Palestinian Genocide Scholar & South African Lawyer on “Extreme Urgency” of World Court Case

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.

NERMEEN SHAIKH: We’re joined now by two guests to discuss South Africa’s historic genocide case against Israel at the International Court of Justice in The Hague. Today marked the first hearing out of two days of arguments, with South Africa outlining its case that Israel has violated the 1948 U.N. Genocide Convention, saying its three-month assault on Gaza is being conducted with the intent to bring about the destruction of Palestinians as a group.

AMY GOODMAN: In Jerusalem, Maha Abdallah is a Palestinian genocide scholar, a graduate teaching assistant and Ph.D. researcher at the Faculty of Law at the University of Antwerp. And joining us from Johannesburg, South Africa, Kaajal Ramjathan-Keogh, South African human rights lawyer, directs the Africa program of the International Commission of Jurists, which is dedicated to defending human rights and the rule of law worldwide.

We welcome you both to Democracy Now! Let’s begin in South Africa with Kaajal. If you could start off by talking about the significance of today’s hearing, that finished just before we went to air? What is the International Court of Justice? How unusual is it to bring a kind of case like this? If you could take it from there?

KAAJAL RAMJATHAN–KEOGH: Yes, sure. Hi, everybody.

So, to talk about the hearing and the International Court of Justice, the International Court of Justice is a world court which adjudicates issues and cases between states. So it is different from the International Criminal Court in that way. Where the ICJ — where the ICC would prosecute individuals on international criminal concerns, the International Court of Justice only deals with issues between state parties. And this is the reason why South Africa has filed this case before the International Court of Justice.

And it was a pretty remarkable hearing. You’ve said already about the historical significance of this hearing. There have been previous cases at the International Court of Justice dealing with genocide, but those previous cases have not attracted as much attention and interest as this particular case.

NERMEEN SHAIKH: So, Kaajal, could you explain how often it’s been the case that a case has been brought to the ICJ by a country that is not one of the parties involved in the conflict? Because one thinks most recently of the case of Russia and Ukraine, which Ukraine brought, or, in fact, the first genocide case that was heard at the International Court of Justice, which, of course, had to do with Srebrenica, the genocide of Bosnians in the Yugoslavia War.

KAAJAL RAMJATHAN–KEOGH: Yes. So, the court can deal with any issues. Issues of genocide, of course, have — there have not been many cases of genocide brought before the court. In this particular case, however, both South Africa and Israel are members of the U.N. They’ve both signed on to the Genocide Convention, and, as a result of their membership of the U.N. and signature of the Genocide Convention, may be held responsible and have responsibilities under this convention. And this is the reason which established South Africa’s grounds for filing the case.

There have been other cases brought against member states who are not — who have not signed the Genocide Convention. Those cases are more difficult. It is more difficult, in particular, to try and enforce any findings or to establish jurisdiction of the court in order to look into those cases. But the court may still make preliminary findings, may make other findings which are and can be very useful in trying to protect individuals who are being affected by genocide and actions connected to genocide.

NERMEEN SHAIKH: And so, if you could begin, Kaajal, just by explaining — of course, the decision, as everyone has said, is likely to take years on the case itself, on the merits — what are the provisional measures that South Africa is calling for in the interim?

KAAJAL RAMJATHAN–KEOGH: Yes. So, essentially what South Africa is calling for is a ceasefire in Gaza. They’ve set this out in a number of ways. They’re asking for the blockade in Gaza to cease immediately. They’re asking for the cease of the bombings and the actions which are causing the death of — killing of Palestinians, destruction of their homes, expulsion, displacement, blockade on food, water, medical assistance, as well as the imposition of measures preventing Palestinian births by destroying essential health services which are crucial for the survival of pregnant women and babies. And these are all listed as genocidal actions in the suit. So, there’s a whole range of actions which they’re calling for an immediate cease on. And these are the provisional measures which South Africa seeks at the current time.

AMY GOODMAN: Maha Abdallah, you are a Palestinian genocide scholar. Can you explain the significance of this going to the International Court of Justice, and how people are responding in Israel and Palestine?

MAHA ABDALLAH: Thank you for having me.

This is a historic moment for the Palestinian people in their pursuit for justice and accountability, decades after the imposition of a settler-colonial and apartheid regime against the Palestinian people that has dispossessed and fragmented the Palestinians without accountability and with near-total impunity. So, the fact that Israel today stands on trial is very significant, very important. But, of course, we recognize the possibilities and the different scenarios that are forthcoming.

And the fact that Israel is on trial for the crime of genocide is also significant because, as the application of the South Africa before the International Court of Justice states, that the crime of genocide and the alleged genocidal acts and omissions by the state of Israel are part of a continuum. They do not happen in a vacuum. They’re part and parcel of the ongoing Nakba imposed on the Palestinian people. And for that, there needs to be accountability.

