The application in which South Africa accuses Israel of Genocide needs to be taken seriously because of what is in the document, and not because of anything about it.
SAvIIt is trite that international law prohibits the use of force by a state with two exceptions:
- When authorized by the Security Council of the UN; and
- When acting in self-defense.
The use of self-defense is governed by Article 51 of the United Nations Charter, which provides that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
(Emphasis added)
An uncontroversial statement of the international law of self-defense, at its widest, is as follows – uncontroversial in the sense that I expect that this is consistent with any source one may consult. Indeed, this definition is common to domestic systems of law and is, in a sense, universal. It is helpful to break the requirements into those that relate to the attack, and those which, if the requirements of an attack are satisfied, relate to the force permitted in response, as follows:
REQUIREMENTS OF THE ATTACK
Following the Charter, self-defense is available:
- “if an armed attack occurs”;
Then, at its broadest, relying on the argument that the mention of the “inherent right” to self-defense of a state imports the law as it was before the Charter was enacted, force may be used where an armed attack:
- has commenced or is imminent;
- is against the security or vital interests of a state.
REQUIREMENTS OF THE RESPONSE
If satisfied, force may be used in response. The trite law relating to the force which may be used in response is that the force:
- Must be directed at another state (more recently interpreted to include states which harbor ‘terrorists” – but, as in the case of al-Qaeda and Afghanistan, where the conduct of the “terrorists” may be attributed to that state);
- Is necessary to end the attack or, in the case of an imminent attack, to prevent the attack;
- Is proportional to the force used in the attack or imminent attack – it may not be excessive in relation to the imminent or commenced attack.
The application of South Africa to the International Court of Justice is a serious indictment of the conduct of Israel.
It is not more serious or less serious because of who wrote it – as some say. It is not more or less serious because of the country from which it emanates.
I do not say so because I am from South Africa. I know that South Africa has its own very serious problems – but none of that detracts from what is in the document. It does not even matter why it was written – what is in it transcends all of this. Let the credit or the blame fall where it will. Put the name-calling aside.
Read it and then think. Think very hard and carefully.
It makes the argument, thoroughly well-referenced, that Israel has acted disproportionately, with the necessary intention to act disproportionately. When I say thoroughly well referenced, I mean not only is the application well referenced quantitatively but also qualitatively. The references are to incontrovertible facts, or, where the references are to opinions, they are to the opinions of people whose opinions matter.
In addition, the application argues, again, thoroughly well referenced, that Israel has failed to observe the requirement of international humanitarian law, of “distinction” – and that it has done so intentionally. The International Committee of the Red Cross (ICRC) defines the principle as follows:
Under the principle of distinction, all involved in the armed conflict must distinguish between … combatants [who may be targeted] and civilians [who must be protected].
(https://casebook.icrc.org/law/principle-distinction)
In addition, the principle requires that combatants must distinguish themselves from civilians.
While the definition is uncontroversial, the ICRC seems to accept that in modern warfare, the application of this principle is “challenged”. Nevertheless, what remains uncontroversial is that a combatant state acting in self-defense, cannot ignore the principle and must actively work to make the distinction, and then may only target combatants.
The application makes the argument, as stated above, that Israel has not only ignored the distinction but it/they have deliberately refused to take account of the distinction between combatants and civilians. In this way, so the argument goes, Israel had deliberately targeted civilians.
Having read the application, it seems that Israel has a case to answer. I say this not because of anything about the application, but because of what is in it.