Pauline Jäckels

The cable suggests, as confirmed by other Israeli statements, that its strategy is to politicize the case, attacking the Court, so that when the Court issues an Order of Provisional Measures sometime in the next few weeks, it will be dismissed out of hand by other countries.

According to an old lawyer’s maxim, “When the law is on yor side, discuss the law. When the law is against you, discuss the facts. When the law and the facts are both against you, scream and shout.”

Israel has obviously decided to scream and shout.

What is utterly regrettable, and utterly shameful, is John Kirby’s political statement that

We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.

This is a political statement, not the measured judgment of a responsible government which respects international law and the International Court of Justice, originally established in 1919 under the League of Nations, and reauthorized in 1945 as a constituent part of the United Nations Charter, under American leadership-

The timing and wording of Kirby’s statement makes it quite clear that it does not reflect the judgment of the Office of the Legal Adviser to the State Department. which is the authoritative voice of the U.S. government on all questions of international law.

News reports suggest that Israel has successfully pressured German Chancellor Olaf Scholz to direct that Germany will file a brief in the ICJ supporting Israel’s position in the case brought by South Africa.

Christian Walter, the chair of the Department of Public International Law and Public Law at the University of Munich, has published an article in the Verfassungsblog (Constitution Blog) in support of Germany’s intervention in the case of South Africa v. Israel.

After making a number of useful clarifications of the procedure under the Statute and Court Rules of the ICJ, and tracing Germany’s incidental interventions in the genocide cases of The Gambia v. Myanmar (1918) and Russia v. Ukraine (1922), Walter argues that the case is inadmissible before the Court because while Israel has accepted the Court’s jurisdiction by ratifying the 1948 Genocide Convention, it has not explicitly consented to the application of a number of legal norms of International Humanitarian Law and International Human Rights Law which might be applied in the case.

Consequently, Walter concludes, South Africa’s complaint is inadmissible and the Court does not have jurisdiction to hear the case.

Walter’s argument is fallacious on several grounds.

First, Israel has ratified the international conventions on International Humanitarian Law and International Human Rights Law which contain many of the norms which might be applied in the case.

Second, many of these norms have become customary international law, which is binding on all states. The most important of them have become norms of peremptory international law or jus cogens, from which there can be no derogation even by agreement.

Finally, the argument that a state must have specifically consented to every law that might be applied in the case is not supported by any legal authority. This defect is even more glaring if we consider the fact that we are at the Provisional Measures phase of the proceedings, before the Court even considers in detail the jurisdictional issues that might be raised in the Preliminary Objections phase of the proceedings.

Professor Walter is an international lawyer of great distinction. One cannot escape the impression that he might have been pressured into writing an article supporting the position of Israel in this matter. If that is indeed the case, one can only sympathize with the dilemma he may have faced. To make the argument he did in his article may have been the most honorable course available to him, short of outright refusal or resignation.

Unfortunately, there are other cases in Germany’s past where leading academics and even judges were pressured to take a particular position. If this has occurred here, it represents a scandal of immense proportions.

Germany has in the past been a strong supporter of international law. The German constitution or Basic Law provides-in Article 25 the following:

Article 25
[Primacy of international law]

The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.

The Convention on Genocide represents peremptory norms of international law (jus cogens). They undoubtedly form part of “the general rules of international law” under Article 25 of the German Constitution, and therefore “take precedence over the laws”.

The 1948 Genocide Convention to which Germany, the U.S., South Africa and Israel are parties contains in Article IX a commitment to submit disputes under the Convention to the International Court of Justice for decision. By ratifying the Convention, Israel has agreed to submit all such disputes to the ICJ.

Article IX provides:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Moreover, the decisions o fthe ICJ are binding on all members of the United Nations. Article 94 paragraph 1 of the U.N. Charter establishes:

1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

As the ICJ has recently reaffirmed in the case of Armenia v. Azerbaijan (Interim Order of February 22, 2023, orders indicating provisional measures of protection under Article 41 of the Statute of the ICJ are legally binding on the parties.

The expected forthcoming Order of Provisional Measures in the genocide csdr brought by South Africa against Israel will therefore be legally binding on both countries. Failure to comply by either country will constitute a violation of Article 94 paragraph 1 of the Charter, and subject the con-compliant party to potential measures adopted by the U>S. Security Council, provided of course that it is able to reach a decision.

After three months of an Israeli siege of the Gaza Strip and some 23,000 Palestinians reportedly killed, what is truly scandalous and deeply shameful is that John Kirby would characterize South Africa’s
complaint against Israel for genocide to be ” meritless, counterproductive, and completely without any basis in fact whatsoever.” The quoted words apply to Kirby’s statement, not to the action brought by South Africa.

The 1048 Genocide Convention established clear rules for the adjudication by the International Court of Justice of any disputes regarding the application of the Genocide Convention.

What is sad is that the U.S., and now apparently Germany and other countries, ceding to political pressures, have denounced the case and the Court.