case to come.

      1. Yves Smith Post author

        Individuals do not have standing before the ICJ. Only states can initiate actions. A letter by individuals, particularly Israel citizens, is irrelevant. There has to be a dispute and it has to be initiated by a state. It could even be an aggrieved speech at the UN but it has to have sufficient particularity (how particular under this convention is over my pay grade).

        1. nippersdad

          But at the point of notification we are discussing it has nothing to do with the ICJ, it has to do with the compliance of Israel with the Convention on Genocide in an effort to prevent an action from being implemented at the ICJ. It is a matter of when they knew that they were in a state of non-compliance. Every state has a responsibility under the Convention to prevent a genocide from happening, and this will show that Israel was not in compliance with their responsibility.

          1. Yves Smith Post author

            Huh? The ICJ is the court that hears disputes of the Genocide and other conventions! What are you talking about??? See here:

            A notification by individuals is irrelevant to the South Africa filing. One state that is a member of the Convention must initiate a dispute. Individuals do not have standing. The fact that the individuals whinged can be persuasive evidence to include in a filing but that does not get anyone to court.

            1. nippersdad

              “The fact that the individuals whinged can be persuasive evidence to include in a filing but that does not get anyone to court.”

              My point exactly. They are in court now, and the court will have to ask for clarification on this issue from SA. When SA says that their submission of a brief to Israel was ignored (no government building of any consequence is ever left empty, there is always some provision for the acceptance of documentation) they can point out that there is a pattern to Israel’s actions.

              They just made SA’s case stronger.

    2. Yves Smith Post author

      No, that is a point Israel addressed. They said SA had played games with the Notes Verbale and had NOT in fact sent them before the filing. SA had sent them on a day the Israel embassy or whatever office it was sending it to was closed and they were brought back (I assume by a courier) to SA. The document was never received before the filing. Rather than delay the filing and send the Notes on a day the Israel office was open and wait an adequate interval for a reply, SA went ahead and filed.

      As much as I do not like Israel’s conduct in general, the Israel account here rings true. Israel would have NO reason not to respond on a timely basis. Giving SA info (even if arguable) that would throw sand in the gears of their genocide claims would 100% be in Israel’s interest. SA would have to consider what Israel said and revise the filing (as in draft around it or pre-rebut it). Either way would mean spending more time and more delay.

      1. ChrisFromGA

        That sounds a lot like process server games. Process server shows up at my door, I run out the backdoor and hop the fence. Process server has to catch me at work or somewhere I can’t play that game.

        Does not put the South Africans in the most favorable light, though. How cheap would it have been to pay the courier to wait outside the embassy until it re-opened? A night’s hotel lodging?

        1. vao

          After reading the article and all the additional comments, I have some difficulty squashing my awakening suspicion that South Africa slightly bungled its application on purpose — to give an easy escape hatch to the ICJ and avoid the fury of the USA, while being able to stand firm on the principles in front of the rest of the world. How could an entire team of high-powered laywers fail to make the case fire, water, and bomb-proof regarding procedural aspects when the matter at hand is already so controversial?

          I hope I am wrong.

  9. ChrisFromGA

    A couple of points, with major caveat that I am applying American law concepts, not international ones.

    Procedural problems: This looks like Israel may have a good point, but procedural issues can always be cured by re-filing or waiting for the issue to become ripe. If the underlying case is still solid, it will only delay justice. I wonder what steps South Africa as a government would need to take, for the ICJ to consider the issue “ripe.” Cutting off diplomatic relations? Boycotting Israel economically?

    Intent: Need to be careful, here. In tort law, intent does not always mean what you might think it does. Take trespassing, for example. It requires intent … but saying that you did not know where the boundary of the owners’ land falls is NOT a defense. Intent just means that you acted with your legs to walk across the boundary, not that you intended to trespass. An example of a good defense would be, my buddy shoved me and I fell into my neighbors yard, therefore, I did not intend to trespass.

