At the Navi Pillay Research Group's Symposium at the UKZN Law School on Tuesday, Chris Sidoti, a legal expert, delved into the intricate legalities of establishing genocide in court, particularly in Gaza's context, highlighting the difficulty of proving genocide as the only reasonable purpose, based on circumstantial evidence. Picture: Screen-shot
Chris Sidoti, an international legal expert and the Commissioner of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, has praised South Africa for commencing its case of genocide at the International Court of Justice (ICJ) against Israel, but cautioned that proving such a case could be intricate.
Sidoti was addressing the Navi Pillay Research Group's Online Symposium, hosted by the University of KwaZulu-Natal (UKZN) School of Law, where he outlined the daunting legal challenges inherent in proving genocide, specifically in the context of Gaza.
He said that for genocide to be established in court, "circumstantial evidence must be such that genocide is the only reasonable purpose," thereby excluding other possibilities.
This criterion, he noted, often complicates legal proceedings.
Last week, the ICJ took a firm stance on Israel’s war on Gaza, calling on Israel to “take all measures” to prevent a genocide of the Palestinians, but stopped short of demanding an immediate ceasefire.
Turning to the situation in Gaza since October 7, Sidoti pointed out the significant role of public statements made by Israeli political and military leaders in the wake of Israel’s brutal military assault on the people of Gaza.
"Were it not for clear public statements ... I think it would have been very hard at this point to establish genocide," he said.
He described these statements, made by figures including the president, prime minister, defence minister, and military head, as a potential "smoking gun" indicative of a genocidal intent.
Sidoti argued that these high-level statements transcend mere rhetorical expressions, posing a challenge in connecting them causally to actions in Gaza.
"That is one of the challenges that will come later," he said, acknowledging the difficulty of the presence of substantial evidence.
Highlighting South Africa's role, Sidoti expressed his approval of the country's decision to commence the ICJ case.
He drew parallels to the ICJ's findings in the Myanmar case, where it recognised the standing of Gambia, despite it not suffering direct injury from the alleged genocide.
This precedent, he said, supports South Africa's standing in the current case against Israel.
Sidoti passionately defended South Africa's right and obligation to bring action before the ICJ.
He cited the extensive facts, including the high number of casualties, evacuation orders, and clearance operations by the Israeli military, combined with the political and military leadership's statements, as grounds for action under the Genocide Convention.
"South Africa was justified, it was entitled to do it and had an obligation to do something," he said.
Addressing the criticisms against South Africa's involvement, Sidoti classified them as ideological, political, and emotional, rather than legal.
He contrasted international responses to different crises, questioning the lack of action in Gaza compared to rapid military responses to threats in other regions, such as action taken against recent Red Sea blockades.
Adding a personal comment, Sidoti pointed out South Africa's own inconsistencies in respecting international law, referencing the International Criminal Court’s 2017 ruling that said South Africa erred in its decision not to arrest Sudanese President Omar al-Bashir during his controversial visit to the country in 2015.
He acknowledged these criticisms, but maintained that South Africa's action in the Israel-Palestine case was the right move.
In addition, Sidoti highlighted the provisional measures ordered by the ICJ, noting their similarity to those in the Myanmar case, but highlighting a key difference: the ongoing nature of the alleged genocide in the Israel-Palestine case.
This, he argued, necessitated orders aimed at stopping the ongoing genocide rather than just preventing future risks.
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