the on the go and the tonight out is there is only move i laugh is that the, this is where we, the sex from out is there is move i last available in your favorite types to just set for it and type to move the new app from out to 0 news at using is it the israel has presented its defense, said the international court of justice office off off of the argued is committing genocide in gaza. it's noise, say the case is a distortion of the truth, but did they make a compelling argument and what will come out of this unprecedented case? this is inside story, the

hello and welcome to the program. i'm 40 back to built a 2 day public hearing of south africa's genocide case against israel at the international court of justice has concluded south africa laid out a list of genocide acts by israel on the 1st day of hearing on thursday, while israel or defend itself on friday, now the cold has begun deliberations. it will decide whether south africa's case is strong enough to issue a provisional measure to stop these really military's attacks on gaza. so what's the likely outcome of this case? and when it and the suffering of palestinians will get to, i guess in just a moment, but 1st this report from echo. so i'm sure none of these atrocities she smiled again. it's blistering, a tap on what is called a dis, talked of case bus of africa. but if it has been acts that may be characterized as genocide or they may have been perpetrated against israel cost in the 3

a long session as well as lawyers argued the bones also began of to the most attack on through until the 7th, and as well as of right to defend itself, they rejected the accusation as well as military operation and gall. so they say is in that eliminating him off. i'm sick killed the release of kept his amounts to genocide. the genocide convention was a solemn promise made to the jewish people and to all peoples of never again. the applicant in effect, invites the court to betray that problems. if the term genocide can be so diminished in the way that it advocates if provisional measures can be triggered in the way that it's suggest, the convention becomes an aggressive child. it will reward indeed encourage the terrace to hide behind. surveillance is runs, representative says the quote has no jurisdiction or the complaints brought by. so

that's what the, because they relate to the laws of um conflict and not genocide to the court last spring, the federal jurisdiction on 1st the sabbatical argued the lots ki, king of siblings, most expulsion and displacement of palestinians. and inciting statements made by separate is rarely does or constitute genocide and show proof of intent. it follow the case in december, arguing that is well violated. the 1948 genocide convention in the area and ground defensive and also has more than 23000 palestinians. so fall most of whom women and children. the figure was released by the palestinian health ministry. had been questioned by these rally team. but said that with those lawyers indicated as well as defense, did not prove its case. i don't think that it was compelling to do it. but any of the issues that me put forward to the quote yesterday with dave, you know,

the arguments around submission. and typically, i'm arguing that statements from c mean need is getting from and this is the peak and it's barbara, freedom of speech in the context of, of a systemic virus. use something, that'd be fine to start machine one. so that's what the m as well onto the cases in palestine and support is randy. that son goes to both sides. south africa has long advocated for the palestinian cause, and several countries have backed its case against as well. the, the telephone itself, humans in cold, would not forge my most palestinians in gaza. dozens, list to being killed in is really strikes. i'm from the operations at the time of the hearing, a full judgment, determining whether it's well has committed genocide and casa, could take years for the i c,

j to determine the cold can issue and internal measures in the meantime, ordering as well to hold a task in gaza, let me put some settings for inside story the less now bring in all guessing. cape town, kathy powell associate professor in public law at the university of cape town and he's stumble. we have house on been him run a board member for law for palestine, a non profit, human rights organization, which records developments related to palestine and international law. and in dublin, michael becka, assistant professor of international human rights law at trinity college, dublin, and a former staff are at the international court of justice. i one welcome to you all . thank you very much for joining us on inside story. so we're going to be for focusing today on some of these really defense arguments before we discuss the likely outcome of this case at the i c. j. hass on let me start with you is route

