The genocide case in the International Court of Justice: South Africa v Israel

Feb 01, 2024
By Arvind Narrain

Ever since October 7, 2023, for over 100 days, Gaza has been bombed, its hospitals devastated,  its inhabitants have been cut off from food, water and shelter. There are over 24,000 casualties, with over 8000 children being killed. The bombing has resulted in the evacuation of 85% of its population who have been herded into smaller and smaller areas. The territory has been laid to waste with over 3,35,000 homes being damaged or destroyed. 

This catastrophic situation is now before the International Court of Justice with an exemplary petition filed by South Africa alleging that Israel is violating its obligation to prevent and punish genocide. The fact that South Africa filed this petition owes much to the South African experience of apartheid during which Palestine was a core supporter of the African National Congress. By filing the petition, South Africa is remembering its past and making a case that no country has a right to commit genocide.

In simple terms the case from South Africa’s point of view is that what is taking place in Gaza is a genocide perpetrated by Israel. Genocide is defined as, interalia, the following acts;  ‘killing members of a group’, ‘causing serious bodily or mental harm of a group and ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. However what is crucial in establishing that the above acts are genocide is to demonstrate that they were  committed with an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’

The acts which are inflicted upon the people of Gaza now also include the using of starvation “as a weapon of war” against the Palestinian people in Gaza.  There are estimates by experts such as international organisation Save the Children, that more Palestinians in Gaza may die from starvation and disease than airstrikes. The Israeli air strikes have also targeted the cultural, religious and social institutions of Gaza right from libraries, universities, museums, social and cultural spaces  to the Gaza archive, reducing to rubble the ability of an entire people to survive.

All these acts seem to be calculated to bring about the very destruction of the group.  As can be seen by the mounting evidence of destruction, South Africa has a relatively easier burden to discharge, when it has to show that these acts have occurred. For its documentation of destruction, South Africa  is relying on unimpeachable  sources. It was not media reports or newspapers that were relied upon but rather the extensive UN documentation including reports by Special Rapporteurs, Commission of Inquiries, UN Working Groups  as well as the documentation of agencies like UNICEF, World Food Program, UNRWA, WHO etc. The level of consensus that the destruction in Gaza is unprecedented and unconscionable, pervades all institutions in the UN system. To give just one example the UNICEF referred to Gaza as becoming a ‘graveyard of children’ highlighting poignantly the unbearable costs of this war.

However, how is South Africa establishing genocidal intent?

As South Africa’s legal counsel submitted before the International Court of Justice, what is unique in this case is that Israel’s top leaders made no secret that Gaza would have to be destroyed. The Prime Minister Netanyahu invoked the Biblical story of the total destruction of Amalek by the Israelites, stating: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember”. The relevant biblical passage reads as follows: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses”.

South Africa establishes that genocidal intent flows from the express words of  the Prime Minister, the President, Minister of Defence, Minister of National Security as well as other ministers, members of parliament and top army officials. South Africa by playing videos of  Israeli soldiers at war is able to place before the Court, evidence as to how this message of ‘annihilation’ is received, internalized and acted upon by the soldiers, when they carry out their acts of destruction of the people of Gaza singing that will ‘eliminate the seed of Amalek’.

Israel’s response to South Africa’s compelling case of the violation of the Genocide Convention was to outline the horrors of the Hamas attack on October 7 and to assert that it had a right to defend itself under international law. Under international law, both arguments are without merit. Only states are parties in the ICJ so the question of Hamas attack is not within the jurisdiction of  the Court. (Though South Africa was very clear in its condemnation of the attack, while noting that there was a difference between an action  by a group and an action by a state.) With respect to self defence, South Africa argues that this right is not a right without limits. It has to conform to the rules of war as embodied in the Geneva Conventions. It has crucially to conform to the Genocide Convention, since this is an obligation of international law which no state can derogate from.  No state can argue that it can commit genocide as a part of its right to self defence.

South Africa also argued for the ICJ  to order provision measures, without which the Palestinian people in Gaza would suffer ‘irreperable harm’. Among the measures are a call for Israel to ‘suspend military operations’ and to desist in the commission of genocide. South Africa also  urged the ICJ to consider measures which would ensure ‘prevention of the expulsion and forced displacement from their homes of Palestinians as well as  preventing the deprivation of  access to adequate food and water, humanitarian assistance, including access to adequate fuel, shelter, as well as medical supplies and assistance.’

The ICJ decision on provisional measures is expected in the next few weeks and one hopes that the ICJ responds on an urgent basis to this ongoing genocide and orders the provisional measures prayed for. Of course there is no guarantee that Israel will abide by any judgment of the ICJ, but any provisional measures ordered by the ICJ would further isolate Israel from global opinion and  increase the pressure on Israel and her backers to conform to the commands of international law and desist from this illegal and genocidal war.

The world owes South Africa a debt of gratitude for filing the case and thereby  acting on its obligations under the Genocide Convention to ‘prevent and prosecute the crime of genocide.’ South Africa has heard the voice of protesters  around the world and given  that cry of agony and anger a legal form. The fact that India has not chosen to act on its international obligation to ‘prevent genocide’ is a matter of deep shame. Surely a country which prides itself on being a leader of the global south, should stand with the ex-colonies (a majority of the membership of the United Nations) and legally oppose a genocide perpetrated by Israel on the people of Gaza.