How genocide became an official crime, and why South Africa accuses Israel of it
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THE HAGUE, Netherlands (AP) - After World War II and Nazi Germany's murder of 6 million Jews in the Holocaust, the world united around a now-familiar pledge: Never again.
A vital part of this lofty aspiration was the drafting of a convention that codified and committed nations to prevent and punish a new crime, sometimes called the crime of crimes: genocide.
The convention was drawn up in 1948, the year Israel was created as a Jewish state. Now, that country is being accused by the United Nation's highest court of committing the very crime that is so deeply woven into its national identity.
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The reason the Genocide Convention exists "is directly related to what the (Nazi) Third Reich tried to do in eliminating a people, the Jewish people, not only from Germany but from Eastern Europe, from Russia," said Mary Ellen O'Connell, a professor of law and international peace studies at the Kroc Institute at the University of Notre Dame.
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Now, in response to Israel's devastating military offensive in Gaza, triggered by murders and atrocities by Hamas militants on 7 October, South Africa has gone to the International Court of Justice and accused Israel of genocide. Israel denies the allegation and accuses Pretoria of providing political cover for Hamas.
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South Africa also asked the 17-judge panel to issue nine urgent orders, known as interim measures. They aim to protect civilians in Gaza while the court considers the legal arguments of both sides. First and foremost, the court should order Israel to 'immediately cease its military operations in and against Gaza'.
On Friday, the American president of the court, US Judge Joan E. Donoghue, will read out her decision at a public hearing.
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WHAT IS GENOCIDE?
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines the crime as acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such".
It lists the acts as killing, causing serious bodily or mental harm; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures designed to prevent births. And forcibly transferring children.
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The text is repeated in the Rome Statute, the founding treaty of the International Criminal Court, as one of the crimes under its jurisdiction, along with war crimes, crimes against humanity and the crime of aggression. The ICC prosecutes individuals and is separate from the International Court of Justice, adjudicating disputes between nations.
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In its written submissions and at a public hearing earlier this month, South Africa alleged genocidal acts by Israeli forces, including the killing of Palestinians in Gaza, causing severe mental and physical harm, and deliberately inflicting conditions designed to "bring about their physical destruction as a group".
Israel has vehemently denied South Africa's claims, arguing that it is acting in self-defence against what it calls a genocidal threat to its existence from Hamas.
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HOW DOES ONE PROVE GENOCIDE?
As well as proving one or more of the underlying crimes listed in the convention, the critical element of genocide is intent - the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. It isn't easy to prove.
"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 these crimes were committed," said Marieke de Hoon, associate professor of international law at the University of Amsterdam.
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O'Connell said: "Can you show that the government intended the widespread killing of these people? Or ... was the government waging a war, and during that war, large numbers of this particular group died, but that was not the intention of the government?"
At public hearings earlier this month and in its detailed written submission to the ICJ, South Africa cited comments by Israeli officials that it claimed demonstrated intent.
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Malcolm Shaw, an international law expert on Israel's legal team, described the comments highlighted by South Africa as "random quotes not in line with government policy".
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HAS THE ICJ EVER RULED ON GENOCIDE BEFORE?
In 2007, the court ruled that Serbia "violated the obligation to prevent genocide" in the 1995 Srebrenica massacre, when Bosnian Serb forces rounded up and murdered some 8,000 primarily Muslim men and boys in the Bosnian region.
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Two other genocide cases are currently on the court's docket. Ukraine filed a lawsuit shortly after Russia's invasion almost two years ago, accusing Moscow of launching the military operation on trumped-up claims of genocide and of planning acts of genocide in Ukraine. In that case, the court ordered Russia to stop its invasion, an order which Russia has ignored.
In another case, Gambia, on behalf of Muslim nations, accused Myanmar of genocide against the Rohingya Muslim minority. Gambia brought the case on behalf of the Organisation of Islamic Cooperation.
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Gambia and South Africa have filed ICJ cases in conflicts in which they are not directly involved. That's because the Genocide Convention contains a clause that allows individual states - even uninvolved ones - to call on the United Nations to take action to prevent or suppress acts of genocide.
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HAVE OTHER INTERNATIONAL TRIBUNALS PROSECUTED GENOCIDE?
Two now-defunct UN tribunals - for the former Yugoslavia and Rwanda - both dealt with genocide, among other crimes.
The Yugoslav court convicted defendants, including former Bosnian Serb leader Radovan Karadzic and his military chief General Ratko Mladic, of genocide for their involvement in the Srebrenica massacre.
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The International Criminal Tribunal for Rwanda, based in Arusha, Tanzania, became the first international court to hand down a genocide conviction when it found Jean-Paul Akayesu guilty of genocide and other crimes and sentenced him to life imprisonment in 1998.
He was convicted for his role in Rwanda's 1994 genocide, in which fighters from the Hutu majority slaughtered some 800,000 people, primarily members of the Tutsi minority. The tribunal convicted 62 defendants for their role in the genocide.
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The International Criminal Court has indicted ousted Sudanese leader Omar al-Bashir on charges of genocide in the Darfur region.
He has not been handed over to the court to stand trial. Al-Bashir's government responded to a 2003 uprising with an aerial bombing campaign and unleashed militias known as the Janjaweed, who are accused of mass killings and rape. Up to 300,000 people have been killed, and 2.7 million driven from their homes.
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A hybrid national and international court in Cambodia has convicted three men who were members of the Khmer Rouge, whose brutal rule in the 1970s led to the deaths of an estimated 1.7 million people. Two were found guilty of genocide.
How genocide officially became a crime, and why South Africa is accusing Israel of committing it
