There has been much anguished discussion about Israel’s conduct of its military operation in Gaza and its allegedly genocidal nature.
Judge John Murphy currently serves as a Judge of Appeal of the Competition Appeals Court. He is a Judge of the South African High Court and formerly Chairperson of the Sanctions Board of the World Bank and President of the United Nations Appeals Tribunal.
The prohibition found expression in Article 2 of the UN Charter which outlaws acts of armed aggression by one State against another. The proscription is qualified by the exception in Article 51 which provides that nothing in the UN Charter shall impair a State’s inherent right of self-defence against an armed attack. It is upon this provision, or its spirit, which Israel relies, in part, to justify its operation against Hamas.
Although none of the Nazi accused at Nuremberg was convicted of genocide, the Genocide Convention owes its provenance to debates about the scope of the criminal charges and the perspectives of two eminent international lawyers involved in the trials, Hersch Lauterpacht and Rafael Lemkin, Jewish refugees from the Holocaust, who never met, but by remarkable coincidence were both born in the city of Lviv in Ukraine.
Lemkin was vindicated not long after the Nuremberg trials with the adoption of the Genocide Convention in 1948 declaring genocide a crime under international law. The adoption of the Genocide Convention was seen as fitting international recognition of the need to “liberate mankind from… the odious scourge” inflicted upon the Jewish people during the Holocaust and World War 2.
The essence of the Geneva Conventions is the principle that persons not actively engaged in warfare should be treated humanely. The only legitimate object which States should endeavour to accomplish during a war is to weaken the military forces of the enemy and thus a distinction must at all times be drawn between civilians and combatants. Belligerent attacks must be strictly limited to objects which contribute to military action or offer a definite military advantage.
Six weeks later, on 28 December 2023, South Africa took the unprecedented step of referring a case of genocide against Israel to the ICJ in terms of Article IX of the Genocide Convention seeking orders: i) declaring Israel in breach of the Genocide Convention; ii) directing Israel to cease killing or causing serious bodily or mental harm to Palestinians and deliberately inflicting conditions of life calculated to bring about the destruction in whole or in part of the Palestinian group; and iii)...
Israel has also destroyed at least 195 heritage sites, 208 mosques, three churches and the Gaza Central Archives thereby erasing 150 years of history. Fifteen percent of the women giving birth in Gaza are likely to experience complications, and thus maternal and newborn death rates are expected to increase due to the lack of access to medical care.
The Special Rapporteur on Palestine delivered her report to the Human Rights Council on 25 March 2024. As a point of departure, the SR maintains that the displacing and erasing of the indigenous Arab presence in Palestine has been an inevitable part of the forming of Israel as a Jewish state; and “the settler-colonial project through military occupation has stripped the Palestinian people of their right to self-determination”.
The letter accordingly calls on the Prime Minister to take various actions including imposing sanctions upon persons inciting genocide against Palestinians, suspending the provision of weapons to Israel and the possible suspension of the UK’s bilateral trade agreement with Israel. The application requests the ICJ to declare that Germany has contributed to the commission of genocide by rendering aid or assistance to the military operation in Gaza, in particular by providing political, financial and military support to Israel fully aware that military equipment provided by Germany to Israel will enable Israel to perpetrate genocidal acts and other atrocities.
A longer more sustainable resolution, of course, would be the attainment of the two-State solution favoured by the international community. Some are urging for the unilateral imposition of the two-State solution by UN resolution, in keeping with the spirit of any residual obligations under the British Mandate for Palestine which formally expired in 1947.
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