Amer A. Šam, lawyer and member of the Initiative for a Free Palestine – Croatia, in an interview with H-Alter, comments on the International Court of Justice’s decision in the case of Israel’s genocide against the Palestinian population in Gaza: The ICJ fully accepted South Africa’s arguments and evidence, and rightfully rejected Israel’s. It has been established that Israel’s actions possibly constitute genocidal acts, and that statements made by Israeli officials and soldiers are genocidal statements that must be punished and prevented. If countries continue to politically support Israel, they must know that this runs a high risk of being complicit in genocide.
On Friday, January 26, the International Court of Justice (ICJ) presided over by US judge Joan Donoghue ruled on an application for provisional measures requested by South Africa in its genocide lawsuit against Israel over the war in the Gaza Strip. In its 84-page decision, the ICJ called on Israel to take all measures in its power to prevent genocide in the Gaza Strip. The Court also ordered Israel to take measures to prevent and punish direct incitement to genocide, and ensure the preservation of evidence relating to the alleged genocide. Israel must also take immediate measures to enable the provision of essential services and humanitarian aid to the Gaza Strip. Additionally, Israel is required to report to the Court within one month on the steps taken to comply with its decision to prevent genocide in Gaza.
On this occasion, we spoke with Amer A. Šam, a Palestinian-Jordanian-Croatian lawyer and a member of the Initiative for a Free Palestine – Croatia, which he supports with legal matters relating to Palestine. Although his specialization is international commercial law, he devoted himself to the research of international law because of the situation in Palestine. He worked in the legal sector in the United States and Britain and has taught law at a university in Bahrain.
How do you assess the decision of the International Court of Justice?
First, I would like to explain a few things about the Court itself. The Court is the judicial arm of the UN and is the highest court of international law. Its mandate includes resolving disputes between states. The ICJ does not have the ability to enforce its own decisions. Instead, its decisions are enforced by the UN Security Council, in which the USA, Great Britain, France, Russia and China have veto power. In case of a veto, the matter is referred to the General Assembly which would then have the authority to take measures in accordance with the UN Charter and international law. At that point, each country can adopt a range of measures, including sanctions, arms embargoes, etc., as was done in Ukraine’s genocide case against Russia.
Cases based on the Genocide Convention, such as the one against Israel, are distinct from other cases handled by the ICJ because of the special character of the Convention. The Convention was adopted after World War II as a reaction to the horrors that had occurred and imposes an obligation on the entire world to prevent and punish genocide under the principle of erga omnes obligations. Therefore, if there are indications that genocide is taking place anywhere, all countries have an obligation to try to prevent it. This includes Croatia too, which would have to act employing means such as diplomatic pressure, sanctions, or adopting other measures available under international law.
But the ICJ decision of January 26 does not claim that genocide is indeed being carried out in Gaza?
This is not accurate, because the court was not actually competent at this stage to decide whether genocide was taking place. Years may pass before the final decision confirming that it is indeed a genocide, and by then there may be no more Palestinians in Gaza. What the court was competent to decide was whether there is a likelihood of genocide, and whether the situation is urgent enough for the court to prescribe provisional measures.
For context, the Convention states that genocidal acts include: mass killings, causing physical and mental harm, and all conditions imposed on a group which are calculated to bring about its destruction such as denying access to food, water, medicine, as well as forced displacement under certain circumstances. Additionally, the Convention also requires that those acts be carried out with genocidal intent. Contrary to a common misconception, genocide does not require the complete annihilation of the entire group, but only the acts I described. The genocide in Srebrenica is one example. It was deemed a genocide although it did not result in the destruction of all Bosniaks in Bosnia.
So, it may take a long time for a final decision. What are the potential courses of action that this Court decision already opens up?
The Court imposed provisional measures on Israel. This means that the Court concluded there is sufficient evidence to suggest that a genocide might be occurring in Gaza and that there is a need for urgent intervention to prevent the genocide as well as to prevent the situation from further deterioration. The impact of this decision is enormous. To explain this, I would like to clarify two aspects of the decision. The first aspect concerns the dispute over whether there are indications of genocide taking place and whether there is a danger of irreparable harm in the absence of immediate intervention. The second aspect relates to the measures the Court prescribed in this case. While most commentary has focused on the latter, I believe it is crucial to delve into the Court’s analysis of the likelihood of genocide against the population of Gaza and the urgency of action.
Can you tell us more about the Court’s analysis of South Africa’s arguments that led to the imposition of provisional measures?
I would like to highlight some important details in the arguments prepared by South Africa and in the defense presented by Israel. Additionally, I want to recall some political statements made by Antony Blinken, as well as the foreign ministers of the United Kingdom and Germany at the time of filing the lawsuit.
