You may perhaps be curious, as I was to read the one dissenting opinion against all aspects of the genocide case brought, for preliminary finding only, before the International Court of Justice Genocide Court. If so be mindful of the adage that "curiosity kills the cat." If still curious, read on.
By way of brief background, the case was brought in 2004 for actions taken by Israel in response to the October 7 massacre; the IGC has jurisdiction only on cases of genocide, not war crimes, not international human rights violations.
By way of further background, every international body of which I am aware (and one national body in Israel) has found at least probable cause (or the equivalent) that Israel committed genocide. It is truly beyond reasonable dispute and the votes in the case at bar 16-1, 15-2, and13-2, reflect the overwhelming consensus. Arrest warrants have been issued for the Prime Minister of Israel, for its current Defense Minister, and for its prior Defense Minister. In this case, even Israel's representative voted in favor of this prima facie showing of genocide, as did the United States. Only one Justice of the Court, a permanent member (there are temporaries), Julia Sebutinde, voted against any finding that Israel did, or preliminarily may have, committed genocide.
By way of brief statutory background:
-Israel and South Africa are signatories to the international genocide convention.
-Genocide has five, I think six, alternative enumerated elements. Alternative because not all need be supported, it is enough to constitute genocide that only one be supported by evidence.
-The genocide law requires a state actor. A lone individual cannot be a perpetrator of genocide unless acting in official capacity of a state and then it is the state who is the defendant.
-Genocide requires a cognizable victim, a people with a specific racial, ethnic, or religious identity.
-The genocide statute is also exclusionary: at the insistence of the United States when adopted (We were thinking of the German Nazi Party during World War II), political entities such as political parties, are excluded as a cognizable victim group.
-Apparently, according to the dissent, actions perpetrated in territorial disputes are also excluded.
-And, the genocide law, like all criminal statutes, requires an intent to commit genocide against the victim group "as such", that is an specific intent to exterminate a victim group.
Finally, by way of brief summary of the dissent, Justice Sebutinde finds:
-That the Court lacks jurisdiction
-That the seventy-plus year dispute between Israel and the Palestinians is political and territorial, thus taking it outside the definition of genocide.
So with that as background, we turn to the dissenting opinion of Justice Julia Sebutinde in South Africa v Israel, which can be found in its entirety here, and to learned legal commentary by the undersigned.
Synopsis:
In my respectful dissenting opinion the dispute between the State of Israel
and the people of Palestine is essentially and historically a political one,
calling for a diplomatic or negotiated settlement...
...
Thus, while it is not inconceivable that grave violations of international humanitarian law amounting to war crimes or crimes against humanity could have been committed against the civilian populations both in Israel and in Gaza (a matter over which the Court has no jurisdiction in the present case), such grave violations [i.e. war crimes or violations of International Humanitarian Law] do not, in and of themselves, constitute “acts of genocide” as defined in Article II of the Genocide Convention, unless it can be demonstrated that they were committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."
She is granting the people of Israel and the Palestinian people of Gaza equal footing, but neither the actions of Israeli Jews nor Gaza Palestinians on Oct. 7 acted "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." That is: Hamas, a political party, attacked what, fucking Likud?, not Jewish people "as such"?; and Likud, a political party, attacked Hamas, a political party, not the Gaza Palestinian people "as such"? This is absurd.
Furthermore, I am also strongly of the view that the controversy or dispute between the State of Israel and the people of Palestine is essentially and historically a political or territorial (and, I dare say, ideological) one.
In other words, the Palestinians are not a people...But she uses the phrase "people of Palestine." ?? Does she view Hamas as the "people of Palestine"? Are Israeli Jews not a "people"?
It is my considered opinion that the dispute or controversy is not a legal one calling for judicial settlement by the International Court of Justice. Unfortunately, the failure, reluctance or inability of States to resolve political controversies such as this one through effective diplomacy or negotiations may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention...
An appreciation of the historical controversy between the State of Israel and the people of Palestine is a necessary prerequisite to appreciating the context in which the Court is seised with the present case.
II. Political Context of the Israeli-Palestinian Conflict
Israel's creation was a political decision.5. The United Nations has been heavily involved in the Israeli-Palestinian conflict throughout its history. In 1947, only two years after the founding of the United Nations, the General Assembly recommended a plan of partition regarding the government of the Mandate of Palestine. That plan provided for the creation of two independent States — one Jewish and one Arab — in recognition of the dual rights of self-determination by the Jewish and Arab inhabitants of the land (General Assembly resolution 181 (II) of 29 November 1947). This laid the foundation for the creation of the State of Israel in May 1948. Unfortunately, the rejection of the partition plan by certain Arab leaders and the outbreak of war in 1948 prevented the realization of the laudable goal of two States for two peoples. Since that time, and in particular since the Israeli seizure of the West Bank and Gaza Strip in the 1967 Arab Israeli war, the United Nations has remained seised of the conflict.
7. The international community’s focus on encouraging negotiation between the parties has borne fruit, including the 1979 peace treaty between Israel and Egypt and 1994 peace agreement between Israel and Jordan. Most notably, the 1993 Oslo Accords resulted in the recognition by the Palestinian
Liberation Organization (“PLO”) of the State of Israel and the recognition by Israel of the PLO as the representative of the Palestinian people.
