The former judge of the International Criminal Tribunal for the Rwandan genocide and that for the crimes of the former Yugoslavia speaks to Adnkronos
“I believe that it is not easy for the International Court of Justice (ICJ) to ascertain acts of genocide committed by Israel”, while “it could certainly ascertain violations of the Genocide Convention for failure to prevent and repress the crime also by some members of the government, like some exponents of the Israeli far right that Tel Aviv does nothing to stop.” This was stated in an interview with Adnkronos by jurist Flavia Lattanzi, former full professor of international law at the University of Roma Tre and former judge of the International Criminal Tribunal for the Rwandan genocide (Tpir) and that for the crimes of former Yugoslavia (ICTY), in view of the first hearing at the ICJ, scheduled for next Thursday, on the appeal presented by South Africa against Israel for the crime of genocide.
Recalling that the ICJ resolves disputes between States and is not concerned with ascertaining individual crimes, which fall under the jurisdiction of the International Criminal Court (ICC), Lattanzi declares that in the “very logical and rational” appeal presented by South Africa the Court is asked to determine whether Israel’s behavior represents violations of the Genocide Convention to which both the Jewish state and South Africa are party.
The South African state, continues the jurist, accuses Israel as such “not only of committing acts of genocide, but also of a failure to prevent and repress acts of genocide corresponding crimes attributable to the members of the troops”. The Convention against Genocide, in fact, prohibits states from acts of genocide, but also provides for their obligation to prevent and repress the corresponding individual acts. In the appeal, South Africa also asks the IGC to express its opinion that “pursuant to the Genocide Convention, Israel’s behavior in this war against the civilian population is not justifiable even if the crimes committed by Hamas on 7 October could be considered as genocide”.
The jurist highlights that in this controversy everything revolves around the possibility of the judges’ assessment of the ‘dolus specialis’, the subjective element constitutive of the genocide. For a State to be held responsible for an act of genocide or an individual responsible for the corresponding crime, he explains, “the acts are not enough, which are the objective element of the genocide – and these are almost all of them: from killings, to torture, to unlivable conditions imposed on the Palestinians of Gaza. It is in fact fundamental to demonstrate the subjective element, that is, the intent of the total or partial destruction of a ‘national, racial, ethnic or religious group’, as stated in the Convention against Genocide”. it would mean, in the case in question, “the intent to destroy the Palestinian people of Gaza, not necessarily from a physical point of view, but above all in terms of the stability of the group itself and its future on that territory”, according to the a notion accepted by the ICTY in particular in the ruling on the Srebrenica genocide.
“I have some doubts that the IGC is able to ascertain the ‘dolus specialis’ of the genocide of the Palestinian people of Gaza”, continues Lattanzi also in light of the ongoing – and publicized – differences between the members of the Tel Aviv government regarding the future of Gaza. On the one hand, the jurist reasons, “until a few days ago” far-right exponents of the coalition such as the Finance Minister, Bezalel Smotrich, and Prime Minister Benjamin Netanyahu himself expressed “the intent” to erase the Palestinians from the Strip. On the other hand, Defense Minister Yoav Gallant “thinks differently” and has drawn up a post-war plan that maintains the presence of the Palestinians, a concept on which the American government firmly insists.
“This also makes it complex to refer to Israel as such – which certainly does not identify with the extreme right in government – the ‘dolus specialis’ of the genocide, although it can certainly be held responsible for the extermination of the Palestinians, and perhaps not only for that of Gaza”, says Lattanzi, underlining that according to the statute of the ICC, as for the statutes of the ICTY and the ICTY, extermination is a crime against humanity, but this assessment is currently the responsibility of the ICC and not of the ICJ, which , by virtue of the South African appeal, is called upon to apply only the Genocide Convention. “It is no coincidence – he comments – that this Gallant plan emerged after South Africa’s appeal because it could be configured as a political move to be used in the defense before the IGC in support of the position that Israel did not have and does not intend to eliminate from Gaza the Palestinian people, but think about its future under the control of this same people”, provided that it does not represent a threat to Israel, as stated in the summary plan made public by the Minister of Defense.