Israel’s initial response was to label the lawsuit as outrageous and legally and factually unfounded. Israel accused South Africa of being the judicial arm of Hamas. Anthony Blinken essentially repeated some of Israel’s allegations by calling the case without legal or factual merit. During the hearing, South Africa presented an abundance of evidence proving that the actions of the Israeli military are indiscriminate, disproportionately affecting the civilian population, and that the seige has created a humanitarian catastrophe. The evidence included reports from various UN agencies and reputable humanitarian relief organizations, which is very powerful evidence. South Africa also demonstrated the existence of genocidal intent by citing numerous public statements from top Israeli officials and military commanders. They then showed footage of Israeli soldiers on the ground repeating those same statements.
How did Israel respond? What were their arguments based on?
Israel responded by attempting to attribute everything to Hamas’s actions on October 7th. However, from a legal point of view, the focus of the case was only whether Israel was committing genocide, so what Hamas is accused of doing is not within the immediate scope of the case; genocide is never an acceptable response to any act. Israel also argued that the high civilian death toll is a result of Hamas using the residents of Gaza as human shields. One example of the evidence they submitted includes photographs taken by Israeli soldiers showing weapons next to a child’s bed. However, why should we trust evidence relying on the credibility of an army that is accused of carrying out genocide? How do we know that those guns were not placed there by Israeli soldiers themselves?
It is quite clear from the Court’s decision that it fully accepted the evidence presented by South Africa and rightfully rejected Israel’s. The Court found that Israel’s actions may constitute genocidal acts, and that statements made by Israeli officials and soldiers are genocidal statements that must be punished and prevented. This is a very firm and decisive response to all statements that deemed the case “unfounded.” If it was unfounded, the Court would have dismissed it.
What about the measures requested by South Africa? To what extent did the Court consider them?
South Africa requested the immediate cessation of military operations, the prevention and punishment of genocidal actions and statements, the enabling the delivery of food and medicine, and access to other essential necessities of life. It was also requested that Israel submits a report on the implementation of these measures shortly after the decision. From the Court’s decision, it is evident that it generally accepted South Africa’s demands. In its reasoning, the Court cited the same UN agencies and humanitarian aid organizations who were present on the ground in Gaza. Not a single sentence in the Court’s reasoning references Israel’s evidence. And that is why this decision is so devastating for Israel. It is worth mentioning that 15 out of 17 judges voted in favor of the decision, including judges from the United States, France, Australia, countries who are strong allies of Israel. Therefore, the Court’s decision completely destroyed any avenues for accusing the Court of bias against Israel, as the Israeli diplomat Mark Regev attempted to insinuate before the decision.
For me, as a Palestinian, this decision is historic. For 75 years, no international body has shown willingness to hear our narrative and to provide us with legally enforceable relief. To see today that American, French, and Australian judges consider the claim of genocide as a legitimate claim is a significant development for us. It’s just sad that mainstream media has not given it the attention it deserves.
There is still disappointment in the fact that the Court did not call for a ceasefire. Netanyahu immediately tried to interpret this as his victory.
Yes, he tried to misrepresent it as a confirmation of Israel’s right to self-defense. However, the Court’s reasoning does not mention Israel’s right to “self-defense” at all. Legally speaking, the Court could not have ordered a ceasefire, because Israel is in a military conflict with Palestinian armed groups who are not parties to this case, and there is no legal avenue for the Court to impose a ceasefire on those groups. In other words, the Court could not impose a ceasefire on only one side of the conflict. However, the measures ordered by the Court effectively require a ceasefire, as Israel cannot implement them without halting military operations, as emphasized by South African Minister Naledi Pandor.
It is important to note that the ICJ already addressed the issue of Israel’s right to self-defense in a case it ruled on in 2004, concerning the apartheid wall Israel erected around the West Bank and East Jerusalem. In that decision, the Court concluded that, since the Palestinian territories are illegally occupied by Israel, the right to self-defense does not apply. According to international law, the illegality of Israeli occupation is not subject to any credible debate, as even UN Security Council resolutions which had votes from the United States acknowledged them as occupied territories, despite the fact that the United States vetoed all proposals for ending the occupation. Therefore, the right of self-defense cannot be applied in this case.
So, what do the temporary measures requested by the Court mean?
They mean that Israel must completely change the way it conducts this war. The massacring of civilians must stop. Any public incitement to genocide must be punished, and further genocidal statements must be prevented. In this regard, the Court specifically quoted genocidal statements made by Isaac Herzog, the President of Israel, and Yoav Gallant, the Minister of Defense. The Court also called for an end to the inhumane siege of Gaza by requiring the facilitation of sufficient humanitarian aid and essential services. This runs directly contrary to Israel’s claims that it took sufficient measures to provide humanitarian aid for Palestinian civilians. If that were indeed the case, the ICJ would not have had to require such measures.
