Chimène Keitner on South Africa, Israel, and the Genocide Convention
Jan 17, 2024
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Chimène Keitner, Martin Luther King Jr. Professor of Law at the University of California, discusses South Africa's petition against Israel under the Genocide Convention. Topics include analyzing genocidal intent, the impact of statements at the International Criminal Court, cybercrime targeting, and the challenges judges face in this complex issue.
South Africa has filed a case against Israel in the ICJ under the Genocide Convention, alleging violations based on killings, displacement, and incitement to genocide against Palestinians in Gaza.
The ICJ will evaluate the plausibility of genocidal intent based on the conduct and statements of Israeli actors and is expected to issue a decision on provisional measures soon.
The outcome of the case will influence discussions on the legal framework of the Israeli-Palestinian conflict and the role of international institutions in resolving similar disputes.
Deep dives
South Africa's Genocide Convention Case Against Israel
South Africa has filed a case in the International Court of Justice (ICJ) against Israel, alleging violations of the Genocide Convention. South Africa argues that Israel has plausibly violated the convention by committing acts including killings, displacement, and incitement to genocide against Palestinians in Gaza. South Africa's case focuses on the scale of devastation and the compilation of comments made by Israeli government and civil society actors that dehumanize Palestinians. Israel's defense asserts that its actions are not genocidal, but rather a response to Hamas attacks and that the necessary intent for genocide is not present. The ICJ is expected to issue a decision on provisional measures by the end of the month.
Legal Framework of the Genocide Convention and ICJ Jurisdiction
The Genocide Convention, a multilateral treaty, defined genocide as acts committed with the specific intent to destroy a national, racial, or ethnic group. The ICJ, an international court, has jurisdiction over disputes between states under the Genocide Convention. South Africa argues that Israel's conduct in Gaza falls within the scope of the convention, while Israel denies the allegations and asserts compliance with international law. The court will evaluate the plausibility of genocidal intent based on the conduct and statements of Israeli actors.
Plausibility of Genocidal Intent and Adversarial Arguments
The plausibility of genocidal intent is a key point in the case. South Africa argues that the scale of devastation and dehumanizing statements provide circumstantial evidence of genocidal intent. Israel, on the other hand, contends that the intent was to target Hamas, not Palestinians as a whole, and that care was taken to minimize civilian casualties. The court will consider the conduct, statements, and contextual factors to assess plausibility, but it is unlikely to make a definitive determination on merits at this preliminary stage.
Motivations and Expectations
South Africa's motivations in bringing the case appear multifaceted, including sympathy with the Palestinian struggle, anti-Western sentiment, and using international institutions for advocacy. The court's decision on provisional measures is expected to strike a balance, not necessarily satisfying all parties involved. Details of the order may address humanitarian concerns, a potential ceasefire, and emphasize Israel's compliance with its genocide convention obligations. The court aims to alleviate human suffering while recognizing Israel's obligation to protect its population.
Implications and Uncertainties
The ICJ's decision on provisional measures will be issued by the end of the month. However, the case's resolution on the merits will take much longer. The court's decision will likely face criticism and may not satisfy all parties due to the diverse perspectives and strong emotions surrounding the Israeli-Palestinian conflict. The outcome will influence discussions on the conflict's legal framework and the role of international institutions in resolving disputes of this nature.
Chimène Keitner is the Martin Luther King Jr. Professor of Law at the University of California at Davis. She is a leading international law authority and served for a number of years at the State Department’s Office of the Legal Adviser. She is the author of a lengthy piece in Lawfare about South Africa's petition under the Genocide Convention against Israel in the International Court of Justice.
Chimène joined Lawfare Editor-in-Chief Benjamin Wittes to talk about the litigation. What is South Africa's claim under the Genocide Convention? What is Israel's defense? Where are both sides vulnerable? And how will the court likely consider the matter at this preliminary stage?