As for the reactions, unfortunately, I have not yet been able to interact with many people. The hearing session just finished. But I know that most of us Palestinians, whether in Palestine or in diaspora or in exile, we have been waiting for this moment, and all eyes have been on the ICJ, on The Hague today. And we have been thinking about the Palestinians in Gaza and how they perceive the current hearing sessions more than 90 days after complete devastation, more than 90 days after significant and extreme and severe loss, destruction and pain inflicted on the Palestinians there for the purpose of the destruction of the group. And, of course, we think of Palestinians in exile who have been also mentioned by the South African ambassador in his introductory remarks, when he spoke about the denial, the deliberate denial, of the Palestinian people’s right to self-determination, which includes the right of return for Palestinians in refugee camps across the neighboring countries.

NERMEEN SHAIKH: So, let me just turn — Maha, thank you for that — to Israeli Prime Minister Benjamin Netanyahu, who spoke Wednesday, one day before today’s hearing at the International Court of Justice in The Hague, responding to the hearing.

PRIME MINISTER BENJAMIN NETANYAHU: I want to make a few points absolutely clear. Israel has no intention of permanently occupying Gaza or displacing its civilian population. Israel is fighting Hamas terrorists, not the Palestinian population. And we are doing so in full compliance with international law. The IDF is doing its utmost to minimize civilian casualties, while Hamas is doing its utmost to maximize them by using Palestinian civilians as human shields. The IDF urges Palestinian civilians to leave war zones by disseminating leaflets, making phone calls, providing safe passage corridors, while Hamas prevents Palestinians from leaving at gunpoint, and often with gunfire. Our goal is to rid Gaza of Hamas terrorists and free our hostages. Once this is achieved, Gaza can be demilitarized and deradicalized, thereby creating a possibility for a better future for Israel and Palestinians alike.

NERMEEN SHAIKH: So, that was Israeli Prime Minister Benjamin Netanyahu. Maha, if you could respond to what he said regarding the case that is now ongoing at the International Court of Justice?

MAHA ABDALLAH: I think this is a baseless statement. And the statements over the past 13 weeks-plus, and even prior to the 7th of October, have been genocidal in intent, have, you know, showcased how Israeli political leaders, Israeli military leaders have the specific intent for — aiming for the destruction of the Palestinian people, using different means and methods, through different policies, practices, laws, military orders. And the fact that there has been an apartheid regime imposed for 75 years, along with a belligerent occupation for 56 years, a blockade and closure on the Gaza Strip, and the incarceration of an entire people, as well, these are all precursors and drivers of genocide. And the genocidal statements that we’ve been hearing since 13 weeks now cannot be simply put aside or disregarded by a simple statement the night before the hearing sessions start at the ICJ.

NERMEEN SHAIKH: And, Maha, could you explain — you know, what do you hope will come out of this, knowing that, of course, a decision may take several years, but there could be these provisional measures that are put in place, even though they’re not, in fact, enforceable, the court does not have the capacity to enforce the measures?

MAHA ABDALLAH: The most and foremost important thing to come out of this, from this application and these proceedings at the moment, is for the court to order Israel to stop its aggression, to stop its hostilities, to stop its military operations against the Gaza Strip. And this is particularly important considering the severity, the scale and the gravity of the situation in the Gaza Strip, but also the failure of the international system, of the international community, to come to a consensus and to order Israel at the U.N. Security Council, but also in other spheres, to push it to put an end to this genocidal aggression against the Palestinians.

And as you said, the merits of the case, the actual decision of whether there is genocide or not by the court, will take years. But for the moment, what is mostly important is a need to stop this genocidal aggression, to safeguard and to protect whatever is possible to save at this moment of Palestinian life, of Palestinian dignity and of Palestinian rights.

AMY GOODMAN: Kaajal Ramjathan-Keogh, I wanted to ask you about Hamas. It is a nonstate player here. How does it fit into this decision? And also, because there isn’t enforcement, what is the role particularly of the United States, since it sits on the U.N. Security Council, which, of course, is related to the International Court of Justice as a U.N. body?

KAAJAL RAMJATHAN–KEOGH: Yes. The South African legal team set out very clearly the position of Hamas in this particular matter. And what they said in their submissions was that the International Court of Justice is there to adjudicate matters and cases between states. Hamas is not a state, and therefore Hamas is not part of this application. No claims have been brought against Hamas, and no claims can be brought against Hamas at this particular tribunal. There are other tribunals in which Hamas can be — crimes against Hamas can be brought, but this is not the appropriate tribunal for that particular issue. So, that deals with the issue of Hamas.