What are the implications of the ICJ’s decision on the behavior of Western states in particular? It went almost unnoticed in the Croatian media that on the same day, Friday, January 26, the first hearing was held in a federal court in California regarding the lawsuit for participation in the genocide in the Gaza Strip, filed against President Joe Biden, Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin by the nonprofit legal organization Center for Constitutional Rights.
If states continue to politically support Israel, they must know that this runs a high risk of them being complicit in genocide. This is something the media doesn’t convey to people, and legally speaking, that’s exactly what this Court decision implies. It’s sad that politicians and statesmen know this. They have legal advisors and are aware of the consequences of the Court’s order. The Center for Constitutional Rights (CCR), a New York-based civil liberties group, filed a lawsuit in November 2023 on behalf of Palestinian human rights organizations, Palestinians in Gaza, and U.S. citizens whose family members are in the besieged enclave. In the lawsuit, they charge the U.S. President and two members of his administration with not preventing mass atrocities but rather aiding and abetting genocide in Gaza by providing military aid to Israel.
I do not have much faith in governments, so I am much more interested in spreading awareness to the citizens of Western countries. That is why I consider the activism of initiatives such as the Initiative for a Free Palestine – Croatia to be extremely important.
What do you expect from this Court’s decision? What do you hope for?
Based on the initial reactions, especially from officials from European countries, I expect the UN Security Council to fulfill its mandate and to enforce the provisional measures proposed by the Court. I hope so for the sake of everyone affected by this war. Moreover, the right of Palestinians to self-determination can no longer be ignored. Ireland, Spain, Belgium and Slovenia are already calling on the EU to recognize the Palestinian state, a decision that the US cannot veto. And that gives me hope because the recognition of the Palestinian state is an important step towards ending the occupation. This is a moment when things could start to change. The apartheid in Palestine is neither acceptable nor sustainable. Gaza has been an open-air prison for 17 years and when you impose such living conditions on people, denying them of their human rights, depriving them of livelihood, a functioning economy, hope… the most densely populated area on Earth with the highest unemployment rate, and then you are surprised that they fight back! It goes without saying that I do not condone any violation of international law by anyone, but the concept of vilifying resistance to occupation as a whole is absurd to me. Under international law, any nation under occupation has the right of self-defense, and this allows them to resist occupation. Do you think it is effective for Israel to resolve its security concerns by bombarding the entire Gaza Strip? Don’t you think that the situation would change significantly if you gave people their basic human rights, including the right to govern themselves, the opportunity to develop their own economy, trade, their own currency, freedom of movement… Wouldn’t that have a completely different impact on Israel’s security?
After all these atrocities how is it even possible to imagine a shared future regardless of the mode of political solution?
First and foremost, it is necessary to acknowledge what has happened and been happening here for the last 75 years. The Nakba of 1948 can no longer be denied. It must be recognized that Zionism is a settler colonial project, as openly advocated by early Zionists like Vladimir Jabotinsky and as documented by Israeli historian Illan Pappe. The colonial nature of Zionism is no secret. As one of numerous examples, in 1912, The New York Times published an article by an American rabbi calling on Jews to “settle” in “Zionist colonies” in Palestine.
There must be accountability for all the crimes that have taken place. The siege of Gaza is an unquestionable case of collective punishment and, as such, constitutes a war crime. Illegal settlements are considered a crime against humanity. These matters are perhaps best settled by the establishment of an International Criminal Tribunal for Israel and Palestine, similar to the International Criminal Tribunal for the former Yugoslavia, which must independently and fairly investigate any crimes committed by anyone. Without justice, there is no possibility for coexistence. I could easily live with Israelis who protest against the occupation and/or Zionism as a whole. There are many examples I know of, such as the Radical Bloc Tel Aviv group, the magazine “972,” and individuals like Ilan Pappe, Avi Shlaim, Gideon Levy, Daniel Levy, Miko Peled, and many Israelis who share similar views. I have a lot of respect and admiration for such people, and I would actually like to live with them. There is no reason to hold these people responsible for the crimes committed by the Israeli government. I also believe that other Palestinians would not have objections to making peace with such people.
However, the case is different for other extremist segments of Israeli society; people like Minister of National Security Ben-Gvir for example, who is responsible for war crimes, including alleged torture in prisons, as well as some current and previous government officials who are responsible for numerous war crimes. These crimes should be transparently investigated and adjudicated. If this were to happen, justice would be served, and I believe that lasting peace would become possible. Arabs don’t have anything against Jews as such, and this is clear to anyone who knows the history of the Islamic Empires, where Jews lived under the protection of Muslims without discrimination and prejudice. But we do have a problem with the way the state of Israel was established and the crimes, discrimination and the persecution that it committed against the Palestinians. Unfortunately, at this moment, the international community does not seem to be willing to take serious practical steps to bring about peace. Nevertheless, the world is changing, and the future is limitless.
