South Africa presented a powerful and compelling case that Israel is violating the Genocide Convention.
In a historic appearance before the International Court of Justice (ICJ or World Court) in The Hague, the legal team representing the Republic of South Africa presented a powerful and compelling case that Israel is committing genocide against the Palestinian people in Gaza. South Africa asked the court to impose nine emergency “provisional measures” to stop the slaughter.
South Africa “unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October,” South African ambassador to the Netherlands Vusimuzi Madonsela said. But, he added, “no armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can provide any justification for, or defence to” genocide. Israel, he said, “has crossed this line.”
Israel responded that it was one of the first states to ratify the Genocide Convention and for Israel, the promise of “Never Again” is “the highest moral obligation.” Israel’s position is that Hamas is responsible for the situation in Gaza and it accused South Africa of an “attempt to weaponize the term genocide.”
Genocide “stands alone amongst the violations of international law as the epitome and zenith of evil. It has been described correctly as the ‘crime of crimes,’ the ultimate in wickedness,” professor and U.K. lawyer Malcolm Shaw argued on behalf of Israel. Shaw said that Israel has the “most moral army in the world” and “does everything to avoid harming the uninvolved.”
Genocidal Acts
Israel has engaged in a “systematic pattern of conduct from which genocide can be inferred,” South African attorney Adila Hassim told the court. Israel is subjecting Gazans to “one of the heaviest conventional bombing campaigns in the history of modern warfare” from air, land and sea. “The level of Israel’s killing is so extensive that nowhere is safe in Gaza,” she said, citing a recent statement by the UN secretary general. “Israel has killed an ‘unparalleled and unprecedented’ number of civilians, with the full knowledge of how many civilian lives each bomb will take.” She added, “The devastation, we submit, is intended to and has laid waste to Gaza beyond any acceptable legal, let alone humane, justification.”
“Wherever they go,” Palestinians in Gaza “are subjected to relentless bombing,” Hassim stated. “They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families. They have been killed if they failed to evacuate, in the places to which they have fled and even while they attempted to flee along Israeli declared ‘safe routes.’” Israel has forcibly displaced about 85 percent of the Palestinians in Gaza.
More than 24,000 Palestinians have been killed in the last three months, the overwhelming majority of them civilians. Over 10,000 children have been killed. Nearly 60,000 Palestinians have been wounded and maimed, the majority women and children.
Hundreds of multigenerational families have been obliterated. The deliberate killing is the “destruction of Palestinian life,” Hassim said. “No one is spared, not even newborn babies. The scale of Palestinian child killings in Gaza is such that United Nations chiefs have described it as ‘a graveyard for children.’”
Israel deliberately cut off fuel, water and food to Gaza. “It was clearly calculated to bring about the destruction of the population,” Hassim stated. Israel has destroyed or damaged about 355,000 Palestinian homes and at least half a million Palestinians have no home to return to. An “unprecedented 93 percent of the population in Gaza is facing crisis levels of hunger,” she added. “Of all the people in the world currently suffering catastrophic hunger, more than 80 percent are in Gaza.” Israel’s destruction of Gaza’s health care system “renders life unsustainable.”
In addition, Israel is “imposing measures intended to prevent births” among the Palestinians, Hassim said. “Israel is blocking the delivery of life-saving aid, including essential medical kits for delivering babies, in circumstances where an estimated 180 women are giving birth in Gaza each day.”
Israel did not contest South Africa’s casualty figures. It claimed that while Hamas’s strategy is to “maximize civilian harm to both Israelis and Palestinians,” Israel “seeks to minimize” civilian harm.
Tal Becker, a legal adviser for Israel’s Ministry of Foreign Affairs, told the court that Hamas has “a practice of stealing and hoarding aid.” But Becker claimed there are “extensive Israeli efforts to mitigate civilian harm” and “humanitarian initiatives being undertaken to enable the flow of supplies and provide medical attention to the wounded.”
