On December 29, 2023, the Republic of South Africa filed an application in the International Court of Justice alleging ‘violations by Israel regarding the [United Nations] Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.’ Various ‘acts and omissions’ by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group’.
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Pretoria seeks two things: a review of the merits of the case, which is bound to last months, and the imposition of provisional measures that would directly Israel’s Gaza operation. The provisional measures include, among other things, the immediate suspension of military operations in and against Gaza; desisting ‘from the commission of any and all actions within the scope of Article II’ of the Genocide Convention (killing, causing serious bodily or mental harm to the members of the group); halt the intentional infliction upon the group of conditions ‘calculated to bring about its physical destruction in whole or in part’; and cease ‘imposing measures intended to prevent births within the group’.
In considering whether South Africa has made its case, the ICJ must rely on the elements of genocide outlined in the UN Genocide Convention of 1948, an instrument that has proven to be notoriously difficult to enforce, let alone apply. The controlling aspect of the definition is outlined in Article II: the acts committed must possess an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. Examples include killing the group’s members, causing serious bodily or mental harm to such members, the deliberate infliction on the group such ‘conditions of life calculated to bring out its physical destruction, in whole or in part’, imposing measures upon group members intended to prevent births and the forcible transfer of children from one group to another.
Proving genocide is an onerous task, notably on the issue of intent. The acts alleged must be specifically intended to destroy the group members in question. The UN Office on Genocide Prevention and the Responsibility to Protect considers this element ‘the most difficult element to determine.’ The 84-page filing by South Africa certainly makes a fist of it, identifying the staggering mortality rate of Palestinians, the maiming of civilians and the use of ‘bombs weighing up to 2,000 lbs (900 kgs) on one of the most densely populated places in the world.’
Forced displacements are also alleged to be ‘taking place in circumstances calculated to bring out the physical destruction of Palestinians in Gaza.’ Intent, it is argued, is further shown by using starvation as a weapon, depriving Gaza’s populace of suitable access to food and water, and fostering conditions ripe for disease. One is reminded of that journal scribble by Henry David Thoreau from November 1850: ‘Some circumstantial evidence is very strong, as when you find a trout in the milk.’
In South Africa’s oral submissions to the ICJ on January 11, it fell to Tembeka Ngcukaitobi to put forth the argument that genocidal intent had been evinced through various explicit statements from Israeli officials. ‘Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent,’ he stated. Such statements were repeated by the soldiers on the ground as they dutifully engaged ‘in the destruction of Palestinians and the physical infrastructure.’
Of interest to Ngcukaitobi were remarks by Israeli Prime Minister Benjamin Netanyahu exhorting IDF troops to follow in the footsteps of the Israelites: ‘remember what Amalek has done to you.’ God’s Biblical command to Saul was unequivocal in its call to collectively destroy the Amalekites, and remains a rhetorical staple for ultra-right Jewish nationalists in their cause against Palestinians.
'Broadly viewed, the Israeli case is a remarkable example of how the effect of law can be blunted by the proliferation of qualifications, exceptions and modifications. Genocide can take place, but never when waged in the name of self-defence. An appalling loss of life, starvation, displacements and forced removals can still take place and not constitute genocide.'
Prior to its January 12 presentation to the Court, Israel rejected ‘with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).’ Netanyahu fumed that his country ‘is accused of genocide while it is fighting against genocide.’ The country was battling ‘murderous terrorists who carried out crimes against humanity’.
The oral submissions by Israel to the ICJ attempted to wall off Israel as an exceptional state essentially incapable of committing genocide while narrowing the focus of the war to the specific targeting of Hamas and its October 7, 2023 attacks. Tal Becker, as legal advisor to the Israeli Foreign Ministry, addressed the issue by suggesting that Pretoria had invoked genocide ‘in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.’
Problematically, Becker elevated the Genocide Convention such as to make it virtually inapplicable in combat situations. It was not created, for instance, to ‘address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises “very serious issues of international law” and involves “enormous suffering” and “continuing loss of life”.’ The Convention, rather, was meant “to address a malevolent crime of the most exceptional severity.’
Having given the Israeli Defence Forces carte blanche to achieve its objectives, whatever measures used, Becker then took issue with the use of history by the South African legal team. They had presented a ‘deliberately curated, decontextualised, and manipulative description of the reality of current hostilities.’ Falling for a bit of legal curation himself, Becker reiterated the standard Israeli line when challenged about its policies towards Palestinians: allegations such as genocide went to ‘delegitimizing Israel’s 75-year existence’. Israel was unjustly deemed the wrongdoer; the Palestinians, victims with no ‘agency and responsibility’.
Continuing the strategy of de-historicizing the conflict (it’s all in the now and present), Malcom Shaw’s submission rejected the proposition that Israel had engaged in a multigenerational policy of dispossession and oppression of the policies amounting to a 75-year old Nakba. (Shaw’s views on this are simply inaccurate, given the number of candid statements made by Israeli politicians and intelligence chiefs over the decades acknowledging those very same policies.) The only relevant issue for Shaw was the October 7 attacks by Hamas, acts that were themselves genocidal. Israel’s lethal retaliation was not to be confused with genocidal intent. ‘If claims of genocide were to become the common currency of our conflict … the essence of this crime would be diluted and lost.’
Christopher Staker, another lawyer for the Israeli side, continued the theme in suggesting that fatalities and human suffering were simply the logical outcome of war and conflict. Such actions, even when taking place on such a scale, did not suggest ‘a pattern of conduct that plausibly shows genocidal intent.’ South Africa was, in effect, demanding that Israel not defend its citizens, which was bound to stir Hamas to continue attacking, raping and torturing Israelis. Now that’s some deliberate legal curating.
Broadly viewed, the Israeli case is a remarkable example of how the effect of law can be blunted by the proliferation of qualifications, exceptions and modifications. Genocide can take place, but never when waged in the name of self-defence. An appalling loss of life, starvation, displacements and forced removals can still take place and not constitute genocide.
Israeli officials have called this a strategy of ‘innovating ways to uphold international law.’ While it remains to be seen whether the ICJ is swayed by South Africa’s case, the danger here is that innovation blunts, if not buries the Genocide Convention altogether.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University.
Main image: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Public hearings on the request for the indication of provisional measures submitted by South Africa 11 January 2024 (International Court of Justice)