Why is the First Judgment of the International (Hague) Court of Justice on Israel and Genocide Significant?

The Hague Court of Justice's First Israeli Decision

The International Court of Justice (ICJ), as it is sometimes referred to in the press and in public opinion, is also known and used as the Hague Court of Justice or the World Court. It is perfectly normal. It is preferable to call it by this name because it is located in The Hague in the Netherlands, like many other international judicial bodies, and this is correct. In other words, the International Court of Justice is a United Nations (UN) organization, and its addressees are UN member states. In other words, it is the main judicial body established by the UN and is one of the five main organs of the UN that are active today, together with the Security Council, the General Assembly, the General Secretariat and the Economic and Social Council. In addition to this Court, there is also an "International Court of Arbitration". 

As the name suggests, it is an international authority to which states apply to resolve the disputes that they cannot resolve between them, more often bilaterally, through a letter of arbitration. So, does the court have sanctioning power? No, but it is binding in terms of its consequences, such as the payment of reparations. On the one hand, Germany continues to pay reparations to the victims of genocide, and on the other hand, it fulfills its obligation to be compensated as the primary perpetrator in cases it caused. For example, during the commemorations of the 80th anniversary of the lifting of the siege of Leningrad, it was reported by the German Foreign Office that it took responsibility for the siege of Leningrad and financed the renovation of a hospital in St. Petersburg where most of the survivors of the siege were treated. 

In order to impose sanctions, which will undoubtedly be in the content of the resolution, the resolution, whether unanimous or majority, is sent to the UN Security Council. The sanction power is exercised by the UNSC. The legal framework is the 19-article "UN Convention on the Prevention and Punishment of the Crime of Genocide".  The Convention was adopted by the UN General Assembly Resolution 260 A (III) of 9 December 1948 and entered into force on 12 January 1951. The most important feature of the crime of genocide is that there is no statute of limitations. Another characteristic is the principle of retroactivity. As a natural rule of law, this principle has been adopted in order to maintain international order and peace, to protect the confidence in the law and to protect the trust in the law. 

The elements of genocide mentioned in the Convention are planning, organization, intention and motivation. Intent is the act of performing an act knowingly and intentionally. However, in some types of crimes, the existence of special intent in addition to general intent is one of the indispensable rules for the formation of the crime. This special intent arises from the motive, incitement and encouragement of the perpetrator, which is stated in the definition of the crime and which must be present in the perpetrator. The crime of genocide is one of the crimes committed with special intent. It should be emphasized that in order for an act to be characterized as genocide, there must be an intention to "destroy people belonging to a group solely because they belong to that group." For the crime of genocide to occur, the perpetrator must have the motive to destroy all or some of the specified groups in addition to the general intent. This specific intent, which is included in the definition of the crime, is an important element that distinguishes the crime of genocide from other crimes. In the absence of this specific intent (the motive to destroy all or part of the group), the act committed by the perpetrator is not considered within the scope of the crime of genocide, but if other conditions are met, it may fall within the scope of another crime such as crime against humanity or ordinary intentional manslaughter regulated in criminal law. (1) 

The Israeli rulers who made the decisions and ordered the implementation of the operations aimed at the destruction of the Palestinian people, as well as the oppressive officials who directed and implemented the operations, have demonstrated and are demonstrating before all humanity their intention to destroy people simply because they are members of the Palestinian nation. (2) 

Criminal law punishes individuals. The crime of genocide is committed by individuals, just like the crimes of manslaughter, pickpocketing or theft. Participation in the crime is also an individual act. (2) In short, genocide crimes are individual and participation is also individual. 

However, it seems that those who are ignorant of this issue, but who define themselves as experts in quotation marks, confuse MAD with the International Criminal Court subject to the Rome Statute, which entered into force in 2002, and other courts in the historical process. Therefore, within the scope of this article, the term "International Court of Justice" (MAD) is used specifically to avoid confusion with other "International" courts. 

Let us now examine this issue together in a historical process. Sir, the Nuremberg and Tokyo International Military Tribunals, established after World War II, were ad hoc in nature and tried three types of crimes committed by German and Japanese officials before and during World War II: "crimes against peace", "war crimes" and "crimes against humanity". This was the era of the League of Nations. The 1951 "UN Convention on the Prevention and Punishment of the Crime of Genocide" does not yet exist and has not entered into force. The scope of crimes against humanity can be determined by looking at the statutes of the Nuremberg and Tokyo trials and other international criminal tribunals established after the Cold War. After the Nuremberg Statute, the statutes of the International Criminal Tribunal for the Former Yugoslavia (EYUCM), the International Criminal Tribunal for Rwanda (RUCM) and the International Criminal Tribunal for Rome have introduced different definitions of crimes against humanity. It is noteworthy that all of these tribunals are more characterized by the specificity of the place where the crime was committed. 