    I don’t know how the ICJ will determine intent, but it could be that the standard is not so high as finding written evidence that Israel literally had genocide as a goal. It might be enough that they intentionally killed women, children, and decreased the genetic pool of Palestinians by their actions. Which include, by the way, destroying hospitals where children are born, bombing civilian areas with no regard for civilian casualties, cutting off supplies of food and water, and encouraging ethnic cleansing in their words and acts.

    1. hk

      I wondered about this: it seemed that, if there are procedural issues and mainly procedural issues, all that would happen is that the case would be “dismissed without prejudice” with an invitation to refile following all the procedures as soon as possible. At best, Israel would only be able to delay the process while it’d have drawn attention of all the world to itself while it’s dragging feet over technicalities while still engaged in genocidal actions (or the actions that have been accused as genocide.) It still doesn’t help the ICJ’s “bureaucratic” interest: it presumably wants to duck out of having to deal with the case and it’ll wind up having to deal with it under even more pressure–if it does go this route. I have trouble imagining that it has any other choice: it can’t ignore either the significant substance or important procedural requirements, I should think.

    2. Yves Smith Post author

      I did point out if the only basis for ruling against Israel were procedural, it could refile, but that does overlap with substance. They would ALSO have to address the issues Israel raised in its objection to SA’s genocide charges. So this is not just allowing Israel to argue back privately and then just refiling the original docs.

  10. CA

    Arnaud Bertrand @RnaudBertrand

    This is huge:

    Top Israeli newspaper Yedioth Ahronoth confirms Israel used the “Hannibal directive” on Oct 7th, which calls to kill Israeli hostages along with their captors. This is the exact quote from the paper:

    “At midnight on October 7, the IDF ordered all of its combat units in practice to use the ‘Hannibal Directive’, although without clearly mentioning this explicit name. The order was to stop ‘at all costs’ any attempt by Hamas terrorists to return to Gaza, that is despite the fear that some of them have hostages.

    “It is estimated that about a thousand terrorists and infiltrators were killed in the area between the Otaf settlements and the Gaza Strip. It is not clear at this time how many of the hostages were killed due to the activation of this command. In the week after the attack, soldiers of elite units checked about 70 vehicles that were left in the area between the Otaf settlements and the Gaza Strip. These are vehicles that did not reach Gaza, because on the way they were shot by a combat helicopter, an anti-tank missile or a tank, and at least in some cases everyone in the vehicle was killed.”

    3:17 AM · Jan 12, 2024

  11. JonnyJames

    Not to be predictably cynical but: even if South Africa prevails, how could Israel be held to account? How can any decision or punishment be enforced?

    The US and Israel will denounce any decision against Israel, of course. The US/UK/Israel axis piss on the law every day. The Law of the Jungle prevails, not the Rule of Law. Tony Blair, Bush Jr. et al. are lauded as great men, for example.

    The axis has shown time and again that they are willing to use mass violence, and war to further their interests, no matter how risky or provocative. The US has the Wolfowitz Doctrine, and Nuclear First Strike doctrine. Israel has their Samson Option. Is this just a bluff?

    1. Yves Smith Post author

      We discussed that yesterday. The ICJ has no enforcement power. Some states apparently do have statutes that require them to limit diplomatic and/or commercial dealings with a state that engages in genocide. But otherwise,, the UN, individual states, or the ICC (by charging individuals) are the ones who have to take steps.

      1. Feral Finster

        Even for those states that have such laws, they simply will ignore them or pretend that the ICJ ruling somehow doesn’t apply.

      2. JonnyJames

        Thank you. In that case, my skepticism is well-founded. The US never ratified the Rome Statute and Israel is not a signatory, and the US has veto power at the UNSC, so not much hope for action there.

