On 6 March, ARTICLE 19 hosted a webinar exploring the free expression implications of the case initiated by South Africa against Israel before the International Court of Justice (ICJ) under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).
Our panellists Mai El-Sadany, David Kaye, Jiries Saadeh, and Yuval Shany were joined by moderator Chantal Joris, Senior Legal Officer at ARTICLE 19, to unpack and discuss key aspects of South Africa v. Israel as it relates to freedom of expression. These include the scope of Israel’s obligation to prevent and punish direct and public incitement to genocide, the relationship of obligations under the Genocide Convention with other obligations under international humanitarian and international human rights law, to what extent the ICJ might consider freedom of expression violations as it assesses the case on the merits, and the role of freedom of expression in preserving evidence of potential breaches of the Genocide Convention. Panellists also discussed why online platforms should pay attention to these proceedings.
You can watch the full webinar below.
ARTICLE 19’s key takeaways from the discussion are:
- This case presents the ICJ with an opportunity to address the under-explored relationship between the obligation under the Genocide Convention to prevent and punish direct and public incitement to commit genocide, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protecting freedom of expression, and Article 20 paragraph 2 of the ICCPR imposing an obligation on States to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
- It can be argued that the ICJ’s provisional measures order requiring Israel to preserve and prevent the destruction of evidence also encompasses protecting freedom of expression. Killing journalists or imposing communication blackouts are not only violations of international human right and humanitarian law but may also breach the ICJ’s order. Yet, the ICJ’s jurisdiction in the present case is limited to determining whether Israel breached the Genocide Convention and it is highly unlikely to directly pronounce itself on whether freedom of expression has been violated. It remains an open question to what extent the Court will incorporate violations of international human rights and humanitarian law into its evaluation of the obligations under the Genocide Convention.
- The inciting statements made by senior Israeli officials and soldiers could serve as evidence for the ICJ not only in determining whether Israel breached its obligation to prevent and punish direct and public incitement to commit genocide, but they may also be relevant to establishing whether the key requirement of intent under the Genocide Convention has been met.
- Major online platforms should pay attention to the ICJ proceedings. Although not a party to these proceedings, they do play a significant role as they host some of the incendiary statements that are at issue in these proceedings and a lot of evidence that could potentially be brought in the merits stage of South Africa v. Israel is documented on these platforms. They also have responsibilities under international law that extend beyond this case before the ICJ but are linked to the ongoing conflict, particularly under international human rights and international humanitarian law.
ARTICLE 19 will continue to explore how the standards developed under Articles 19 and 20 of the ICCPR, alongside case law established by international criminal tribunals, intersect, may mutually influence each other, and inform States’ obligations under the Genocide Convention regarding public and direct incitement to commit genocide. We will also continue to advocate for the ICJ and other accountability mechanisms like the International Criminal Court (ICC) to consider the role freedom of expression violations as they investigate potential claims of genocide and other atrocity crimes.
Highlights from the discussion
Leading public international law practitioner Jiries Saadeh started the conversation by highlighting that many of the inciting statements by senior Israeli officials and soldiers presented by South Africa – some of them quoted in the ICJ’s provisional measures order – are relevant not only to Article III(d) of the Genocide Convention, which prohibits the “direct and public incitement to commit genocide”, but also to other requirements under the Genocide Convention, namely the requirement for there to be “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. He further noted that there was an almost unanimous finding on the incitement element which holds particular prominence in this preliminary phase, more than in other recent genocide cases before the ICJ, such as The Gambia v. Myanmar.
Panellists also discussed the relationship between the prohibition of direct and public incitement to genocide under the Genocide Convention, Article 19 of the ICCPR protecting freedom of expression, and Article 20 paragraph 2 of the ICCPR imposing an obligation on States to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Yuval Shany, Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem, noted that some instances of direct and public incitement to genocide could also qualify as hate speech under Article 20 paragraph 2 of the ICCPR. Due to the heightened risk that incitement to genocide carries when compared to other forms of inciting speech, it could be argued that the duty to suppress incitement to genocide is also heightened in a way that goes beyond typical Article 20 ICCPR “hate speech” cases. On the other hand, he noted that the International Criminal Tribunal for Rwanda (ICTR) set the threshold for individual criminal responsibility for incitement very high by requiring that statements when read in context cannot be ambiguous.
