The Reasonings by the 2 Dissenting Judges on the ICJ’s Genocide Case by South Africa against Israel

Eric Zuesse (blogs at https://theduran.com/author/eric-zuesse/)

There were 17 judges ruling on this case, including one from South Africa and one from Israel. Both of those two judges were not regular members of the Court but were included only because this ‘International Court of Justice’ was treating this matter as-if not “justice” (in criminal law — which this case was supposed to be about) but instead equity (in civil law — which is irrelevant to this criminal case) were at-issue (and therefore needing to be ‘balanced’, instead of to be concerned only to determine in the case “the truth, the whole truth, and nothing but the truth” as being the SOLE basis for valid judgment on the matter.

Page 26 of the 29-page ruling has paragraph 85: “The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”

The 84-page South African document that had brought criminal charges against Israel, titled “APPLICATION INSTITUTING PROCEEDINGS”, said in the opening paragraph of its Introduction:

South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’),1 whether as a matter of law or morality. The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’).

So: the 7 October 2023 Hamas attacks against Israelis was not an issue or topic in the case that South Africa had brought to the Court.

Nonetheless — and appealing to public sentiments instead of to the actual case that was supposed to be at hand — paragraph 85 of its decision on the case pandered by essentially accepting as true there what both South Africa and Israel agree upon — as-if it were even pertinent (relevant) to this case (which it is not). One isn’t supposed to bring up in a criminal trial — or any trial — a matter about which both the prosecution and the defense are in agreement. It distracts from the case-at-hand and can serve only to distort judgments.

So: right there, in the paragraph that comes immediately before the Court’s judgment in the case, which is paragraph 86, the Court makes clear that the decision isn’t entirely excluding pandering. That is pandering to Israel’s side of this dispute. But South Africa had already accepted that detail of Israel’s side. It was irrelevant and was brought up by the judges purely pandering to public opinion — in Israel’s favor. It had nothing to do with whether or not Israel is, in fact, genociding Gazans.

To what extent did the ruling pander, and was it fairly balanced in its (irrelevant but popular — among supporters of Israel) panderings?

The next paragraph (86) is the one that everybody talks about, and so it is merely linked-to here as being on pages 26-29 of the pdf if you want to read it.

As is indicated there, the two dissenting ‘Justices’ in the Court’s 6-part order to Israel were Julia Sebutinde (Uganda) and Aharon Barak (Israel), and Sebutinde dissented on all 6 whereas Barak dissented only on 3 out of those 6. In each of those two instances, the jurist summarized up-front in the decision what the supposed ‘reasoning’ for the dissent was. Here both of those two summaries are shown:

Sebutinde

DISSENTING OPINION OF JUDGE SEBUTINDE

The dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant SecurityCouncil resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist

 It is not a legal dispute susceptible of judicial settlement by the Court

 Some of the preconditions for the indication of provisional measures have not been met

 South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention

 Similarly, since the acts allegedly committed by Israel were not accompanied by a genocidal intent, the  Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of  provisional measures are plausible under the Genocide Convention

 The provisional measures indicated by the Court in this Order are not warranted.

Barak

SEPARATE OPINION OF JUDGE AD HOC BARAK

1. South Africa came to the Court seeking the immediate suspension of the military operations in the Gaza Strip. It has wrongly sought to impute the crime of Cain to Abel. The Court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention. The Court has reaffirmed Israel’s right to defend its citizens and emphasized the importance of providing humanitarian aid to the population of Gaza. The provisional measures indicated by the Court are thus of a significantly narrower scope than those requested by South Africa.

2. Notably, the Court has emphasized that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law”, which certainly includes Hamas.

Sebutinde was treating this matter as-if it were a civil trial over something such as whether an international contract had been fulfilled according to its terms by both sides, only one side, or no side. Is that type of reasoning appropriate in a case that had been brought by a third party against one party in a war against the other party in that war — specifically by South Africa against Israel as allegedly perpetrating genocide against (not “Palestinians” but instead) the residents in Gaza? If not, then Sebutinde is a dangerously unqualified person to be sitting on this Court. Furthermore: her factual allegations (such as “the acts allegedly committed by Israel were not accompanied by a genocidal intent”) are either demonstrably false or almost certainly false, such as by this evidence cited in South Africa’s case, which evidence she entirely ignored:

