South Africa’s case has implications for Australia and the United States, both of which are complicit in Israel’s genocide as all signatories to the convention are obliged not to participate in genocide and to actively prevent it.
Foreign minister Penny Wong began the government’s lobbying trip to the Middle East on January 15, saying Labor is “gravely concerned” about the “worsening humanitarian situation in Gaza”. Labor has refused to state its position on the ICJ case.
South Africa’s argument at the ICJ closely followed the Convention on the Prevention and Punishment of the Crime of Genocide provisions and provided evidence that Israel is committing crimes.
They include the mass killings of Palestinians — the first of five genocidal acts listed by the convention that become genocide when done with an intention to destroy an entire group of people in whole, or in part.
“As I stand before you today, 23,210 Palestinians have been killed by Israeli forces during the sustained attacks over the last three months,” South African lawyer Adila Hassim told the court.
Hassim cited United Nations (UN) Secretary-General saying on December 6 that “nowhere is safe in Gaza” and that Israel has bombed civilians “even while they attempted to flee along Israeli declared ‘safe routes’”.
According to the UN, Israel has killed an “unparalleled and unprecedented” number of civilians, she said.
Another genocidal act is to inflict conditions calculated to bring about the physical destruction of the group, in whole or in part. Israel has done this in many ways, Hassim said.
These include the forced displacement of 85% of Gaza’s population and denying food, water and electricity to the population, leading to mass hunger, dehydration and starvation.
She cited Israel’s January 8 denial of access to a “planned mission by UN agencies to deliver urgent medical supplies and vital fuel to a hospital and medical supply centre”.
“This marked the fifth denial of a mission to the centre since 26 December, leaving five hospitals in northern Gaza without access to life-saving medical supplies and equipment.”
Imposing measures designed to prevent births within a targeted group is another genocidal act.
Hassim also highlighted the November 22 comments by Reem Alsalem, UN Special Rapporteur on violence against women and girls.
“The reproductive violence inflicted by Israel on Palestinian women, newborn babies, infants, and children could be qualified as … acts of genocide under Article 2 of the [Genocide Convention]” Alsalem said.
Key to the crime of genocide is the intention to destroy an entire group of people, in whole or in part.
US/Israeli genocide expert Raz Segal said in early October that this “special intent” is often hard to prove, but that in Israel’s case, the “special intent is on full display”.
The South African case devotes almost 10 pages to genocidal comments from leading Israeli politicians and officials, including Prime Minister Benjamin Netanyahu.
Tembeka Ngcukaitobi, who represented South Africa at the ICJ, said Israel’s genocidal intent is both “evident from the way in which Israel’s military attack is being conducted” and also from the “speech[es] by leaders and military officials”.
“Israel’s special genocidal intent is rooted in the belief that in fact the ‘enemy’ is not just the military wing of Hamas, or indeed Hamas generally, but is embedded in the fabric of Palestinian life in Gaza,” he said.
Israel told the ICJ on January 12 that it has a right to defend itself. It also detailed its alleged plan to mitigate civilian hardship, arguing that, together, these are incompatible with genocidal intention.
International legal expert Alonso Gurmendi told journalist Owen Jones on January 13 that “a lot of people say [Israel’s defence] was terrible. It wasn’t.”
He cautioned Palestine supporters, not to think “this is going to be a walk in the park”, while pointing out that Israel’s defence “has its flaws and has its points where you can counter-argue successfully”.
Gurmendi argued elsewhere that international law was born out of “colonialist principles”, and was not set up to “enable liberation”. “Genocide is common,” he said, whereas “findings of genocide are not”.
Labor is feeling pressure from the huge pro-Palestine solidarity movement across the country, sustained over 14 weeks. The persuasive power of the South African ICJ case only adds to it.
After refusing to call for a ceasefire for two full months, Australia voted for a “humanitarian ceasefire” at the UN General Assembly on December 13.
Wong’s trip has been framed by Labor as a chance to “caution” Israel over “humanitarian concerns”. She announced $21 million in emergency funding for Gaza, a small amount and more than half of which is for “refugee programs in Lebanon and Jordan”.
This mounting pressure is not yet powerful enough to force a change of policy.
This was revealed by Australia’s joint statement with New Zealand and Canada on December 13 which, despite appearances, only called for “steps towards” a ceasefire, not a permanent ceasefire. The statement also made demands on Hamas, not Israel.
Now, Labor is talking about a “sustainable ceasefire” — leaving itself a lot of wriggle room.
While Labor declined a US request in December to send a warship to the Red Sea, it supports the US-British air strikes on Yemen, arguing it is in the country’s “national interest”. Labor also claims to not want the conflict to spread.
Houthi rebels in war-ravaged Yemen are targeting Israeli vessels over the Gaza genocide, and have managed to get most shipping lines to reroute.
About 12% of global trade passes through the Red Sea and about 30% of the world’s container shipping. Access to the Red Sea requires access through the Bab al Mandab — a narrow strait between Djibouti to the west and Yemen to the east.
The Biden administration has just declared the Houthi to be a “specially designated global terrorist group”. The AUKUS arrangement means that Australia will likely follow suit.