        Any semblance of justice will have to wait until the hegemonic power of the US declines further. Israel will not be able to enjoy immunity forever. But who knows what may happen

  12. Aurelien

    One of the first points I made in this discussion was that the ICJ exists to settle disputes between “Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.” So the threshold condition is that there is an existing dispute between two countries, rather than the legal case being the dispute itself. Not stated, but surely implicit, is that these two countries must have something more than a random connection with each other, ie there has to be some kind of backstory to the dispute. The analogy would be if, say, South Africa were to bring a case before the ICJ under the 1951Refugee Convention (as is foreseen in the Convention) against Belgium, because of its alleged refusal to take returning jihadi fighters from Syria. Indeed, theoretically, the ICJ could be asked to pronounce on almost any controversial subject that could be linked to a Treaty or a Convention. From the beginning, I’ve been worried that the judges would say there was no “dispute” between the countries in the sense that the ICJ normally deals with disputes.

    The other thing I said was that genocide is a matter of intent shown by individuals or groups. Indeed, there is no such thing as a genocidal “act”: there are only acts with a genocidal intent. And these acts have to be carried out or ordered by the same people who show the genocidal intent, which has to be proved, not just assumed. So the South Africans would have to show that named individuals who could be shown to have direct criminal responsibility for certain acts in Gaza, had also expressed the intent to destroy the Palestinians “in whole or in part.” It sounds as if they haven’t done this, which is not surprising.
    I would not be surprised if the case is thrown out on procedural grounds.

    1. JonnyJames

      Thanks for that clarification, but as noted earlier: even if SA prevails, there is no enforcement and Israel (nor the US) will not be held to account. It looks like the best one could hope for is a PR victory. The likelihood of this being thrown out makes even a PR victory small potatoes.

    2. ChrisFromGA

      Thanks for that important clarification. I was wondering what the standard of “intent” might be; see my comment above.

      Sounds like the standard is very strict, and something like documents showing Netanyahoo or other Israeli government officials openly expressed a desire to destroy the Palestinians “in whole or in part” would need to be presented as evidence.

      As far as a dispute, I don’t know what the definition of dispute is other than what you’ve written. Sounds like both countries have to have some formal relationship that breaks down. It sounds very analogous to the “standing” problem – I cannot bring suit against my neighbor if I can’t show harm. Saying that my other neighbor is being harmed is not enough.

      This whole thing is reinforcing my skepticism about international law as a workable concept. The problem with all this strict standard stuff is by the time you’ve gathered the evidence, and gotten through the procedural hurdles, the deed is done. Of course, there is a damages/retributive justice element to law, as well as injunctive relief – so holding Israel accountable after the fact would be better than nothing.

  13. Feral Finster

    The Court will do what it wants to do. It’s really a no-lose from the PoV of Israel.

    If the ICJ rules in favor of Israel as expected (because ICJ judges typically vote in line with their countries of citizenship), of if the ICJ or otherwise tries to split the baby somehow, Israel will treat it as vindication.

    If the ICJ does in fact find what is obvious, Israel will scream antisemitism and its American thug will not allow any such ruling to have any practical effect.

    “Don’t quote laws to us. We carry swords.” – Gnaeus Pompeius
    “John Marshall has made his decision. Now let him enforce it!” – Andrew Jackson

    1. Yves Smith Post author

      OMG that is terrible! I am so so saddened to hear this.

      I wish I had his father’s e-mail address to send condolences.

      I hope Tucker raises holy hell after having had Lira senior on his show. Oh, I see on Twitter that it looks to be Tucker who broke the story.

    2. mary jensen

      “I see it reported that Gonzalo has died.”

      Odd that. Everyone else “passes” but Gonzalo has died…

  14. KD

    On the procedural piece: assume SA’s suit gets thrown out, they refile, some egg on their face, but so what in the long term? It does bear the hallmarks of an unnecessary, self-inflicted injury but no one will care in the long-term, and you have the built in “When the perpetrators of genocide are acting in the world, we aren’t going to wait around to complete some legal checklist before rising against the down-pressers.” Once they wipe off the egg, SA’s armor will still be shining brilliantly.