brought the best legal minds to the hague. but did they bring the best arguments? what was it about the defense that struck you the most to come to? so to give some general preliminary examination to say or old's innovation about the argument, i think is going to your defense was in a very bad difficult situation. the defending, i'm in different type of case substantively i think is what you offer no substantive case substantively. there was nothing or close to nothing or funded by the is there any defense? however, there was a great deal of contemplation, a great deal of focus on procedural law, on jurisdiction on the procedures on the technicalities in order to prevent any compensation of the substance. since the substance has been very clearly portrayed by south africa, south africa has relied on international shows of the you and other,

other organizations, doctors without borders, so on, so forth. that's $11.00 of the situation that struck me the most, which was not to, to the unexpected book, to be on another, to be honest, more than just opposite of ation that they had the about the is there any defensive study is that it was somehow socrates appealing to the personal and political perceived inclination of the judges, which is as well, which is something that made me very uncomfortable to be honest. okay. uh we, we understand that the, the, the i, c, g and or the dimension bulk lodge is a mixture of law and politics. this is something that any legal practitioner knows by how like, this is something that is very evident. international law is not the same like domestic law that are much more complications. however, as far as the icpc is concerned, it's the most prestigious courts. it's the judicial organ. uh, okay, not to mention, it has proved to be quite professional. i would say in the we,

it deals with many issues. however, i hope this case we won't be an exception and this particularly got okay, before we jump into any conclusions. i think this case offers the new elements into the way that we see genocide look trying to lead lead, okay, and we'll be picking, picking up some of the the, the arguments and, and discussing them in more detail. let me get my goal is general overview. first of israel's defense did is really in your view, michael. make a compelling argument in response to south africa is genocide case wasn't able to provide any solid arguments on the basis of fact and law. it's very important to understand what was happening in this hearing because this was a hearing on the overall merits of the case. and the overall allegations that south africa is making under the genocide convention. this was a hearing specifically focused on whether or not south africa has satisfied the requirements to convince the court to issue these provisional measures. so israel's

task yesterday, it was not only to lay out, it was a overall rejection of south africa's claims, but it had to specifically try to rebuttal the points that are specific to provisional measures. and where i thought israel was most effective was to make the case very clearly that it wouldn't be problematic. or the courts to extend to south africa's request for a complete and immediate suspension of military operations in god. israel's argument here was that it continues to face a very serious, ongoing threat from mos. hm. and the court of israel in a position where it simply cannot defend itself so that it goes less to whether or not the courts should indicate professional measures and more to the question of exactly what those measures should be. so on that specific point i thought is

really probably did what i needed to do by the way, totally. so they were the, is my twice the comments. where do you sorry are and where do you think they were in effective in their argument? well, i think the hearing yesterday really brought to a far what's going to be a major issue in that case. and that's this gap between our perceived gap, between what israel says it's doing and what all we have it in some margin from what's happening on the ground seems to tell us which these to tell us a very different story. so is there is a reiterated in the hearing that it takes international military and lottery seriously, and it does everything that it can to avoid civilian casualties. while i am an enemy in a boss that will swallow international law at every opportunity, canada, israel is doing everything i can to deliver to man attorney and 8. but those assertions are very difficult to reconcile with the wide spread reports of. yeah,

and what was happening in the ground. so indeed indeed, cathy, let me bring you into the conversation. the 1st argument that israel fundamentally made was that file file for guy is the legal arm of her mice. and that therefore they have no credibility in making this case to the i c j. do you think they offered any legitimate evidence that south africa is operating as approx proxy of how much as the claim? and what did you thought was effective and in effective 8 in the arguments they presented in the claim that south africa is acting as an eagle. almost her most is basically relevant, even if it were true, even if it's, if it's, if south africa, southern taking orders from us, what the court has to decide is the merits of the coast to south africa brings. so the figures of stay to the right under the genocide convention to bring this case

