South Africa Argues ‘Genocidal Intent’ by Israel in Gaza

January 11, 2024 Articles, Features
The South African legal team at the ICJ. (Photo: via @sahouraxo Twitter page)

By Nurah Tape  

South Africa has contended that “the evidence of genocidal intent” by Israel in Gaza “is not only chilling” but “also overwhelming and incontrovertible.”

This is according to Advocate Tembeka Ngcukaitobi, a member of the legal team that presented South Africa’s case, accusing Israel of genocide, at the International Court of Justice (ICJ) in The Hague on Thursday.

In his argument, Ngcukaitobi outlined “an extraordinary feature in this case”, which is how “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.”

“These statements are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza,” he explained. 

Using video and audio evidence, Ngcukaitobi listed inciteful statements made by senior Israeli government officials, members of the Knesset, and military leaders, such as the biblical reference to Amalek by the Israeli Prime Minister Benjamin Netanyahu, which filtered down to “the foot soldiers.”

There was “now a trend” among soldiers to film themselves committing atrocities against civilians in Gaza, the advocate added. 

He said the “scale of destruction – makes it clear that genocidal intent is understood and put into practice” because the destruction of Palestinian life is “articulated state policy.”

“Any suggestion that senior politicians did not mean what they said, much less that the meaning was not understood by soldiers in Gaza, would be without any merit,” the advocate stressed. 

Systematic Pattern of Genocidal Conduct

Advocate Adila Hassim who opened the arguments said, “South Africa contends that Israel has transgressed Article II of the (Geneva) Convention, by committing actions that fall within the definition of acts of genocide. The actions show a systematic pattern of conduct from which genocide can be inferred.”

Hassim outlined the extent of death and destruction inflicted by the Israeli army upon the Palestinian population.

“For the past 96 days, Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare. Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea,” Hassim said. 

“They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall. This conduct renders essentials to life unobtainable.”

Hassim referred to Israel’s first evacuation order on October13, which required the evacuation of over 1 million people including children, elderly, wounded and infirm.

She said, “Entire hospitals were required to evacuate, even newborn babies in intensive care. The order required them to evacuate the north to the south within 24 hours. The order itself was genocidal.”

“It required immediate movement, taking only what could be carried while no humanitarian assistance was permitted… It was clearly calculated to bring about the deliberate destruction of the population.”

Hassim went on to demonstrate how Israel’s conduct violates Articles II(a); II(b); II(c); and II(d) of the Convention; i.e. Killing Palestinians in Gaza; Causing serious mental and bodily harm to Palestinians in Gaza; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and Reproductive violence.

Hassim said “genocides are never declared in advance.”

“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.”

She further said “nothing will stop this suffering, except an Order from this Court,” adding that “Without an indication of provisional measures, the atrocities will continue; with the Israeli Defence Force indicating that it intends pursuing this course of action for at least a year.”

The Question of Jurisdiction

International Law Professor, John Dugard, started off his presentation by saying that the people of  South Africa and Israel both have a history of suffering.

“Both States have become parties to the Genocide Convention in the determination to end human suffering,” Dugard added.

And that it was “in terms of this Convention, dedicated to saving humanity, that South Africa brings this dispute before this Court.”

He outlined how South Africa tried, through diplomatic means, to engage Israel as it responded to the October 7 operation by the Resistance Movement, Hamas, “with an attack on Gaza that resulted in the indiscriminate killing of innocent Palestinian civilians, most of whom were women and children.”

The South African government repeatedly voiced its concerns, in the Security Council and in public statements, that “Israel’s actions had become genocidal,” Dugard explained.

He mentioned that on November 10, in a formal diplomatic démarche, it informed Israel that while “it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes, including genocide.”

When South Africa referred Israel to the International Criminal Court (ICC) for the crime of genocide to be investigated, it was a “major act on the part of a State.”

In announcing that decision President Cyril Ramaphosa publicly expressed his abhorrence “for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place.”

South Africa had repeated this accusation at a BRICS meeting on November 21 and at an Emergency Special Session of the UN General Assembly on November 21.

He said “no response from Israel was forthcoming.” However, “none was necessary” as by this time, “the dispute had crystallized as a matter of law.”

In late 2000, after the outbreak of the Palestinian Second Intifada, Dugard was appointed by the United Nations Commission on Human Rights (UNHCR) chairman of a commission of inquiry on the situation of human rights in the Palestinian territories.

Rights of the Palestinian People

Advocate and Law Professor Max Du Plessis asserted to the Court that “Palestinians in Gaza – as a very substantial and important part of the Palestinian national, racial and ethnic group – simply but profoundly are entitled to exist.”

To situate the right to exist, and the threats to that right, “requires the Court to appreciate that this Application by South Africa is brought within a particular context,” he explained.

Du Plessis said that what is happening in Gaza now is not correctly framed as a simple conflict between two parties.

It entails, instead, destructive acts perpetrated by an occupying power, Israel, that has subjected the Palestinian people to an oppressive and prolonged violation of their rights to self-determination for 56 years.”

And those violations, the advocate added, “occur in a world where Israel for years has regarded itself as beyond and above the law. “

Du Plessis cited Arif Husain, the chief economist at the United Nations World Food Program, who “chillingly warned on January 3,  that “I’ve been doing this for the past two decades, and I’ve been to all kinds of conflicts and all kinds of crises. And, for me, this (the situation in Gaza) is unprecedented because of, one, the magnitude, the scale, the entire population of a particular place; second, the severity; and, third, the speed at which this is happening, at which this has unfolded, is unprecedented. In my life, I’ve never seen anything like this in terms of severity, in terms of scale, and then in terms of speed.”