After this obligatory general explanation, let us now turn to the nature of the crime of genocide that Israel has committed and is committing against the Palestinian people and the first decision of the MAD on Israel. First of all, let us say that the MAD, which consists of 17 judges in The Hague, is chaired by a US judge, Ms. Joan Donoghue, and one of its members is an Israeli judge. It was the Israeli judge who cast the only negative vote on the non-acceptance of the case by Israel. The judgments, orders, declarations, documents, testimony and other evidence relating to the criminal acts as defined in the convention, and the link between the criminal acts and the perpetrators of the crimes, which South Africa attached to the 9-point application to the court, were found to be reasonable by 16 votes against one Israeli negative vote. There is no getting away from it, the court considered itself competent to hear the case.  

It ruled on the merits to hear the case against Israel. The court rejected Israel's request for 'dismissal of the case' and listed the injunctions that Israel should obtain. In other words, it ruled that the allegations against Israel were "reasonably" proven, even with the evidence presented so far.  The fact that the President of the Court, US Judge Joan E. Donoghue, stated that they are very aware of the humanitarian tragedy in Gaza and that they are deeply concerned about the loss of life clearly reveals the human tragedy. Presiding Judge Donoghue made it clear to the world that Israel's "motion to dismiss the case is denied", stating that the court has the power to grant an injunction for Israel's violation of some of its obligations under the UN Genocide Convention. 

After stating that some of Israel's actions in Gaza fall within the provisions of the UN Genocide Convention, Donoghue emphasized in capital letters that Israel's military operation in Gaza has caused many deaths, injuries, large-scale destruction, forced displacement of large parts of the population and extensive damage to civilian infrastructure.  Donogue also emphasized that the Palestinians in Gaza fall within the definition of a "protected group" under Article 2 of the Genocide Convention, thus cementing and reinforcing the juxtaposition of the words Israel and Genocide.

The International Court of Justice, which also ruled on South Africa's request for the court to "issue an injunction for the immediate cessation of operations in Gaza", accepted Israel's "taking all measures to prevent genocide in Gaza" with 15 judges voting in favor and 2 judges voting against. The Court also emphasized that Israel must prevent the destruction of any evidence that could be used in a genocide trial, and must prevent and punish any statements that could be considered incitement to genocide in Gaza.

The Court also decided by 16 votes to 1 that Israel must report to the Court within one month on what measures have been taken to prevent genocide in Gaza. Judge Donoghue also noted that this decision creates international legal obligations for Israel. The International Court of Justice further held, by 16 votes to 1, that Israel must take immediate and effective measures to guarantee the delivery of urgent humanitarian aid to Gaza. 

In terms of individuality, the MAD has also taken it upon itself to take cognizance of statements made by Israeli officials that point to genocide. In this context, Presiding Judge Donoghue, in the court's judgment, also highlighted statements by Israeli government officials that pointed to "genocide". In this context, Donoghue recalled that Israeli Defense Minister Yoav Gallant had "ordered a total siege of Gaza" and that Israel was fighting "humanoid animals" and would "exterminate the entire population of Gaza". Donoghue also recalled Israeli President Isaac Herzog's statements that "everyone is responsible" in Gaza and that they will pay the price. 

In conclusion, the International Court of Justice's acceptance of Israel's genocide allegation submitted by South Africa as a jurisdiction makes it clear that Israel will be tried for the crime of genocide. Moreover, even this first judgment directly linking Israel to the crime of genocide paves the way for Israel to pay strong compensation to Palestine. The fact that the Court did not directly call for a ceasefire is the handicap part of the judgment, but its decision to prevent civilian casualties and to control the damage to the area as soon as possible due to the clear violation of the measure is of a nature to weaken Israel. (3) It has also been observed, dear readers, that this first MAD resolution does not fully respond to South Africa's demand for a 'ceasefire', although it implicitly includes a call for a ceasefire in the context of precautionary measures.   

Footnotes

(1) Ersin Şare, "Special Kast in the Crime of Genocide", Hacettepe Law Faculty Journal, Ankara, 2020, pp 863-912; https://doi.org/10.32957/hacettepehdf.757611/Erişim Date 28.01.2024/

(2) Aydınlık Foreign News Service, "Chief Speaker Perinçek: Israel is Committing Genocide", Aydınlık Newspaper, Istanbul, November 23, 2023, p. 14

(3) Benginur İkbal Akgül "What does the Court of Justice's decision on Israel mean?", TRT Haber, 26.01.2024; https://www.trthaber.com/haber/dunya/adalet-divaninin-israil-karari-ne-anlama-geliyor-832288.html/Erişim Date 28.01.2024/