“The first genocide in history where its victims are broadcasting their destruction in real-time in the desperate so far vain hope that the world might do something” –Blinne Ní Ghrálaigh, an adviser to South Africa’s legal team,
South Africa has initiated a significant legal case against Israel at the International Court of Justice (ICJ) in The Hague, accusing Israel of committing genocide in Gaza, violating the 1948 Genocide Convention. The case alleges that Israel’s actions have resulted in the death of over 23,000 people in Gaza, including nearly 10,000 children, since October 7.
During a three-hour presentation to ICJ judges, the South African legal team, led by international law expert John Dugard, highlighted the dire situation in Gaza. They described the Palestinians’ plight, emphasizing the challenges they face living under siege, enduring continuous Israeli air strikes, and facing a deadly military ground invasion.
What Is The Genocide Convention
The Genocide Convention considered the inaugural human rights treaty in the history of the United Nations, is an international agreement ratified by 153 countries. This convention serves to define and address the crime of genocide, outlining it as “acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.”
Genocidal acts encompass a range of actions, including killing members of a specified marginalized group, causing them serious bodily or mental harm, and destroying the conditions necessary for their survival. This extends to preventing the targeted group from giving birth and forcibly transferring their children to other groups.
Importantly, countries that have signed the Genocide Convention not only commit to refraining from committing genocide themselves but also pledge to take measures to prevent and punish this crime. The convention reflects a global effort to condemn and combat the heinous act of genocide, emphasizing the collective responsibility of nations to ensure the protection and well-being of diverse groups within their borders.
South Africa’s 5 Points
In its 84-page application to the International Court of Justice (ICJ), South Africa accuses Israel of committing acts of genocide in Gaza, aiming to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group. Adila Hassim, representing South Africa, outlined five main “genocidal acts” committed by Israel during the conflict:
- Mass Killings of Palestinians:
- Hassim presented evidence of mass graves and the use of highly destructive 2000-pound bombs in Gaza, causing widespread casualties.
- Over 1,800 families lost multiple members, including infants and children, with some families entirely wiped out.
- Bodily and Mental Harm:
- Israel is accused of inflicting serious mental and bodily harm on the population in Gaza, with close to 60,000 people wounded, most being women and children.
- The collapsed health system and the arrest of Palestinians, including children, were cited as instances of undeniable suffering.
- Forced Displacement and Food Blockade:
- Israel deliberately imposed conditions leading to forced displacement, with thousands of families displaced multiple times, and half a million left without homes.
- The lawyer argued that Israel blockaded food and water, causing widespread hunger and limiting the ability to distribute aid effectively.
- Destruction of the Healthcare System:
- Israel’s military assault on Gaza’s healthcare system is deemed a genocidal action, rendering life unsustainable.
- Years of attacks had already crippled the healthcare system, and it is now unable to cope with the overwhelming number of injured people.
- Preventing Palestinian Births:
- Israel is accused of blocking the life-saving treatment needed for delivering babies, amounting to preventing births in Gaza.
- This action is characterized as reproductive violence, with warnings from the UN special rapporteur on violence against women and girls.
Israel’s Response & It’s Strength
The counterarguments presented by Israel in response to South Africa’s accusations:
- Right to Self-Defense:
- Israel’s Position: Israel asserts that the conflict in Gaza was triggered by Hamas’s attack on army outposts and villages on October 7. Israel claims its actions are a legitimate exercise of the right to self-defense, as recognized under international law.
- Critique: Opponents argue that, as an occupying force, Israel’s right to self-defense is questionable. The 2003 ICJ ruling on the construction of the separation wall in the West Bank challenged Israel’s claim to self-defense as an occupying power.
- Genocidal Intent:
- Israel’s Position: Israel dismisses South Africa’s accusations of an inherent intent to “destroy” the Palestinian people as based on “random assertions.” They contend that statements by high-ranking officials, including Prime Minister Netanyahu’s reference to “Amalek,” are taken out of context.
- Critique: Critics, including Akshaya Kumar from Human Rights Watch, argue that significant statements by key decision-makers should not be considered random. The context of statements invoking historical references is crucial in assessing the intent behind such remarks.
- Genocidal Actions:
- Israel’s Position: Israel argues that its military actions are targeted at Hamas, which uses civilians as human shields. The claim is that efforts are made to minimize harm to civilians.
- Critique: Opponents point to verified instances, such as the shooting of an unarmed Palestinian grandmother and her grandson attempting to evacuate. These cases raise questions about the effectiveness of Israel’s efforts to minimize harm during military operations.
- Lack of Jurisdiction:
- Israel’s Position: Israel contends that South Africa failed to communicate with Tel Aviv before filing the case, violating the ICJ’s rules. They argue that there was insufficient prior notice and that a genuine dispute between the parties is necessary for the ICJ to have jurisdiction.
- Critique: South Africa’s response to these claims is unknown, but it may be required to demonstrate that it gave Israel prior notice and that there was a substantive dispute regarding the alleged genocide to justify bringing the case before the ICJ.
- Humanitarian Aid:
- Israel’s Position: Israel disputes allegations of blockading critical supplies from Gaza, asserting that substantial amounts of aid, including food, were allowed into Gaza before and during the conflict.
- Critique: Critics argue that the longstanding blockade on Gaza, in place for 16 years, constitutes collective punishment. While some aid was allowed during the conflict, opponents contend that it is insufficient compared to the needs of the population, and they accuse Israel of using starvation as a weapon of war.
South Africa is seeking an ICJ order for Israel to “immediately suspend its military operations in and against Gaza.” However, there is a practical challenge as Israel is highly likely to disregard such an order, and enforcement mechanisms are limited. While ICJ rulings are theoretically legally binding on its member states, including Israel and South Africa, they often prove unenforceable.
The current legal proceedings involve South Africa’s request for provisional measures against Israel, specifically seeking an order from the International Court of Justice (ICJ) to stop actions that could potentially be considered violations of the Genocide Convention. At this stage, South Africa only needs to demonstrate that its case for genocide is “plausible,” with a relatively low standard of proof.
These provisional measures are temporary and aim to provide the ICJ judges with time to assess whether there is enough merit for a full trial to definitively determine if Israel is guilty of genocide. The initial hearing occurred today, where South Africa presented its oral arguments.
An illustrative example of this occurred in 2022 when the ICJ ordered Russia to “immediately suspend military operations” in Ukraine. Despite the ICJ’s directive, Russia ignored the order, highlighting the inherent limitations in the court’s ability to compel compliance from sovereign nations. This underscores the complex nature of international legal mechanisms and the challenges associated with enforcing decisions made by the ICJ.
The ICJ has not specified a date for its decision, but experts anticipate an announcement in the coming weeks.
Sources: Al Jazeera, Middle East Eye