Becker maintained that “Israel is in a war of defense against Hamas — not against the Palestinian people — to ensure that they do not succeed.”
Shaw asserted that “Israel has the right to defend itself in line with humanitarian law,” citing the inherent right to self-defense in the UN Charter and customary international law.
Military force can be used in self-defense under Article 51 of the charter “if an armed attack occurs” against a state, but it must be directed from outside the territory under the control of the defending state. A state cannot claim the right of self-defense to defend against an attack that originates inside a territory it occupies. Because Israel has continued to occupy Gaza, it cannot assert self-defense in response to the attacks by the Palestinian resistance.
Israel didn’t mention the ICJ’s 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, in which the court declared the nonapplicability of “self-defense” under Article 51 in the situation between the occupier Israel and the Occupied Palestinian Territory.
Israel is arguing that only international humanitarian law applies — that Hamas committed war crimes. This is not a genocide case in Israel’s view; if anyone was the victim of genocide, it was Israel on October 7 when Palestinian resistance forces killed what Israel claims were 1,200 people. Hamas is not part of this case, however, because it is not a state party to the Genocide Convention.
Genocidal Intent
“Genocides are never declared in advance,” Hassim noted. “But this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts.”
The ICJ convened the provisional measures hearing on January 11-12. South Africa need not conclusively prove that Israel is committing genocide in order to get provisional measures. All that is required is a plausible showing that Israel is committing at least some of the charged genocidal acts with genocidal intent.
Israel’s genocidal intent “is evident from the way in which Israel’s military attack is being conducted,” South African lawyer Tembeka Ngcukaitobi told the judges. It is the systematic, mass displacement of the population which is “herded into areas where they continue to be killed.” It is the “deliberate creation of conditions that lead to a slow death.” There is a “clear pattern of conduct: the targeting of family homes and civilian infrastructure, laying waste to vast areas of Gaza, and the bombing, shelling and sniping of men, women and children where they stand, the destruction of the health infrastructure, and lack of access to humanitarian assistance.”
Moreover, said Ngcukaitobi, “an extraordinary feature” of this case is that “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.” Then these statements are repeated by soldiers on the ground “as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.” Israel’s genocidal intent is grounded in the belief that the enemy is not just Hamas “but is embedded in the fabric of Palestinian life in Gaza.”
A stunning example of the genocidal statements uttered by Israeli leaders is Prime Minister Benjamin Netanyahu’s admonition to Israeli soldiers as they prepared their ground invasion of Gaza. He told them, “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.”
This is a reference to the First Book of Samuel, where God commands King Saul to kill every person in Amalek (which attacked the Israelites as they fled from Egypt), declaring, “Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys.”
Ngcukaitobi said that Netanyahu’s “invocation of ‘Amalek’ is being used by soldiers to justify the killing of civilians, including children.” They are shown in a video repeating Netanyahu’s words as they dance, chant and sing, “May their village burn; may Gaza be erased.”
In rebuttal, Israel dismissed the remarks cited by South Africa as evidence of genocidal intent as “little beyond random assertions” that don’t represent official Israeli policy.
Shaw cited “a directive that binds all IDF forces” which states that “the laws of armed conflict allow destruction to civilian property only when there is a military necessity to do so, and prohibit harm to property for deterrence purposes only or for the purpose of punishment (individual or collective).” It says that it “is necessary to treat enemy civilians with respect.”
Shaw contended, “Israel’s efforts both to mitigate harm when conducting operations as well as its efforts to alleviate suffering through humanitarian activities have gone relatively unnoticed and dispel or at the very least mitigate against any allegation of genocidal intent.”
Turning Israel’s systematic campaign of ethnic cleansing on its head, Shaw characterized its evacuation orders and the displacement of 85 percent of Palestinians in Gaza as humane acts to get them out of bombs’ way. He claimed that the Israel Defense Forces dropped “millions of leaflets” and made more than 70,000 phone calls to warn people to leave their homes to escape the bombing.