accusing it to bias is not really getting argument very further. we need to apply the new rules as an questionnaire, marches of the state, bringing the case so that that argument was just a bit irritating. to be frank and it's a red herring. i'm the most effective part of israel's argument. i agree with michael at the the defense specifically about provisional measures was very nuanced and careful on occasionally compelling. um, it was also a producer, unexpected, a swing that spoke about the strips of south africa. and it kind of is sort of have taken to sort out the dispute between the 2 countries. yeah. call and comment on which side would start to be correct because i don't know what steps were taken, but if it is true that south africa, any fit to make no attempts to get israel to respond to it's on it's complaints about israel to allegedly genocidal acts that may have

a bearing on whether the cortez jurisdiction at all, even if it gives the court to kind of a back door if it wants to dodge the issue entirely. but i think what ended up being the most pressing issue substantively is how we deal with the relationship between self defense interested in the firm and but saw the african and and is really advocates played with this issue. and i think it's an interesting one to explore. okay, before i bring a house on it, back into the conversation to ask you about the question of genocide or intent tests on kathy, let me just pick up on what you, you said there about the question of jurisdiction is read all doing that, that south africa that, that south africa, south africa did not make interactions with it, that they had the opportunity to souls. the dispute does the law requires that they sold the dispute before taking it to the international court of justice. it's requires that the attempts to resolve it. so what's the genocide convention says is

that disputes under the convention that can be referred to the i c j and the cash flow of the i, c j is quite particular about what the word dispute means. and in particular, it requires some form of engagement between the 2 parties. it does say that because to the i c gen. so the africa relied on this, that the dispute will result when one states is x and the other states is the opposite of the case. so the i, c, j has, we'll say, emphasized that there's going to be some interaction between the 2 states on that disagreement. and it's possible that south africa wasn't careful enough on this step. i simply con on so that on the fact, okay, how fun on the question of genocidal intent to these really said there is no genocide or intent. and that the statements made by is really political, military leaders simply rhetorical,

and that we shouldn't ascribe them any important. that there is no evidence basically that there, there is genocidal intent from from israel. yeah. your thoughts about this argument and what do you think could undermine this claim? i am like it would be very happy to comment to on the issue of self defense as well . that one's both of us could come and take on the issue of intent because i think it's a pretty important discussion to have for the purpose of measures in particular. but i already got the intent, the question of mentioning it, whether it has provided a special specific special intent to destroy experience or the product of the group and took an order in past the a one week prelim. this one, historically speaking through the previous case law through the jurisprudence of the cost as well as the defend trucking on the is the statements of that either. but that was not the only way for speaking of the statements to south africa did documents some quite good, well documented sources or incidents of inciting. however,

it could have been better way better because it has had an extreme unrestrained campaign of genocide and we and also by this time have relieved few days before the hitting a database of $500.00 plus statement. you decide that the statements, but you're the leader, the chain of command, the, the, the, the, what cabinet, the, the, the, the expanded them in a cabinet, the canister, the army soldiers, the former auto and soldiers. the heads of the intelligence bodies only talking about the joints of se, not someone with them. yeah. okay. but these are not the ones they making the decision about this one. okay, what about the punishment? that's all to dispose of. what about the prevention that's also spoke about? so as far as the statements are provided, i think there is no, i mean the other genocide of q that has been well documented like this one intends of inter that's one. and that would be the, i think i'll just, it'll be covering that database that we have published you did because that's one

thing. another thing with regards to intent is that intent is not just about the statements. like, why are we expecting that everyone who wants to commit genocide, we're going to say, hey guys, i'm committed genocide. also the issue in front of that wasn't it very clearly stated in different type of those including the, that you was not the on the issue of incident like when you block the water electricity when you destroyed the health care system. right? so that's like a documented in 11 bunch of those because the function, when you decide culture, like the influence spends themselves an option that we could discuss better then further including ethnic cleansing, which is very uh, excluded from this because of discussion i, i believe it should be included with the customer and to be a we yeah indeed, there are a lot of other issues, of course that need to be included by michael. let me get your thoughts briefly about genocidal intent before i ask you about germany and its actions. uh, wanting to support this case against israel when he to support his route at the i.

