Throughout history, humanity has witnessed countless atrocities and crimes against humanity. One of the darkest chapters in our collective memory is the Holocaust, where Nazi Germany systematically murdered six million Jews. In the aftermath of World War II, the world made a solemn pledge: Never again. This pledge led to the drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which codified and committed nations to prevent and punish the crime of crimes: genocide.
Now, more than seven decades later, the crime of genocide has resurfaced in the international arena. South Africa has accused Israel, a country deeply intertwined with the Holocaust's legacy, of committing genocide in Gaza. This accusation has brought the issue to the United Nations' highest court, the International Court of Justice (ICJ). As the world awaits the court's decision, it is essential to delve into the concept of genocide, the process of proving it, and the historical context surrounding similar cases.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide provides a legal definition of genocide. The convention defines genocide as acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group." These acts include killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the group's physical destruction, imposing measures intended to prevent births, and forcibly transferring children.
The Rome Statute, the founding treaty of the International Criminal Court (ICC), also includes genocide as one of the crimes under its jurisdiction. The ICC prosecutes individuals for genocide, war crimes, crimes against humanity, and the crime of aggression. It is important to note that the ICC is separate from the ICJ, which handles disputes between nations.
In response to Israel's military offensive in Gaza, triggered by murders and atrocities committed by Hamas militants, South Africa has taken its case to the ICJ. South Africa accuses Israel of committing genocidal acts, including killing Palestinians in Gaza, causing serious mental and bodily harm, and deliberately inflicting conditions aimed at "bringing about their physical destruction as a group." However, Israel staunchly denies these allegations and accuses South Africa of providing political cover for Hamas.
To support its case, South Africa has highlighted comments made by Israeli officials, which it claims demonstrate intent to commit genocide. Proving intent is a crucial element in establishing genocide. The intent must be to destroy, in whole or in part, a national, ethnic, racial, or religious group. This requirement poses a significant challenge in genocide cases, as intent is not always clear-cut.
Proving genocide necessitates establishing one or more of the underlying crimes listed in the convention and demonstrating intent. Intent is the key element that distinguishes genocide from other crimes. However, establishing intent can be challenging. As Marieke de Hoon, an associate professor of international law, explains, "The most important thing is that whatever happens is done with the specific intent to destroy a group, so there's no plausible alternative reason why those crimes have been committed."
In the case of Israel and South Africa, it is crucial to determine whether the widespread killing of Palestinians was intended by the Israeli government or if it was a consequence of the conflict. Intent must be deliberate and targeted towards the destruction of a specific group. South Africa has cited comments by Israeli officials to support its claim of intent, while Israel argues that these comments do not reflect government policy.
The ICJ has previously ruled on cases involving genocide. In 2007, the court found that Serbia had violated its obligation to prevent genocide during the 1995 Srebrenica massacre. The Bosnian Serb forces rounded up and murdered approximately 8,000 mostly Muslim men and boys in the Bosnian region. This ruling established that states have a duty to prevent genocide within their jurisdiction.
Currently, two other genocide cases are pending before the ICJ. Ukraine filed a case against Russia, accusing it of launching a military operation based on fabricated claims of genocide and planning acts of genocide in Ukraine. The court ordered Russia to halt its invasion, but Russia defied the order. Another case involves Gambia, on behalf of Muslim nations, accusing Myanmar of committing genocide against the Rohingya Muslim minority.
It is worth noting that both South Africa and Gambia have filed ICJ cases in conflicts they are not directly involved in. The genocide convention allows individual states, even those not directly affected, to call on the United Nations to take action to prevent or suppress acts of genocide.
International courts have played a crucial role in addressing genocide and other crimes against humanity. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda both dealt with genocide cases. The Yugoslav tribunal convicted individuals, including former Bosnian Serb leader Radovan Karadzic and his military chief General Ratko Mladic, for their involvement in the Srebrenica massacre.
The Rwanda tribunal was the first international court to hand down a genocide conviction. It found Jean Paul Akayesu guilty of genocide and other crimes and sentenced him to life imprisonment. Akayesu's conviction was for his role in Rwanda's 1994 genocide, where militants from the Hutu majority slaughtered approximately 800,000 people, primarily Tutsis. In total, the tribunal convicted 62 defendants for their roles in the genocide.
Another example is the International Criminal Court, which charged former Sudanese leader Omar al-Bashir with genocide in the Darfur region. However, al-Bashir has yet to face trial as he has not been handed over to the court. In Darfur, the Sudanese government responded to a 2003 insurgency with aerial bombings and unleashed militias known as Janjaweed. These militias are accused of mass killings and rapes, resulting in the deaths of up to 300,000 people and the displacement of 2.7 million.
Additionally, Cambodia established a hybrid domestic and international court to address the atrocities committed by the Khmer Rouge regime in the 1970s. The court convicted three individuals for their roles in the deaths of an estimated 1.7 million people.
The accusation by South Africa against Israel at the ICJ brings the crime of genocide to the forefront once again. As the court deliberates on the case, it is essential to reflect on the historical significance of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The convention serves as a reminder of the commitment made by nations to prevent and punish this heinous crime.
Proving genocide is a challenging task, requiring the establishment of both underlying crimes and intent. Previous cases before the ICJ and other international courts have highlighted the importance of holding perpetrators accountable for their actions. As the world grapples with ongoing conflicts and human rights violations, justice for genocide remains a crucial aspect of building a more peaceful and just society.