This past week, Israeli lawyer Omri Sender noted, Israel began a transition to fewer ground troops and airstrikes. “The war shifted a stage” to “a new and less intense phase of fighting” and Israel will continue reducing the number of troops in Gaza. “Five brigades, consisting of thousands of soldiers, have already been withdrawn from the territory,” he said.
Although Israel likely announced a change in strategy in anticipation of the ICJ hearing, Netanyahu made Israel’s intention crystal clear after the hearing: “No one will stop us, not The Hague, not the axis of evil [referring to Iran] and not anyone else.”
Jurisdiction: A Dispute Is Required
Craig Murray, former U.K. ambassador to Uzbekistan, who attended the hearings, reported that the judges seemed very interested in the arguments about whether there was a “dispute” in order for the World Court to assume jurisdiction over the case.
It is necessary that one side state a position and the other side reject it in order for there to be a dispute. “But there was probably sufficient statement by [South Africa] that it thought Israel was committing genocide, and sufficient statement by Israel that it was not committing genocide for there to be a ‘dispute’ between the two,” John Quigley, professor emeritus at the Moritz College of Law of Ohio State University, told Truthout.
“To accuse a State of committing acts of genocide and to condemn it in such strong language is a major act on the part of a State,” South African lawyer and professor John Dugard told the court. “At this stage it became clear that there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts.”
Dugard said that the South African government repeatedly cited its concerns in the Security Council. On October 17, South Africa referred Israel to the International Criminal Court for investigation of genocide, and the South African president publicly declared abhorrence for what is happening in Gaza “which is now turned into a concentration camp where genocide is taking place.” Israel “flatly denied” that accusation.
Dugard cited “Israel’s official and unequivocal denial” on December 6 “that it was committing genocide in Gaza.”
Further, “as a matter of courtesy,” Dugard said, on December 21, before filing its application on December 29, South Africa sent a note verbale (an unsigned diplomatic communication from one government to another which is delivered through each other’s diplomatic representatives) to the Israeli Embassy reiterating its view that “Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State party to the Genocide Convention, was under an obligation to prevent genocide from being committed.”
Late on December 27, Israel emailed South Africa a note verbale “that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute.” This note verbale was received by the relevant South African team on December 29 after the application was filed.
On January 4, 2024, South Africa replied to Israel’s December 27 note verbale. It highlighted Israel’s failure to provide any response to the matters South Africa had raised over the prior months and reiterated in its note verbale. South Africa made clear that in light of Israel’s ongoing conduct in Gaza, the dispute referred to in its note verbale of December 21 remained unresolved and it was “plainly not capable of resolution by way of a bilateral meeting.”
South Africa nevertheless proposed a January 5 meeting, “again out of courtesy,” Ngcukaitobi noted. “Israel responded to this Note Verbale by proposing that ‘we reconnect to coordinate a meeting at the earliest opportunity’ after the close of hearings in the present case. To this South Africa understandably replied that such a meeting would serve no purpose.”
Israel claims there was not a “dispute” between it and South Africa about whether Israel is committing genocide, before South Africa filed its application with the ICJ on December 29. Shaw said, “There needs to be some element of engagement between the parties. The element of interchange and bilateral interaction is required. A dispute is a reciprocal phenomenon. This point has been consistently noted by the court.” One party’s claim must be “positively opposed by the other.”
Israel argues that South Africa had communicated its position to Israel but since Israel had not provided a substantial reply, there was no dispute between the two countries when South Africa filed its application.
Provisional Measures Sought by South Africa
“There is an urgent need for provisional measures to prevent imminent, irreparable prejudice to the rights [to exist and to self-determination] in issue in this case,” Irish barrister Blinne Ní Ghrálaigh argued on behalf of South Africa. “There could not be a clearer or more compelling case.” She quoted the commissioner-general of the United Nations Relief and Works Agency, who said there must be “an end to the decimation of Gaza and of its people.”