    I understand some believe there can be no delay but it seems likely that its going to be very hard to get a panel of judges, particularly at a preliminary level of the proceeding, to make some strong finding especially given the politics. This is likely going to take years before any resolution, and SA’s victory is hardly assured whatever the merits of the claim.

    On the other hand, if Israel is saying there is no dispute between Israel and SA, ergo no case, that is somewhat problematic for Israel because if there is no international dispute with SA over SA’s claims that Israel’s war in Gaza is being undertaken in violation of international genocide conventions, then why is Israel fighting SA’s suit? If Israel is contesting SA’s claims, one can reasonably infer that there is a bona fide international dispute between SA and Israel over the applicability of the Genocide Convention to Israel’s conduct of its war in Gaza. Further, what nation doesn’t legally dispute it is a conducting a genocide in violation of international treaties? Its practically self evident from the nature of the allegations.

    I would be surprised if this kind of quibbling carried the day, unless it was an excuse to avoid addressing the substance by the Judges looking to duck the case. Further, I don’t see throwing the case out on some hyper-technicality is going to do much on the public relations front for the ICJ.

    1. Alan Roxdale

      Throwing out a case like this on a technicality would destroy the credibility of the court and every judge on it. No-one would ever take the ICJ seriously again.

  15. RookieEMT

    I want to be shocked by how part of Israel’s defense is to accuse South Africa of being terrorists but I mean, it’s pretty much expected.

    “South Africa enjoys close relations with Hamas,” Becker charged. “These relations have continued unabated even after the October 7 atrocities.” He says that South Africa, not Israel, should be subjected to provisional measures by the ICJ for its support of Hamas. – Jeremy Scahill

    1. Yves Smith Post author

      Israel also made pretty snide remarks about South Africa being in cahoots with Hamas and depicted much of its filing as being Hamas propaganda. There was a lot in the oral arguments that was very hard to take.

      1. ChrisFromGA

        Well, if Israel is arguing that SA is in cahoots with Hamas that actually makes the case that there is a legitimate dispute between the two countries, because now SA is not just a bystander or observer, but an active participant in the hostilities.

        Hoisted by their own petard?

        1. Yves Smith Post author

          No. Hamas is not a state actor that is party to Genocide Convention. Israel has two beefs: first, (this is I think just a whinge) that South Africa is acting as a cat’s paw to a party with no standing before the ICJ; second, Hamas not being party to the ICJ means the ICJ can (arguably) constrain Israel while Hamas can continue to wage war.

          1. ChrisFromGA

            I’m starting to get the picture that the Genocide Convention has huge gaps. It sounds then that the only party, according to that interpretation, that would have the standing to bring a case for genocide before the ICJ would have to be:

            (a) A state actor, and
            (b) In an active dispute with the party being charged, and
            (c) be a party to the Genocide Convention

            Under that interpretation, only the Palestinian Authority would qualify, I think. And that even sounds iffy, as Israel hasn’t bombed the West Bank along with other alleged genocidal acts done in Gaza.

            To make an analogy, a hypothetical:

            The US under a future dystopian scenario commits genocidal acts against Latin American immigrants. Under the rules of the ICJ as I understand them, nobody could bring a case against the US under the ICJ because there is no state actor representing the displaced immigrants in the US. Mexico or Ecuador would not have standing because they weren’t in an active dispute with the US.

            Plus, the US is not a party to the convention.

            Probably time for me to stop thinking.

          2. KD

            Pretty easy solution for Israel: Just recognize Gaza as a sovereign nation on condition that Hamas signs the Genocide Convention on behalf of Gaza, problem solved. They might even get their hostages back.

            1. Yves Smith Post author

              Israel has many ways to reverse course if it wanted to. It doesn’t. Pretty much the entire public in Israel is unified around the idea of erm, substantially reducing the Palestinian population in Israel.