The Israeli Prime Minister also returned to the theme in his ‘Christmas message’, stating: “we’re facing monsters, monsters who murdered children in front of their parents . . . This is a battle not only of Israel against these barbarians, it’s a battle of civilization against barbarism”.445 On 28 October 2023, as Israeli forces prepared their land invasion of Gaza, the Prime Minister invoked the Biblical story of the total destruction of Amalek by the Israelites, stating: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember”.446 The Prime Minister referred again to Amalek in the letter sent on 3 November 2023 to Israeli soldiers and officers.447 The relevant biblical passage reads as follows: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxens and sheep, camels and asses”.448

— President of Israel: On 12 October 2023, President Isaac Herzog made clear that Israel was not distinguishing between militants and civilians in Gaza, stating in a press conference to foreign media — in relation Palestinians in Gaza, over one million of whom are children: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”449 On 15 October 2023, echoing the words of Prime Minister Netanyahu, the President told foreign media that “we will uproot evil so that there will be good for the entire region and the world.”450 The Israeli President is one of many Israelis to have handwritten ‘messages’ on bombs to be dropped on Gaza.451

— Israeli Minister of Defence: On 9 October 2023, Defence Minister Yoav Gallant in an Israeli Army ‘situation update’ advised that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.”452 He also informed troops on the Gaza border that he had released all the restraints”,453 stating in terms that “Gaza won’t return to what it was before. We will eliminate everything.”454 …:

— Israeli Minister for National Security: On 10 November 2023, Itamar Ben-Gvir clarified the government’s position in a televised address, stating: “[t]o be clear, when we say that Hamas should be destroyed, it also means … those who support … — they’re all terrorists, and they should also be destroyed.”456

— Israeli Minister of Energy and Infrastructure: ‘Tweeting’ on 13 October 2023, Israel Katz stated: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”457 On 12 October 2023, he ‘tweeted’: “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. … And no one will preach us morality.”458

— Israeli Minister of Finance: On 8 October 2023, Bezalel Smotrich stated at a meeting of the Israeli Cabinet that “[w]e need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”459

— Israeli Minister of Heritage: On 1 November 2023, Amichai Eliyahu posted on Facebook: “The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes … We must talk about the day after. In my mind, we will hand over lots to all those who fought for Gaza over the years and to those evicted from Gush Katif” [a former Israeli settlement].460 He later argued against humanitarian aid as “[w]e wouldn’t hand the Nazis humanitarian aid”, and “there is no such thing as uninvolved civilians in Gaza”.461 He also posited a nuclear attack on the Gaza Strip.462

— Israeli Minister of Agriculture: On 11 November 2023, Avi Dichter in a television interview recalled the Nakba of 1948, in which over 80 percent of the Palestinian population of the new Israeli State was forced from or fled their homes, stating that “[w]e are now actually rolling out the Gaza Nakba”.463

…

She ignored every one of those quotations — yet each one of them was core to South Africa’s case. It was core to the motivation for this genocide that is occurring in Gaza.

And the case isn’t merely about intention; it is very much also about what Israel is actually doing. For example: see this on that, which displays not the intent but instead the results of that genocidal intent.

Barak’s reasoning was different but almost as scandalously bad: blaming South Africa for having even brought the case. Furthermore: since this ‘judge’ in the trial was actually serving instead as a defense attorney for his country Israel, he can be expected to have been serving atrociously as a judge — the ICJ had brought in as judges both a South African and an Israeli jurist so as to get a ‘balanced’ instead of a fair verdict in it. They were, at least to a large extent, treating this criminal case as-if it were instead a civil one.

By contrast to Barack: Sebutinde, who is one of the 15 regular judges on that Court, is so scandalously inadequate that she ought to be fired post-haste. But clearly, the Court itself, from the top on down, simply cannot rationally be trusted. Its problems are deep and severe. The genocide case against Israel will drag on for years and yet even at its outset, South Africa had presented a more trustworthy verdict (its case) regarding Israel than the ICJ ever will be able to, unless the entire institution becomes radically changed so as to become decent.

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Investigative historian Eric Zuesse’s latest book, AMERICA’S EMPIRE OF EVIL: Hitler’s Posthumous Victory, and Why the Social Sciences Need to Change, is about how America took over the world after World War II in order to enslave it to U.S.-and-allied billionaires. Their cartels extract the world’s wealth by control of not only their ‘news’ media but the social ‘sciences’ — duping the public.