Self-defence is not a defence to the crime of genocide

A busy couple of weeks for Israel’s legal minds

It was an eventful New Year weekend for the legal community in Israel. Her judiciary managed partly to restore her reputation that whatever the horrors in and around Gaza, at least Israel has an independent, fearless and trustworthy judiciary.

On Monday, January 1, 2024 by a narrow majority of 8 to 7, the Supreme Court of Israel annulled a law passed by the Netanyahu government to limit the power of judges to strike down government decisions for unreasonableness.

Israel’s reputation, at least in the West, as a law-abiding country and party to the 1948 Genocide Convention, was dealt a severe blow after South Africa filed a claim against her on Friday, December 29, 2023 for genocidal acts perpetrated in her conduct of the war in Gaza.

The claim by South Africa is that Israel is engaged in acts of genocide under  the cover of self-defence. South Africa also applied for interim provisional measures to protect the Palestinians of Gaza from imminent destruction.

Her claim has the hallmarks of fine legal minds in play who have marshalled a formidable case to answer against Israel and circulated it worldwide.

The application for interim measures is tactically savvy. It requires the usually slow International Court of Justice (ICJ) to hear the application for provisional measures urgently – as early as January 10 next week. Also, the evidence required to obtain such measures is to a lower standard of proof. It is to show that “some of the acts alleged are capable of amounting to genocide,” rather than the higher degree of certainty at the full trial of the claim.

South Africa’s case is that Gaza has been rendered a wasteland of death and destruction caused by incessant Israeli bombardment, killing and maiming thousands, some of it conceived and executed with genocidal intent to destroy the people of Gaza. Genocidal intent is difficult to prove, but it is usually done inferentially by evaluating what was said and done by an accused before, during, and after the alleged crime –  sideways and up and down the chain of command.

According to South Africa’s claim there is evidence from statements made by responsible officials in the Israeli government that suggests that the destruction of the Palestinian people in Gaza was thought desirable in the defence of Israel. In South Africa’s submission, the terrorist atrocities of October 7 cannot justify or excuse the genocide of the people of Gaza.

Are the people of Gaza being sacrificed on the altar of the self-defence of Israel and, if they are, is this lawful under international and Israeli domestic law? Those are the questions and although Israel’s initial response was to brand the claim by South Africa as anti-semitic, they must know that is not a defence to the crime of genocide. The allegations are serious, detailed and evidence-based and according to the newspaper Haaretz, Israel is now taking them seriously and instructed the well known international lawyer Professor Malcolm Shaw KC to lead for the defence.

Before the terror attack on October 7, Israeli society was waiting with bated breath for the judgement of the Supreme Court on the constitutionality of the Netanyahu government’s attempt to emasculate the judiciary that had caused political turmoil in Israel.

The importance of the judgement has been overshadowed by the war in Gaza, but there was a huge political and constitutional crisis in Israel most of last year over the government’s judicial reforms that threatened Israeli society to its core.

Like the UK, but unlike most other countries, Israel has no written Constitution in the form of a single code of overarching fundamental laws with which other laws need to conform and, again like the UK, her parliament – the Knesset – was thought to be sovereign.

The sovereignty of parliament is a constitutional principle that has three principal strands: parliament cannot bind its successors; the laws passed by parliament cannot be annulled by the courts; and it cannot pass a law to abandon its own sovereignty.

The Israeli Supreme Court, however, decided that in limited circumstances it has the power to annul Basic Laws passed by a government gone rogue – the court did not put it like but that’s how it seems. The majority decided that an elected government can have no democratic mandate to undermine the separation of powers and the rule of law enshrined in the Israeli Declaration of Independence.

In her ruling on the merits, the president of the court, Esther Hayut, for the majority, said the new law was an “unconstitutional constitutional amendment” that abolishes use of the judicial standard of reasonableness absolutely, without exception for decisions made by the prime minister, the cabinet and government ministries.

For the minority Justice Mintz said: “Annulling a Basic Law based on an amorphous doctrine and an undefined formula carries a heavy price from a democratic point of view, certainly when it comes to an issue about which the court itself is in an institutional conflict of interest.”

In any case, the new law, he said, did not prevent the court from reviewing government and ministerial decisions on other grounds of challenge, apart from reasonableness.

The important point here is that Israeli government decisions are subject to judicial review, presumably including those affecting the West Bank and Gaza. Except, of course, operational decisions regarding security and defence that in most countries are notoriously not justiciable.

The 1948 Genocide Convention article V, however, requires member states to pass laws making genocide a punishable criminal offence domestically that trumps national self-defence and security. Assuming that has been done in Israel, any genocidal acts in Gaza would be unlawful and the Israeli Supreme Court has shown it can be trusted to say so if called upon to rule on such allegations.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge