Holger Hes, a leading expert in international law, discusses South Africa's case against Israel for alleged genocide in Gaza, exploring the legal aspects, Israel's defense, and challenges within international law.
South Africa alleges that Israel is failing to prevent and committing genocide in the current conflict in Gaza, while Israel maintains there is no genocidal intent and points out acts of terrorism by Hamas.
The International Court of Justice (ICJ) is examining South Africa's case against Israel based on the Genocide Convention, but the ICJ's judgments are declaratory and lack enforceability, highlighting the challenges of seeking justice for genocide without a robust enforcement mechanism.
Deep dives
The Case and Definition of Genocide
The podcast explores the case brought by South Africa against Israel in the International Court of Justice, where South Africa alleges that Israel is failing to prevent genocide, conspiring to commit genocide, and committing genocide. The podcast also discusses the legal definition of genocide, which consists of two elements: atrocious acts against a group and the intent to destroy that group. South Africa argues that Israel's actions and genocidal statements provide evidence of genocidal intent, while Israel maintains that there is no genocidal intent and points out the acts of terrorism and self-defense by Hamas.
The Role of the International Court of Justice
The podcast explains the role of the International Court of Justice (ICJ) as the highest international court, handling cases brought by one state against another state. The ICJ examines cases based on the Genocide Convention, and while it can issue provisional measures to protect rights, its judgments are declaratory and lack enforceability. The podcast highlights previous cases related to genocide brought to the ICJ, such as the cases during the Yugoslavian Wars and the recent cases of Gambia against Myanmar and Ukraine against Russia. Germany and Namibia are also involved in the case, with Germany supporting Israel, and Namibia criticizing Germany's intervention due to historical reasons.
The Arguments and Potential Consequences
The podcast explores the arguments presented by South Africa and Israel during the hearings. South Africa presents evidence of genocidal acts and intent, including statements made by various individuals. Israel contends that there is no genocidal intent and highlights the commands given to its armed forces to abide by international law. The podcast discusses the potential consequences if Israel is found guilty of committing or failing to prevent genocide, noting that the ICJ might issue a declaratory judgment and order restitution or compensation, but enforcement would rely on the willingness of the state to comply. The podcast raises the question of whether the ICJ is fulfilling its intended purpose and acknowledges the challenges of seeking justice for crimes like genocide without a robust enforcement mechanism.
Three months into the war in Gaza, the conflict has reached a courtroom: the International Court of Justice in the Hague. South Africa says we are witnessing a genocide take place in real time. Israel has called the claims ‘preposterous’. A leading expert in international law walks us through the case and its possible consequences.
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Guest: Holger Hestermeyer, Professor of International and EU Law, Diplomatic Academy of Vienna.
Host: Luke Jones.
Clips: United Nations, Channel 4 News, LBC, Sky News.