c. j on the question of genocidal intent. first of all, how direct and clear does genocidal intent have to be genocide. all attached remains very difficult to prove even in situations, but we have might have abundant evidence of atrocities or where it's very clear that other types of international law violations are taking place. so it's a, it's entirely true that in this case we have the unusual circumstance of this body of evidence and direct statements that south africa has pointed to that couldn't be read as expressing directly genocidal intent. but that's going to be fiercely contest it is really we'll come back and explain why at least some of those very problematic statements have been misunderstood or taken out of context or can be attributed to the stage. but that's a big part of the case. but it will have to be connect connected exactly as the final side too. but on the ground evidence from which genocide don't intend to can be inferred. the difficulty there is that if you're going to infer tennis island

change from contextual or circumstantial evidence, this has to be the only inference but can be arrived. that's the course test. and that means that any time you have allegations of genocide in the context of armed conflict or counter terrorism, it becomes even more difficult to meet that very high threshold. but that's at the merits. that's not what south africa had to show at this stage of the case. in germany, michael, let me ask you about jimmy. they've announced that they would speak and israel's defense, as a 3rd party, a d i. c. j denying charges. that is what i was committing. genocide in gaza, how much weight will this adds to his rose defense? all right, so any party to the genocide convention under a particular procedural mechanism can come into the case as a non party intervene or later terminate and said they're going to do that. and if they are going to offer their interpretation of the convention in support of israel's position, that can sometimes add

a legal value to the case depending on what the state comes in and says. but what's really interesting about germany's intervention here isn't germany along with a handful of other states. also recently interested me in a different genocide convention case in front of the court. that's the case that the gavia has brought against me m r. hm. and that declaration is already in front of the court and sucks for germany's position and how various provisions of the genocide convention should be interpreted. and in particular, that is very important question of genocidal intent where germany and other states essentially are urging the course to take what i would describe as a slightly less restrictive approach to how you reach that standard. okay, kathy, your thoughts about gemini saying that it would speak and israel's defense. do you think this will hurt or, or help israel in his defense? it's going to depend entirely on the strength of the argument that it brings. but i'm interested to hear from michael that germany has already of motivated for

a more generous interpretation of the genocide convention, which is the very thing you sort of is arguing against in this case. um, i think that a lot of this is going to boil down to the genocide and intent, and it's going to boil down to where the general genocidal intent effects negates the kind of self defense. because that is the argument that south africa made on thursday that even if, well, if that was, it wasn't about self defense. specifically if it's about whether the blues of oil being complied was for low city. even if israel is complying with some boys of war . if it is doing service during the size of a content, it, it has no excuse it's we've got genocide and there is no justification for the down side. yeah, kathy, for the moment the court again just to clarify for of yours is not deciding on the question of genocide or intent. it's going to be voting on the provisional measures,

right? south africa has requested that israel or suspend its military of operations and which should know in a few weeks, i guess about the provisional measures. now my question is, even if the court rules in favor of the provisional measures, it doesn't have its own enforcement mechanism. we know, for example, that the court ordered russia to seize its military operations against ukraine, but that didn't happen. right. so what does this case achieve? ultimately, these provisional measures, if the court ruled in favor of the provisional measures, will it make any difference? and i will answer that, but may just quickly point out the genocidal intent remains relevant. even now you can tell that i forget has to make a prima fuck here because for a for genocide. so where the genocide and self defense kind of feature, the ultimate is important even though. but on your question of enforcement. know your, your contract the i c, j doesn't have it certain police force. the only institution is because it's can

rely on if a states refuses to comply with it, is the security council. and we know because the united states is a permanent member with future paul on the security council that the security council is not going to do anything either. so the, the force of provisional measures from the i, c j is going to be model is squared effect. most israel's model standing in the global community because it in order to issue any provisional measures, no matter how weak it will have made or preliminary finding that there is a prima fuck a case that is or is committing genocide. and that in itself is enough to effect is also negotiation with other parties in this concept. i think we must also bear in mind that israel has started to a lot of humanitarian aid in his thoughts or to claim that it's abiding with i. so as far as a to be a lot more careful with civilians instead of hospitals, most of it in the wake of south africa bringing this case. so in a way,