There is an opportunity for the Court to provide some clarity on the relationship between Articles 19 and 20 of the ICCPR. The ICJ could, for example, take into account elements established in the Rabat Plan of Action, which puts forward six criteria to determine when expression reaches the threshold of Article 20 paragraph 2 of the ICCPR. This may involve considering not only intent, but also other factors such as the context, audience, and position of the speaker. David Kaye, Professor of law at the University of California, Irvine and member of ARTICLE 19’s Board, commented:
“I’ll be very interested to see how the Court or if the Court does any kind of analysis as to the relationship between the Genocide Convention’s prohibition on incitement and Article 19 and Article 20. There isn’t, as far as I know, jurisprudence on this connection. And in the ICTR, Judge Meron in a partially dissenting opinion in the Nahimana et al. case (Media case) (ICTR-99-52) that Yuval mentioned, distinguished incitement to genocide from what he called “mere hate speech” […] but there wasn’t a real evaluation of that connection between Article 19 and Article 20 on the one hand and incitement to genocide on the other. I would be interested to see if, given [the] new soft law developed around Article 20 in the last decade, whether the Court, in doing an evaluation, would look to the Rabat Plan of Action with respect to national, racial and religious advocacy that constitutes incitement to violence or hatred or discrimination.”
David Kaye also emphasised the importance of recognising that the case is about State responsibility, which will determine how the Court will evaluate the case. Unlike international criminal courts and tribunals, which conduct a detailed evaluation of evidence to establish individual criminal responsibility, the ICJ is more likely to assess whether or not Israel did indeed follow up and comply with obligations to prevent and punish incitement to genocide, even in the absence of a finding that there was direct incitement to genocide.
As the conversation turned to Israel’s obligations under the ICJ’s provisional measures order to preserve and prevent the destruction of evidence, Mai El-Sadany, Executive Director at the Tahrir Institute for Middle East Policy, pointed out that in her view, said order encompassed a freedom of expression component and that Israel had been violating this order as it continued to engage in the intentional targeting of Palestinian journalists, denial of access for international journalists except if they embedded with the IDF, and imposition of communications blackouts impeding the collection and storage of evidence. Through this conduct, Israel, she argued, is in violation of the ICJ order and its other obligations under international humanitarian and human rights law.
Building on this discussion, panellists agreed that it was difficult to foresee to what extent the ICJ might import other obligations under international law into a case that by its filing is about the Genocide Convention. It is noteworthy in this context that the ICJ has just a few weeks ago heard arguments in the Advisory Opinion in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Those arguments addressed Israel’s actions towards Palestineans more broadly and beyond the time period since 7 October, but might also feed into the ICJ’s ultimate determinations in South Africa v. Israel.
Impossible to ignore in this discussion is also the role of online platforms, considering the proliferation of inciting statements and documentation of violations of international law on these platforms in the wake of October 7. While the present case addresses State responsibility, Mai El-Sadany and other panellists underscored the importance of platforms recognising their indirect involvement as they host important evidence for these proceedings, some of which has already been cited in South Africa v. Israel. Platforms also have responsibilities under international law, which are well beyond this case yet linked to the ongoing conflict, particularly under international human rights and international humanitarian law.
Finally, while this case raises a number of fascinating questions about the intersection of different areas of public international law, how it will continue to evolve, and the potential role the ICJ can play in similar situations, it carries significant implications for individuals directly affected by conflict and violence, as emphasised by Mai El-Sadany in her closing statement:
“At the end of the day, these are issues that affect everyday people, and international law – in my perspective – was created to protect the greatest number of people. So I think it’s critical, as folks who are keen on developing international law and pushing it to protect the greatest number of people, for us to also be creative. Yes, we want to be realistic with what we’re working with: these are old institutions that lean conservative and want to stick to the letter of the law. But at the end of the day, this is an ever-changing world where we now have social media, where we now have all sorts of actors, where we have this great amount of access to information, and I think that really necessitates [a change in] the way in which we think about how international law can better serve populations.”