              The more I think about it, the issue is that what Israel wanted to happen was another Nakba. They wanted to expel the Palestinians from Gaza, as in ethnically cleanse them. They have now been stumbling around with Plan B now that no one is willing (except at the margin, as in taking in wounded patients) to accommodate them and accept the population of Gaza. So they have proceeded down the path of genocide, on the mistaken belief that if they made clear that they were absolutely serious about getting Palestinians out of Gaza, the rest of the world would relent and let them resettle the Gazans.

              Now ethnically cleansing is awful and typically involves killing a lot of people. But this seems to me why Israel is able to produce a record of official policies that include a not trivial number that are at odds with genocide, as in some measures to get food and medical equipment into Gaza. Some of these may be the result of US pressure, let us not kid ourselves.

              But as much as anyone who has been following this horror closely has seen many many statements by members of the public and even many members of the Knesset of genocidal intent, it is the government and not influential randos who are subject to this case. And the actual policies appear (I stress appear) to include measures to provide at least some aid, consistent with the initial scheme to dump the Palestinians somewhere else. That may be enough to quash the “provisional matters” petition and kick into into the normal (slow-moving) dispute process.

        2. CA

          Well, if Israel is arguing that SA is in cahoots with Hamas that actually makes the case that there is a legitimate dispute between the two countries, because now SA is not just a bystander or observer, but an active participant in the hostilities.

          [ No; this is incorrect and sadly offensive.

          South Africa is acting for the sake of peace and for the sake of lives. South Africa is acting in the moral tradition of Nelson Mandela and should be honored for so acting. ]

      2. Kouros

        Snide remarks?! Calling SA as the legal arm of Hamas is not a “snide remark”… I am not sure how many points they gained with the udges though…

    2. JonnyJames

      And it is well-known that Israel supported Apartheid South Africa to the hilt. As Ray McGovern would say: “these folks give hypocrisy a bad name”

  16. Mac

    Google “South Africa white Farmer deaths and land expropriations”
    before getting too excited about South Africa’s
    court action on land seizures and genocide.

    1. CA

      Google “South Africa…

      [ South Africa is acting nobly, heroically. South Africa is acting on behalf of peace and life; acting in the tradition of superb humanist, Nelson Mandela. ]

  17. Milla

    South Africa’s current problem largely arises from the lack of proper address of land redistribution. Land and industry continue to be concentrated in the hands of rich white people, while most of the black are still left without access to modes of production and wealth. Yes, scattered efforts were made but without proper support to ensure that the assets could be brought into full productive potential.

    Mandela made a Faustian bargain with the Whites to end Apartheid but not address the economic wrongs of stolen land and white economic oligarchy. Given Israel’s role in the diamond trade, it seems likely that it was culpable in some of the post-Aparteid dysfunctions.

    1. Synoia

      Two Points

      1, The Zulu depopulated much of south Africa before the Afrikaans trekked north.
      2, Hunter gatherers do not view land ownership n the sane manner as western farmers ers.

      1. Milla

        Still stolen, just more distantly. On “economic wrongs of stolen land” I was not thinking of restoring historic property whose claims are likely difficult to trace at this point. It’s about equitable distribution of means of production to a poor and oppressed class of people, so they are able to provide for themselves and not have to resort to desperate or criminal measures to provide for themselves.

  18. David in Friday Harbor

    A legal proceeding is not a football match. I recommend reading Craig Murray’s excellent description of the South African presentation.

    Murray was in the room and has a high-level understanding of international jurisprudence. He found the South African legal team’s presentation to be perfectly measured and devastating in effect. The Israeli defense team appeared arrogant, but the South African lawyers did an excellent job of anticipating and rebutting arguments against their case. They also refrained from the emotional appeals and atrocity-porn that the Israelis will rely upon to attempt to sway the court.

    Something that strikes me is the racist undertone of U.S. and U.K. media coverage, displaying photographs of South African government officials who are male and black, while the actual legal team is quite diverse in terms of age, gender, and race. Murray remarks on how the South African group appear to be mutually supportive, respectful, and cohesive.