...
8. Since that time, the United Nations has repeatedly affirmed the need for negotiations aimed at achieving a two-State solution and resolving the dispute between Israel and Palestine. In 2003, the Security Council, in resolution 1515, “[e]ndorse[d] the Quartet Performance-based Roadmap to a
Permanent Two-State Solution to the Israeli-Palestinian Conflict” (the Quartet was composed of representatives of the United States, European Union, Russian Federation and United Nations) (Security Council resolution 1515 of 19 November 2003). ...Similarly, the Security Council in 2008 declared its support for negotiations between the parties and “support[ed] the parties’ agreed principles for the bilateral negotiating process and their determined efforts to reach their goal of concluding a peace treaty resolving all outstanding issues” (Security Council resolution 1850 of
16 December 2008). ...
Okay, so all of this is political efforts and in her opinion, once politics always politics.
10. Finally, the Court has itself previously pronounced on the importance of continued negotiations. ...
11. As can be seen from the above history, it is clear that a permanent solution to the Israeli-Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State solution. A solution cannot be imposed from outside, much less through judicial settlement. This context must be kept in mind...
I really think this woman has a brain defect. She is writing that once political, always political, never can be genocidal. What would she consider an Iranian nuclear attack on Israel that wiped out the entire population? Iran has stated numerous times that it's intent is to wipe Israel off the face of the earth? "Oh, but see that's then a territorial dispute not genocidal intent." :o
III. The Events of 7 October 2023
12.
On 7 October 2023, thousands of members of the Harakat al-Muqawama
al-Islamiya (“Islamic Resistance Movement” or “Hamas”), a Palestinian
Sunni Islamic political and military organization governing the Gaza Strip,
invaded the territory of the State of Israel under cover of thousands of
rockets fired indiscriminately into Israel and committed massacres, mutilations, rapes and abductions of hundreds of Israeli civilians, including men,
women and children. (Israel reports that over 1,200 people were murdered
that day, more than 5,500 maimed, and over 240 hostages abducted, including infants, entire families, the elderly, the disabled, as well as Holocaust
survivors.) ...
13. Soon after the 7 October attack, Israel, in exercise of what it describes
as “its right to defend itself”, launched a “military operation” into the Gaza
Strip whose objective was, first, to defeat Hamas and its network and,
secondly, to rescue the Israeli hostages. South Africa claims that as a result
of the armed conflict that ensued between Israel and Hamas over the past
11 weeks, 1.9 million Palestinians living in Gaza (85 per cent of the population) have been internally displaced; over 22,000 Palestinians, including
over 7,729 children, have been killed; over 7,780 are missing and/or presumed dead under the rubble; over 55,243 are severely injured or have
suffered mental harm; and vast areas of Gaza, including entire neighbourhoods have been destroyed including 355,000 homes, places of worship,
cemeteries, cultural and archaeological sites, hospitals and other critical
infrastructure.
14. On 28 December 2023, South Africa filed an Application with the Registry instituting proceedings against Israel concerning alleged violations of
the Genocide Convention. South Africa alleges that the acts taken by Israel
against the Palestinian people in the wake of the attacks in Israel of 7 October 2023 are genocidal in character because “they are intended to bring
about the destruction of a substantial part of the Palestinian national, racial
and ethnical group, that being the part of the Palestinian group in the Gaza
Strip” (Application, para. 1). In South Africa’s view, Israel has violated its
obligations under the Genocide Convention in several respects, including by
failing to prevent genocide; committing genocide; and failing to prevent or punish the direct and public incitement to genocide. ...
15. ...For its part, Israel, whilst acknowledging that the
events of 7 October 2023 and the ensuing war between Hamas and Israel
have wracked untold suffering on innocent Israeli and Palestinian civilians,
including unprecedented loss of life, protests the Applicant’s description of
Israel’s conduct during this war as “genocide”. Israel argues that not every
conflict is genocidal, nor does the threat or use of force necessarily constitute an act of genocide within the meaning of Article II of the Genocide
Convention. Israel maintains that, in view of the ongoing threat, brutality
and lawlessness of Hamas that it continues to face, it has an inherent and
legitimate duty to protect the Israeli people and territory, in accordance with
international humanitarian law, from attack by an armed group or groups that have openly declared their intention to annihilate the Jewish State. In
Israel’s view, South Africa’s present request for the indication of provisional
measures is tantamount to an attempt to deny Israel its ability to meet its
legal obligation to defend its citizens, rescue its hostages still in Hamas custody and to enable the over 110,000 internally displaced Israelis to safely
return to their homes. ...
...
IV A. There Are No Indicators of a Genocidal Intent
on the Part of Israel
...
What distinguishes
the crime of genocide from other grave violations of international human
rights law (including those enumerated in Article II, paragraphs (a) to (d), of
the Genocide Convention) is the existence of the “intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such”.
That "as such" again. If a state says, "No, no, no, we were intent on destroying the political group The Federalist Society and some anti-Federalists got in the way as collateral damage, there is an incontrovertible presumptions in our favor that we did not seek to destroy Jews or Palestinians, or Presbyterians, "as such". It is preposterous.