Du Plessis said that South Africa has turned to the ICJ “seeking to protect the core rights of Palestinians in Gaza to be protected from acts of genocide, attempted genocide, direct and public incitement to genocide, and complicity in and conspiracy to commit genocide.”

Risk of Irreparable Prejudice and Urgency

Quoting a UN official who said “Gaza has become a place of death and despair,” Irish lawyer, Blinne Ní Ghrálaigh, said there is an urgent need for provisional measures to protect Palestinians in Gaza from the irreparable prejudice caused by Israel’s violations of the Genocide Convention.

In the words of the Commissioner-General of the United Nations Relief and Works Agency, Ni Ghrálaigh said, there must be “an end to the decimation of Gaza and of its people”.

She said “as to the criterion of irreparable prejudice, for decades now, the Court has repeatedly found it to be satisfied in situations where serious risks arise to human life or to other fundamental human rights,” such as Armenia v Azerbaijan. 

Ní Ghrálaigh, who has also appeared before the ICJ on behalf of Croatia in a case alleging genocide by Serbia, said it is notable that the Court has found provisional measures to be justified in all three cases where they were previously sought in relation to violations of the Genocide Convention. It did so in Bosnia v. Serbia in 1993, in The Gambia v. Myanmar case, and more recently, in indicating provisional measures in Ukraine v. Russia, she explained.

“If the indication of provisional measures was justified on the facts in those cases I have cited, how could it not be here, in a situation of much greater severity, where the imminent risk of irreparable harm is so much greater?” she asked. 

Ni Ghrálaigh said the international community continues to fail the Palestinian people, “despite the overt dehumanizing genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli military’s actions on the ground; despite the horror of the genocide against the Palestinian population being live-streamed from Gaza to our mobile phones, computers and televisions screens.

She added that it is “the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate — so far vain — hope that the world might do something.”

“Gaza represents nothing short of a ‘moral failure’, as described by the usually circumspect International Committee of the Red Cross,” she said.

Provisional Measures Sought 

Professor Vaughan Lowe, in his presentation, pointed out that the Court does not, at this stage, have to determine whether Israel has acted contrary to its obligations under the Genocide Convention. 

“It is concerned now only with the question of what provisional measures are required pending its final decision on the merits,” Lowe said. 

He outlined five requirements for the ordering of provisional measures, including: that there had to be prima facie jurisdiction; should be a link between the measures requested and rights underlying the claim; the plausibility of the rights that are claimed; and there must be a risk of irreparable prejudice capable of arising prior to the final determination of the dispute, and there must be urgency.

Lowe pointed out that Israel’s continuing operation in Gaza since the 7 October attack “is the focus of this case.” 

He said “Israel says that Palestine and Palestinians are not its target, and that its aim is to destroy Hamas. But months of continuous bombing, flattening entire residential blocks and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be a man-hunt for members of Hamas.”

“It is an indiscriminate attack, killing, maiming and terrorizing the entire population of Gaza with no regard to questions of innocence or guilt, obliterating the homes and cities in which they live,” Lowe said, “and destroying any practical possibility of their return to make their homes amidst the rubble.”

Lowe requested an order from the Court for the “immediate suspension” of Israel’s military operations in and against Gaza.

He said “it is no use Israel saying that it does whatever it can to minimize the deaths of innocent men, women and children.”

The use of 2000 pound bunker-busting bombs and dumb bombs in residential areas, and the relentless bombardment of Gaza, “and even of so-called ‘safe areas’ to which Palestinians have been directed by Israel, tell another story,” he continued.

“But that is not the only point. It is not just a question of scale and of indiscriminate killing. It is also a question of intention.”

The professor explained that “if any military operation, no matter how it is carried out, is carried out pursuant to an intention to destroy a ‘people’, in whole or in part, it violates the Genocide Convention, and it must stop. That is why all military operations capable of violating the Genocide Convention must cease.”

He also said that “the point is not simply that Israel is acting ‘disproportionately’: the point is that the prohibition on genocide is an absolute, peremptory rule of law.”

“Nothing can ever justify genocide. No matter what some individuals within the group of Palestinians in Gaza may have done, and no matter how great the threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population with the intent of destroying them cannot be justified,” Lowe stressed. 

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The professor concluded that “this is not a moment for the Court to sit back and be silent.”

“It is necessary that it assert its authority, and itself order compliance with the obligations under the Genocide Convention. Indeed, it is hard to think of a case in recent history which has been so important for the future of international law, and of the Court.”

Recognizing the Ongoing Nakba

Vusi Madonsela, Ambassador Extraordinary and Plenipotentiary of South Africa to the Kingdom of the Netherlands, concluded South Africa’s submission by saying that: “In our application, South Africa has recognised the ongoing Nakba of the Palestinian people through Israel’s colonisation since 1948, which has systematically and forcibly dispossessed, displaced, and fragmented the Palestinian people, deliberately denying them their internationally recognised, inalienable right to self-determination, and their internationally recognised right of return as refugees to their towns and villages, in what is now the State of Israel.”

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He went on to list the measures requested by South Africa, which included, inter alia:

the immediate suspension of Israel’s military operations in and against Gaza;

that any military or irregular armed units take no steps in furthering the military operations referred to before;

both South Africa and Israel to take reasonable measures within their power to prevent genocide;

as well as Israel being requested to submit a report to the Court on all measures taken to give effect “to this Order within one week, as from date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court, and that such reports shall be published by the Court.”

Israel will present its counter arguments on Friday.

(The Palestine Chronicle)

– Nurah Tape is a South Africa-based journalist. She is an editor with The Palestine Chronicle.

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