    Murray also notes the obvious discomfort of the court. I’m embarrassed to say that the President of the ICJ was an undergraduate contemporary of mine; I didn’t know her but it wouldn’t surprise me if we had classes together. Murray describes her as a, “Clinton hack who has never formed an original idea in her life…”

    South Africa has a long tradition of jurisprudential excellence, and they appear to have made a devastating presentation. I have nothing but respect for South African lawyers. It is the court itself that is on trial.

  19. Es s Ce tera

    Sorry, I might be missing something. Is Israel arguing that SA can only have standing IFF Israel was committing genocide against SA, a state to state issue, and it does not have a case because Palestinians are not South African or, according to them, a state? What qualifies as an “existing dispute between two countries” in the case of one country committing genocide and the other saying stop that. For example Bosnia/Serbia, would the Bosnia be required to have officially notified Serbia, by registered letter, that what they’re doing is genocide and please cease and desist forthwith, otherwise there’s no case before the court? Or Rwanda wasn’t genocide because the genocide was an “internal matter” and not between states?

    This doesn’t seem very intuitive or logical, I’m having trouble following and wanting to read what international law actually says about this “procedural matter”. It’s not at all obvious to me.

  20. Alan Roxdale

    Not having objected to Israel’s genocidal conduct and allowing Israel to reply (cringemakingly, as one Israel attorney put it, “to assuage their concerns”) sounds as if in and of itself it may be fatal to the South Africa case.

    This sounds ridiculous to me. A litigant has to contact and make an effort at pre-agreement with a criminal in the middle of committing an offense? Is there even the implication that any formal procedure of such a kind needs to be completed? Are people underneath a genocide expected to make these filings/agreement efforts before appealing to the court?
    The dispute is obvious to all and sundry. It needs to introduction or formalities.

    Israel objected to the fact that South Africa had relied on the statements of two officials, neither of whom were members of the two bodies that were prosecuting the campaign in Gaza, the War Cabinet and the National Security Committee.

    Total hogwash. Whatever these subcommittees are, the government is a collective entity. Anyone arguing the Ministers for Finance or Internal Security have nothing to do with the conduct of an ongoing war must have bridges to sell.

    If the court wants to hang its credibility out to dry on this kind of bullshit, it wasn’t worth much to begin with.

    1. nippersdad

      Apologies, they really don’t spend much time on this aspect of the case. Still well worth watching, though.

  21. Rain

    I can only see 2 scenarios with Israels weak “defence ” of Hamas the true genocidal org, “self-defence”, we have allowed “aid” , “out of context” etc easily debunked lies we have all heard beforee blah, blah..
    Possible outcomes
    1. Israel lose, so no need to do much, just ignore it , refuse to accept the courts jurisdiction, like they have always done and suppress media and dissent;
    2. Israel “win”, so no need to do much either and use it for PR

    If the latter happens, we will all know, ( in a week or two when decision on interim measure of ceasefire is due)
    whether or not the ICJ is just as corrupted by the PTBs as the ICC.

    Either way, its the last possible legal diplomatic path available so if it fails, pro-palestine orgs, will need to fight harder (perhaps not in time), BDS movement, and/or the Arab/Persian/Turkic nations do *something*.

  22. john r fiore

    The “procedural” attack was ridicuous and laughable…S. Africa was the first to pull its ambassador from Israel. Look, the evidence is irrefutable..only a kangaroo court could rule against S. Africa. Israel had the arrogance not even to provide a written brief…their “best” advocate, Shaw, fumbled and bumbled numerous times, losing his place, reminding one of Biden. Humanity is at stake here, either the court intervenes or everyone in Gaza will die…

  23. Lena

    About John Dugard, the South African lawyer in the scarlet robe:

    Dugard was born in Fort Beaufort, South Africa. He is a distinguished international law expert with wide experience. He has served as a Judge ad hoc on the ICJ since 2008 (including cases involving the Congo). For 15 years, Dugard was a member of the UN International Law Commission (ILC), the UN body responsible for the development and codification of international law. In 2000, he was appointed Chairman of the UN Commission on Human Rights in the Occupied Territory of Palestine. From 2001-2008, Dugard was the UN Special Rapporteur for Occupied Palestine, whose role is to examine, monitor, advise and report on human rights problems. Since that time, he has devoted much of his work to Palestinian human rights.

