Nimer Sultany
@NimerSultany
6h
Initial thoughts on South Africa's brilliant presentation of its case for provisional measures in the Genocide case at the ICJ:
A thread
Jan 11, 2024 · 1:04 PM UTC
South Africa a tightly argued, comprehensive, and compelling application. It has now supplemented that by a compellingly argued and powerfully presented oral presentation.
Like in its submission, S.A. started by insisting on context: Nakba since 1948; ongoing denial of self-determination and right to return. 75-year apartheid, 56-year occupation, 16 year siege. It stated that decades of impunity have emboldened Israel to intensify its crimes
Minister of Justice reminded the world that violence and suffering did not begin on 7 oct. Palestinians have been subjected to violence and dispossession for 75 years, and for every day since 7 oct. That Gaza is occupied, because Israel has effectively controlled it.
The overall strength of the presentation that followed lies both in its remarkable and harrowing detailing of the facts and in its anticipation of Israel's arguments, replying to them effectively.
It is excepted that Israel will show Oct 7 images, videos. But S.A. Minister of Justice and Vaughan Lowe both argued powerfully that regardless of Hamas actions Israel cannot commit genocide.
Thus, should Israel argue it acted in Self-defence, S.A. already showed it has no application. It is irrelevant. o Nothing can ever justify genocide. No exceptions can be made in provisional measures that would allow Israel to violate Genocide Convention.
Another argument that Israel is expected to make would seek to downplay the statements made by officials and public figures. But as S.A. argued effectively against this line.
In addition to intent evident from conduct, it argued that an "extraordinary feature of this case" is that Israeli leaders systematically and explicitly declared their genocidal intent, and that was repeated by soldiers on ground.
This intent rooted in the belief that the enemy is not Hamas but embedded in the fabric of Palestinian life in Gaza. Israeli statements are not open to neutral interpretation or after-the-fact reinterpretations by Israel.
The argument that "we did not mean it" or "taken out of context" is "without merit" because a "distinctive feature of this case not silence but reiteration and repetition of genocidal speech in every sphere in Israeli state. Not fringes but embedded in state policy."
Thus a double argument:
1. Israel’s actions show systematic pattern of conduct from which genocide can be inferred. 13 weeks of evidence.
2. Evidence of genocidal intent is "chilling, overwhelming and incontrovertible."
Israel is also expected, like Myanmar in the case against Gambia, to claim that there is no dispute between the states and thus no jurisdiction for the court to intervene. Dugald's presentation rebutted that effectively. Recalling, e.g., that ICC referred Israel to ICC.
Max du Plassis made the case re convention rights and link to measures requested. He cited WTP that scale, severity, speed of destruction is unprecedented in Gaza. Reminded court that issuing prov. measures does not require that that the "only plausible interpretation of thels" is Gencodial. It is enough that they are capable of falling within Genocide convention. Referring to the issuing of measures in Gambia v. Myanmar case, he said that rights of palestinians in Gaza are no less worthy of protection by court.
The most powerful presentation was by the brilliant Blinne Ni Ghralaigh, who laid bare the catastrophic nature of the situation and made a compelling case, if there ever been one, for issuing measures to save Gazan lives.
Without a halt to military activity there will be no end to the extreme situation in Gaza that turned to uninhabitable and place of death and despair, Blinne Ni Ghralaigh argued. Adding that
Should the court fail to issue prov. meas., it will be a complete departure of long line of jurisprudence for the court not to order p.m. in this case.
The imminent risk compels the indication of prov. measures.
The very reputation of international law hangs in the balance, said Ni Ghralaigh. The International community repeatedly failed in Rwanda, Rohingya, Gaza. Continues to fail Palestinian people despite genocidal rhetoric matched by the acts on the ground.
This the first genocide in history where victims are broadcasting their destruction in the hopes that the world will save them. An assault on basic precepts of humanity in 90 days of hell. The world should be ashamed. Gazans' hopes for survival are in the hands of the court.
Vaughan Lowe anticipated Israel's argument that that orders are not necessary: Israeli statements do not prevent prov. meas. as per case law; efficacy doubted because Israel denies it did anything wrong; and risk if not issued is appalling.
S.A. concluded presentation by stating that consequences of not issuing measures & not taking steps would very grave for the Palestinians in Gaza who remain at further risk of genocidal actions; undermine the integrity of convention, rights of S.A., and reputation of this court.
Overall, a very power presentation, and given the court's case law, and given the lower threshold required for issuing provisional measures, it will be very surprising if the court does not issue provisional measures against Israel. The question is which ones.
Should ICJ issues measures against Israel this will put every country that is a party to the Genocide Convention that they, like South Africa, need to discharge their obligations to prev ent Genocide and act against Israel's actions and protect Palestinians,
This also should prompt reflection amongst al those governments and media outlets who supported Israel war, because they have been supporting a Genocide.
End.
https://nitter.net/NimerSultany/status/1745431469298684220#m
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