even before the provisional measures, i had the don assuming that you get hand to done, the case has already made a difference. it hasn't stopped the conflict and it's mike north ree. my thought it provisional measures for a ceasefire. but we have already got israel having to answer in a public forum for in particular the worst of the genocide will statements that south africa identified on thursday it has on. do you agree with kathy that the case has already made a difference? even if we, we don't know what the court will vote on the provisional measures yet. now we're discussing something about television images. and as michael said in the beginning provision imagines, i'm not what's being discussed in the heating more a ceasefire somehow. i mean, that's not the language of the south african application, but that's what could be in for the probation to measure the intended purpose is to stop the war. yeah. feeling, speeding to advance, the privilege and measures would really put the whole international law. it

wouldn't bring the whole intention to get them to try it. and then just as right now about the issue of enforceability able to jump back over the back. we know that is the long tracking drink or not suspecting any course you, but maybe this is the 1st time to accept the agreed to appear before the call because of the serious nature of the situation. i mean the accusations against them, but we know that they haven't respected any divisions by the unit and machinations to get to the council general assembly, the advisory opinions of this very courts. and they even dismiss the i c. c. previously, i guess some of the investigation, we know that is what you would not expect. however, many of its allies were provided coverage provided cover. the military, the financial media cover, the more on a couple of some how far is we have to continue with the consent about being involved in such a case that has been decided upon by across the board, canada, it might be like we see that kind of get canadian statement, while rejecting dissolved government claims you could not make any and then you get

this going to come into the court. and the same applies for the companies with the same applies for the u. k. what, what do i against to do against which the court judge wants to this might not be the case for a, for israel and some of its allies, but for the majority, it would decrease and in fact, i know what to do, the pressure them to act in a 2nd. okay, michael, your thoughts? what do you think is likely to be the outcome of this case where a provisional measures be issued and what will be you know, the fact that impacts for, for palestinians and gaza? i think it is likely that the car will, will issue the provisional measures, but it's really important to understand that the court isn't restricted by what south africa has passed for. exactly. they don't have to say just yes or no to the different across south africa has made was, are limited to this point about cc military operations. i think the car will want to address the military operations in some way, but we'll need to come up with some other formulation. maybe something along the

lines of israel needs to ensure that any continuing military operations are in compliance with it's other obligations under international law, including the genocide convention. and i think there will be other provisional measures directed at this specific question of ensure. and that is real dozens of p, for indeed facilitates a delivery of the necessary and effective and monitoring the assistance. there are other measures as well that might involve preservation of evidence. for example, in terms of enforcement. what kathy is that is exactly right. in theory, if it go to the security concept with the security cause is actually never really involved in enforcing nicely due to decisions the value of whatever the court decides here is that other states can draw on that to try to increase the diplomatic pressure on israel to change its conduct in various way. and the last point would be that even if the serial comes out and says, we just have all the i, c j is sadly reject this decision. what is realist as publicly may not align?

and carly, with israel is doing behind the scenes. oh crap is exactly what we think. the fact of the case, you know, be brought as already produced, some of the facts. okay. the same could be set whenever the court decides. thank you so much for a very insightful, very informative discussion. thank you. have fun. been in ron, kathy powell, michael becca. thank you. so all 3 of you. and i think you as well for watching you can always watch this program again any time by visiting our website at all, which is 0 dot com for further discussion. go to our facebook page at facebook, come forward slash a j inside story. and of course you can join the conversation on x i'll handle is that a j inside story from me for the back to the whole team having doha, thanks for watching. bye. for now the the business of sharpens improved was legal, but heavily restricted. most of them are sold in the black they can go for more

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