    All of the above leads me to believe he knows quite well what he is doing.

  24. AG

    Norman Finkelstein quite broadly, Mouin Rabbani in part mirror Yves Smith´s worries, albeit NOT getting into the procedural issue since Finkelstein argues, they have zero info on that.

    (Additionally I would argue in the light of genocide and what is known to the public since Oct. 7th such administrative argument could hurt the ICJ´s credibility – but that´s my private view lacking any expertise.)

    Finkelstein says ICJ will formally accept the case but then attached with so many caveats that Israel will be fine. On the basis of “yes-but” and “both parties are right”. So in essence nothing will change.

    Rabbani agrees that they both are pessimistic since Israel made its case – assuming that the judges are not as well informed as they should be and will most likely never read the Hundreds of pages the Israelis will probably hand over to ICJ later to make their point. Reading such a massive overblown statement would force the judges to acknowledge that Israel has been laying out lies over lies even in front of the court. But who will rea 840 pages?

    And keeping in mind that there is a likelihood that the judges of the ICJ will follow orders/warnings of their national governments which in part are NATO states or affiliates:

    on ICJ composition of judges to quote a reader´s comment from Craig Murray´s forum:

    “A recent incident raises this concern is what happened to the vice president of the court, a Russian Kirill Gevorgian. Again according to Wikipedia he was voted out and in his place a Romanian judge was appointed.

    “On 9 November 2023, at the 2023 International Court of Justice judges election, Gevorgian failed to be re-elected as the Eastern European representative at the ICJ, marking the first time that Russia would not be represented at the Court. Gevorgian received the votes of 77 UN General Assembly members, while Romania’s representative, Bogdan Aurescu, received that of 117, being elected instead.[3]”

    Of the current 15 members on the ICJ website 5 are NATO members, US, Romania (as per above), France, Slovakia and Germany. There are also Japan and Australia who are NATO affiliates. If the US can twist the arm of one of the other 8 they may manage to get a majority that will not condemn Israel. Given the vehemence by which Israel and the US have taken on this case, I fear we may have the wrong outcome to what is desired.”

    For Finkelstein´s and Rabbani´s excellent analyses see for yourself part 3 (as mentioned by me in this post) of a 4 part-podcast on the ICJ hearing:

    part 3

    part 1 and 2 so far:

  25. WillD

    Getting off on a technicality will tell the world that Israel was unable to or afraid of defending the charge of genocide. Just as a not-guilty verdict would be regarded as a successful whitewash due to high pressure from western governments, and thus not plausible.

    Either way, Israel will not escape world opinion. It has committed extreme crimes against humanity supported by tons of evidence that it can’t easily refute.

    I would be far more willing to give Israel the benefit of the doubt on this case, if it weren’t for its terrible track record of persecution of the Palestinians over the last 75 years or so, and the very public statements of ‘genocidal’ intent by senior Israeli politicians over the last 3 months.

    This trial therefore is a trial of both Israel and also of the ICJ. A guilty verdict will uphold the credibility of the court, and confirm world opinion. A not guilty verdict will badly damage credibility of the court, and confirm the belief that the US and western governments successfully corrupted the judges. It will not exonerate Israel one bit.

    The US realises also that a guilty verdict will severely damage what’s left of its standing in the world, and we can be sure that it is doing everything it can right now to put the judges under such pressure that they will be terrified to return a guilty verdict. So, I expect the ICJ will either try to find a way of dismissing the case on a technicality (which would save face for it, Israel and the US), or return a verdict of not guilty for other ‘technical’ reasons, such as the inability to verify evidence, or some such.

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