Accordingly, the acts complained of by South Africa, as well as the rights correlated to those acts, can only be capable of “falling within the scope of the said Convention” if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.
...
20. Israel contests that it is committing acts of genocide in Gaza or that it
has a specific intent to destroy, in whole or in part, the Palestinian people, as
such. Israel emphasized that its war is not against the Palestinian people as
such, but rather is against Hamas, the terrorist organization in control of
Gaza that is bent on annihilating the State of Israel.
That is what she is doing. Israel says, "What us? Genocide? Nah. We're going against a political party, Hamas; 85% of Gaza Palestinians voted for Hamas, you know, Court. Yes, some children and women and journalists and hospitals got in the way and there was an unfortunate diet that Palestinian Gazans were conducting in extremis, but diets are fads, sort of like political parties and we can kill them."
Israel states that the sole
objectives of its military operation in Gaza are the rescue of Israeli hostages
abducted on 7 October 2023 and the protection of the Israeli people from
displacement and from any future attacks by Hamas, including by neutralizing Hamas’ command structures and machinery. The Respondent further
argues that any genocidal intent alleged by the Applicant is negated by
(1) Israel’s restricted and targeted attacks of legitimate military targets in
Gaza;
"Restricted and targeted attacks on military targets"! Ho ho ho.
(2) its mitigation of civilian harm by warning them through leaflets,
radio messages and telephone calls of impending attacks;...
Righttt, Palestinians intentionally disconnected their phones.
...and (3) its facilitation of humanitarian assistance.
Like closing the only exit gate from Gaza resulting in starvation and a humanitarian crisis. In fairness not due her I note that the ICJ Order to which Justice Sebutinde dissented, was issued on January 26, 2024, before the gate closure and the starvation crisis. Perhaps she has changed her mind. Or gotten a frontal lobotomy.
Israel also argues that the statements relied
upon by South Africa as containing genocidal rhetoric were all taken out of
context and in fact were made in reference to Hamas, not the Palestinian
people as such.
There is that phrase again, "as such". It wasn't the Palestinian people "as such" who were targeted or threatened by language with extermination (and if it was the statements were "taken out of context"), it was HAMAS "as such" all of whom are Palestinian. The babies, the elderly, the journalists, the emergency responders were all part of HAMAS, not the Palestinian people "as such". lol
Moreover, Israel argued that any other persons who might
have made statements containing genocidal rhetoric were completely outside the policy and decision-making processes of the State of Israel.
This is deadly serious stuff but I'm sorry I have to guffaw at that last, and some other of the above. Judge Sebutinde is a Likud plant or the functional equivalent.
21. As stated above, the tragic events of 7 October 2023 as well as the
ensuing war in Gaza are symptoms of a more deeply engrained political controversy between the State of Israel and the people of Palestine.
It's politics all the way down. Under Justice Sebutinde's logic, no "political controversy" can ever devolve into genocide.
Having
examined the evidence put forward by each of the Parties, I am not convinced
that a prima facie showing of a genocidal intent, by way of indicators, has
been made out against Israel.
-The war was not started by Israel but rather by
Hamas who attacked Israel on 7 October 2023 thereby sparking off the military operation in Israel’s defence and in a bid to rescue its hostages.
What does who started it have to do with the price of tea in China? If someone murders my child, may I murder him? No! Not under any legal definition of self-defense. Retribution is not self-defense. Justice Sebutinde incorporates Israel's arguments in toto in her dissent, accepting them as fact!
Look:
I
also must agree that any “genocidal intent” alleged by the Applicant is
negated by (1) Israel’s restricted and targeted attacks of legitimate military
targets in Gaza; (2) its mitigation of civilian harm by warning them through
leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of humanitarian assistance. A careful examination of Israel’s war
policy and of the full statements of the responsible government officials further demonstrates the absence of a genocidal intent. ...
...Here I must hasten to
add that Israel is expected to conduct its military operation in accordance
with international humanitarian law but violations of IHL cannot be the
subject of these proceedings which are purely pursuant to the Genocide
Convention. Unfortunately, the scale of suffering and death experienced in
Gaza is exacerbated not by genocidal intent, but rather by several factors,
including the tactics of the Hamas organization itself which often entails its
forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.
Much of that is true. Hamas does embed. Some of it is not true.
22. Regarding the statements of Israeli top officials and politicians that
South Africa cited as containing genocidal rhetoric, a careful examination of
those statements, read in their proper and full context, shows that South
Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements
referred to the destruction of Hamas and not the Palestinian people as such.
Certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the
Israeli Government itself. More importantly, the official war policy of the
Israeli Government, as presented to the Court, contains no indicators of a
genocidal intent. In my assessment, there are also no indicators of incitement
to commit genocide.
23. In sum, I am not convinced that the acts complained of by the Applicant are capable of falling within the scope of the Genocide Convention, in
particular because it has not been shown, even on a prima facie basis, that
Israel’s conduct in Gaza is accompanied by the necessary genocidal intent.
Is your curiosity satisfied? You're welcome.