Talking about the U.S. and their involvement in this case, the U.S., as we know, are longtime friends with Israel. If there is — in the event that there is a final decision made by the court and the court makes findings on genocide and genocidal intent against Israel, of course, there is no immediate obligation on Israel to act on these findings, and we don’t expect Israel to comply with these findings, which will then lead to the matter being presented to the U.N. Security Council to try and enforce this compliance. And at that point, with the U.S. being a permanent member of the Security Council, they could, of course, use their veto powers to block any actions against Israel. So that would be a very serious challenge related to compliance of any findings of this court.

NERMEEN SHAIKH: Well, Kaajal, apart from the U.N. Security Council, of course, the person who leads the International Court of Justice, of the 15 judges, the president is an American, Joan Donoghue, and the vice president is a Russian, Kirill Gevorgian. So, if you could say — I mean, ostensibly, the judges are supposed to be impartial, but in the most recent case last year with Russia and Ukraine, the only countries to abstain from the vote, which was otherwise 13 people voted for Russia withdrawing from Ukraine, the provisional measure, China and Russia were the only two who did not. So, if you could say, just in terms of precedents, do judges, more or less, make decisions that coincide with the policies of their countries, or is it the case that this is an exception?

KAAJAL RAMJATHAN–KEOGH: Yeah, yes. So, judges are supposed to be independent. We expect judges to be independent. Judicial independence is the cornerstone of all democracies. We require judicial independence to be able to support us, and support us to claim our rights and to claim our democracies. It’s a means — it’s a hugely important means of protection.

We’ve seen previously at the ICJ, in the Ukraine v. Russia case, both the Russian and the Chinese judges offer dissenting opinions. I would hope — I would very much hope that the American judge, the president of the court, does feel an obligation to be independent, properly independent, in this matter. There is, of course, no guarantee of this. There is very little which can be done in the event of the American judge dissenting, making findings which are not in line with the majority of the court. And this is essentially the problem of the International Court of Justice, in that it can take on a relatively political slant in the decisions which it issues.

AMY GOODMAN: And now their terms are up — the American, she has had a number of positions at the State Department before, Joan Donoghue — are up in February, so they could be up before this decision is released. Is that right, Kaajal?

KAAJAL RAMJATHAN–KEOGH: I’m not aware of when her term is up, so I can’t really comment on that. But the fact that she’s sitting on the issue of provisional measures means that she will have some impact on what happens as the court makes findings on provisional measures. And if, however, the court decides to go into the merits of the case and proceeds with the matter, then she will no longer sit on the case going forward, but we don’t know who will replace her. So that’s an unknown, but it’s not guaranteed that there won’t be U.S. influence on the case going forward.

NERMEEN SHAIKH: So, Maha Abdallah, just as we wrap up, if you could just give us your final thoughts, your assessment of what the situation is right now in Gaza, what you hope will come out of this?

MAHA ABDALLAH: Again, as I mentioned, I hope that this — that following the hearing sessions and on the basis of precedent by the very same court, where it has issued provisional measures within days’ or weeks’ time on, let’s say, similar cases, but not entirely alike, that the court will order the state of Israel to stop its aggression, to stop its military operations against the Gaza Strip and its people.

The Gaza Strip, as we have seen, there is the large-scale destruction, extensive killings taking place, ongoing and relentless bombardment and killings that are taking place. The catastrophe is so immense that we’re unable to understand or comprehend. Between the starvation, the dehydration, the lack of medical facilities and accessibility to medical supplies, to the most basic necessities for life and dignity, and for life and survival even, together with the fact that it’s under a total siege, blockade and closure that has intensified since the 7th of October, the mass displacement and forcible displacement and transfer of more than 1.9 million Palestinians into areas that are also being targeted and bombed by Israel and its military, all of these require immediate action, and immediate action that should not have taken place today or yesterday, but three months ago.

So, this is — we don’t have time. Palestinians in the Gaza Strip and in the entirety of Palestine, we do not have the privilege of time. So this is why the court — the proceedings before the court, as rightly stated by South Africa in its application, they are of extreme urgency. So the court must immediately act and respond to the urgent situation, again, against the backdrop of the failure of the international system and the international justice mechanisms, as well as the complicity, the open-ended complicity, and support emboldening Israel’s action, emboldening Israel’s atrocities and recurrence and intensification of these violations and grave breaches and international crimes being committed against the Palestinian people.

AMY GOODMAN: Maha Abdallah, I want to thank you for being with us, Palestinian genocide scholar, speaking to us from Jerusalem, and Kaajal Ramjathan-Keogh, South African human rights lawyer, speaking to us from Johannesburg.

Next up, an exclusive report in The Guardian revealing how carbon emissions from Israel’s war on Gaza will have an immense effect on the climate crisis. Back in 20 seconds.