“Nothing will stop this suffering, except an order from this court,” Hassim argued. “Without an indication of provisional measures, the atrocities will continue; with the Israeli Defense Forces indicating that they intend pursuing this course of action for at least a year.”
Here are the nine provisional measures that South Africa is asking the ICJ to order:
- Israel shall immediately suspend its military operations in and against Gaza.
- Israel shall ensure that any military, irregular armed units, organizations or persons which may be directed, supported, controlled or influenced by it take no steps to further military operations.
- Both South Africa and Israel shall, in accordance with their obligations under the Genocide Convention in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
- Israel shall, in accordance with its obligations under the Genocide Convention, in relation to the Palestinian people as a group, desist from committing genocidal acts, including:
a) killing members of the group;
b) causing serious bodily or mental harm to the members of the group;
c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
d) imposing measures intended to prevent births within the group. - Israel shall, pursuant to point (4)(c) above, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions, to prevent:
a) the expulsion and forced displacement of Palestinians from their homes;
b) the deprivation of:
(i) access to adequate food and water;
(ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, sanitation and hygiene;
(iii) medical supplies and assistance; and
c) the destruction of Palestinian life in Gaza - Israel shall ensure that its military, as well as any irregular armed units, organizations or individuals that may be directed, supported, controlled or influenced by it, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and if they do, they should be punished.
- Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence of alleged genocidal acts. Israel shall not deny or otherwise restrict access by fact-finding missions, international mandates, and other bodies to Gaza to help ensure the preservation and retention of evidence.
- Israel shall submit a report to the court on all measures taken to comply with this order within one week from the date of this order, and after that, at such regular intervals as the court orders, until a final decision on the case is rendered by the court.
- Israel shall refrain from any action and shall ensure that no action is taken that might aggravate or extend the dispute before the court or make it more difficult to resolve.
Israel opposes the requested indication of provisional measures. British lawyer Christopher Staker said the measures that order Israel to “desist” from committing genocidal acts imply that it’s already committing them.
Staker said that implying Israel had failed to comply with its obligations under the Genocide Convention would “tarnish the reputation” of Israel. He objected to measure (7) because it “would imply that there is some reason to suspect concealment of evidence, when in fact none has been identified. This again would be an unprincipled and unnecessary tarnishing of reputation.”
Punishing those who violate the Genocide Convention in measure (6) does not have to be done urgently to temporarily protect rights, Staker argued.
At the conclusion of the hearing, ICJ President Joan Donoghue said the court would rule on the request for provisional measures “as soon as possible.” That could be in a matter of weeks.
If the court finds there was no “dispute” and therefore no jurisdiction, it could deny South Africa’s request for provisional measures. But the notion that Israel and South Africa didn’t have opposing positions on whether Israel was violating the Genocide Convention strains credulity. “It is a possibility, but a remote possibility” that the court will use the jurisdictional issue to decline to order provisional measures, Quigley said. Should the court dismiss South Africa’s case on this technicality, it would encourage genocidal governments in the future to refuse to respond to allegations of genocide in order to avoid ICJ jurisdiction.
The court could order some or all of the requested measures. The actual trial on the merits could take several years. If the court orders provisional measures, they would go to the Security Council for enforcement. Even if the U.S. vetoes enforcement measures in the council, a plausible finding of genocide by the World Court could prompt other countries to impose sanctions on Israel. The General Assembly could also convene under Uniting for Peace (a procedure to circumvent a deadlock in the Security Council) and recommend a trade embargo, deployment of a UN military force or suspension of Israel from its ranks.
If the ICJ finds that South Africa has established a plausible case of genocide by Israel, that may embolden individual countries to prosecute Israeli leaders for genocide under the well-established doctrine of universal jurisdiction. Genocide is so heinous, it’s considered to be a crime against all nations, so any country can punish it.
In addition, an ICJ finding of genocide after trial would bind the International Criminal Court, which would then only need to decide which individuals to prosecute.
Copyright Truthout. Reprinted with permission.
