South Africa’s genocide case against Israel is strong, but politics will decide

January 8, 2024
Palestine supporters in Ngunnawal/Canberra on January 7. Photo: Zebedee Parkes

South Africa will start a case against Israel in the International Court of Justice (ICJ) at The Hague, the Netherlands, on January 11.

South Africa argues Israel’s assault on Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. The following day, Israel will put its case to the ICJ.

More than 22,000 Palestinians have been killed since Israel’s bombing campaign began on October 7. In addition, basic supplies have been cut, including food and water, further depriving the 2.3 million Gazan people, who have had to survive a 17-year-long blockade.

Israel has repeatedly rejected that it is breaking international law. This is despite it having unleashed “a large-scale military assault by land, air and sea, on the … narrow strip of land approximately of 365 square kilometres”, according to the case notes submitted by South Africa.

South Africa is seeking an interim order from the ICJ or World Court that would require Tel Aviv to halt its assault on Gaza.

While the case is strong, the determination will not boil down the legalities: politics will play a major role in the outcome.

The US has been supporting Israel’s massacre, including by supplying it weapons, and it has also blocked United Nations’ attempts to end it.

Yet 153 UN member states voted in favour of a humanitarian non-permanent ceasefire on December 12, with only 10 nations — including the US — voting against it.

“Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide,” reads South Africa’s application. It lists eight UN reports which found that Israel’s past attacks on Gaza breached international law.

“More gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza,” it continues.

The Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, via killing, causing serious bodily or mental harm, inflicting physically destructive conditions, preventing births or the forcible removal of children.

South Africa says repeated statements from senior Israeli officials as well as the cutting of water, food, medicine and fuel into Gaza show genocidal intent: 85% of Gazans are now internally displaced.

The report outlines that the destruction of the occupied West Bank and East Jerusalem, where about 300 Palestinians have been killed recently by Israeli soldiers or settlers, is “intrinsically connected to Israel’s actions in Gaza” and provides context to its violations.

An extermination program

South Africa’s claim provides 30 pages of documented ongoing “genocidal acts committed against the Palestinian people” in Gaza since early October.

It notes that Israel “is deliberately imposing telecommunications blackouts” and restricting fact-finding bodies and global media.

The 100 paragraphs of evidence outline aspects of the genocide: mass killings, causing serious harm and inflicting destructive conditions, expulsions and mass displacement, deprivation of food, water, medical supplies and shelter, as well as destroying Gaza’s way of life and preventing births.

Submitted on December 29, the document noted that more than 21,000 Palestinians had been killed, with close to 8000 more missing, presumed dead. The victims had been killed in homes, in places of shelter, such as hospitals, UN schools, churches and mosques, and while they have been searching for food.

“They have been killed if they failed to evacuate, in the places to which they fled, and even while they attempted to flee along Israeli declared ‘safe routes’”, the document states. It adds that “reports are multiplying of Israeli soldiers performing summary executions”.

More than 55,000 people have been injured, most hospitals have been destroyed and those still functioning are not equipped with medical supplies. Israel has been systematically dehumanising Palestinians via acts of arrest, abduction, forced removal of clothing and humiliation.

As of the first week of January, 1.9 million Gazans had been expelled from their homes. Israel had been firing upon those using designated evacuation routes. On October 9, Tel Aviv cut off water, food, electricity and fuel from entering the strip. While this has since slightly eased, the region is on the brink of famine.

Further charges involve the “attack on Gaza’s medical healthcare system”, including killing healthcare workers, the destruction of infrastructure and foundations of life and the killing of children and mothers, along with a lack of adequate birthing conditions targeting future generations.

Premeditated mass slaughter

The 84-page report then turns to the expression of “significant and overt” genocidal intent by Israeli state officials, documented over 24 pages.

Eleven examples of high ranking politicians making such remarks are provided, along with seven instances of army officials doing the same.

The first examples are made by Israeli PM Benjamin Netanyahu and, in particular, his description of the conflict as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle” which, the report notes, has become a “dehumanising theme”.

Other top politicians who South Africa considers have made genocidal remarks include President Isaac Herzog, defense minister Yoav Gallant, national security minister Itamar Ben-Gvir, finance minister Bezalel Smotrich, energy minister Israel Katz and minister for heritage Amichai Eliyahu.

Military personnel have also publicly expressed that they are taking part in a mass slaughter: an Israeli major general Ghassan Alian describing Palestinians as “human animal[s]” and IDF major general Giora Eiland is cited as stating that Gazans must either exit the Strip for good or starve to death.

The report then lists eight examples of UN bodies or officials recognising Israel’s genocidal intent.

It then describes how Israel has breached the convention: this includes failing to prevent genocide under Article I of the Genocide Convention and committing, conspiring, attempting to commit, pubic incitement of and being complicit in genocide are listed, which all violate Article III.

Further breaches include failing to punish genocide, not enacting domestic laws to reflect the provisions of the convention, as well as having impeded investigations into the matter.

Ending genocide

“In light of the nature of the rights in issue, as well as the ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza, South Africa requests that the court address this request as a matter of extreme urgency,” South Africa said.

While the aim of the application is to bring the genocide to a permanent halt, there is a request for a provisional measure: this means that if the ICJ assesses that the details in the report at face value do constitute genocide then it could issue Israel with a temporary restraining order.

The ICJ could insist that Israel halt its genocide prior to any official investigation taking place, to protect lives.

The ICJ, established in 1921, could be one route to end the hot war in Gaza. The International Criminal Court also deals with the crime of genocide but, as  US human rights lawyer Francis Boyle explained to Sydney Criminal Lawyers, it tends to favour the want of its funders and masters — the US and NATO.

“The state of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel,” Israeli spokesman Eylon Levy told an online briefing on January 2. “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy.”

US political scientist and activist Norman Finkelstein said that while the case’s merits are “plausible”, the ICJ is made up of 15 justices representing various nations and that they will ultimately decide whether to issue an interim cease-and-desist order.

Finkelstein, a Gaza expert, does not think an interim order will be passed by the majority of the 15 states with a judicial officer on the court bench.

“America forget; hopeless cause. Russia unlikely. Slovakia, maybe a yes. France 50-50. Morocco, I would say a yes. Somalia probably a yes,” Finkelstein predicted. “China probably a no, or an abstention. Uganda a no. India, since Modi is committing genocide against Muslims, I would say no.”

“Jamaica maybe a yes. Lebanon a yes. Japan is so terrified of the United States, I would call it a no. Germany, I would call a no. Australia, no, no, no, no, no,” Finkelstein said. “Brazil, definitely a yes.”

Finkelstein suggested six ICJ judges will vote for an order to stop the slaughter in Gaza, and perhaps France. But for the court to decide a temporary halt is warranted, eight judges must be convinced.

However, according to the ICJ, “once elected, a member of the court is a delegate neither of the government of his own country nor of that of any other state. Unlike most other organs of international organizations, the court is not composed of representatives of governments.”

The fact that the highly respected and qualified judges of the ICJ will be operating independently of their governments' influence raises hope for a successful court outcome. Australia’s representative, Hilary Charlesworth, is known to be progressively-minded judicial officer.

Of course, Israel, while a signatory to the 1948 Genocide Convention, making it subject to its jurisdiction, may not follow the order: it has disregarded international law for decades.

This is yet another reason the global ceasefire movement on the streets remains as important as ever.

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