South Africa hopes to secure a binding order from the International Court of Justice this week to force the UN and its Security Council to stop weapons supplies to Israel as part of a genocide preventive measure.
The bombs from the US, UK and Germany that continue raining on Gaza have destroyed most of the city, and by 8 January had killed 22,835 people (9,000 children, 5,300 women), according to Gaza’s health ministry.
About 85% of the displaced population is from the 355,000 destroyed homes of 2.3 million people, according to SA’s application to the International Court of Justice.
By 29 October 2023, it was estimated that 6,000 bombs per week had been dropped on the tiny enclave, changing the colour of the territory from ochre to the grey of rubble when viewed from space, according to an AP report.
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UN special rapporteurs say Gaza is now in an “apocalyptic situation”.
Armed with files of recorded alleged genocide rhetoric by senior Israeli leaders, South Africa will seek to prove genocidal intent.
According to Israel’s government spokesperson, Eylon Levy: “The State of Israel will appear before the International Court of Justice at the Hague to dispel South Africa’s absurd blood libel.
“How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro bono for anti-Jewish racists. We have no doubt that after the Jewish State brings to justice the perpetrators of the bloodiest massacre of Jews since the Holocaust, history will judge South Africa for abetting the modern heirs of the Nazis.”
(Blood libel is a historic term where Jewish people were falsely accused of stealing children for their blood, to justify attacks on them.)
A layered case in 84 pages
South Africa’s 84-page application is an encyclopaedia of facts over argument, which it uses to layer a case for a rising genocide which requires an immediate cessation to stop it from becoming a full-scale 21st-century genocide.
It does not have to prove actual genocide at this point because it seeks a preservation or interim order ahead of an entire argument in terms of the Genocide Convention of 1948, an instrument forged in the fires of the Holocaust to ensure its horror would never happen again.
But it continues, as advocate Adila Hassim, who has led many of South Africa’s most revolutionary cases, will argue.
“… acts and omissions by Israel are genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group,” Hassim could argue as she opens South Africa’s case on Thursday morning.
She will present a fusion of data and facts, which the team argue are the backbone of a rising genocide.
South Africa will sketch a context of 75 years of apartheid for Palestinians, a 56-year occupation and a 16-year Gaza blockade, which have created an open-air prison for its people.
At the same time, South Africa’s team will repeat that “South Africa condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian groups.”
Genocidal intent
The most important part of the two-hour argument is likely to be the proposition that Israel has shown genocidal intent.
This is likely to be argued by international law expert John Dugard or senior counsel Max du Plessis, who often appears in The Hague. To do this, the lawyers have compiled statements made by Prime Minister Benjamin Netanyahu, President Isaac Herzog, the Israeli cabinet, Knesset members and military leaders.
Their own words dehumanise Palestinians, threaten their permanent removal and suggest extinction, the team will argue.
The South African application says, “Evidence of Israeli State Officials’ specific intent (dolus specialis) to commit and persist in committing genocidal acts or to fail to prevent them has been significant and overt since October 2023.
“Those statements of intent – when combined with the killing, maiming, displacement and destruction on the ground, together with the siege – evidence an unfolding and continuing genocide.”
Eylon Levy says that Hamas had genocidal intent when it perpetrated an act of genocide on Israeli soil on 7 October.
“It was an act of genocide perpetrated with Nazi-like cruelty and Nazi-like efficiency, in the service of Nazi-like ideology,” said Levy.
In their arguments, Du Plessis and Dugard are also likely to list how many UN agencies have warned about the likelihood of genocide. Here are some examples:
On 19 October 19 2023, the UN special rapporteurs said there was a risk of genocide; on 27 October, the UN Committee on the Elimination of Racial Discrimination warned of racist hate speech and dehumanisation; also on 27 October, the New York office head of the UN Human Rights High Commissioner stepped down, saying a textbook case of genocide was occurring in real-time.
On 2 November, eight UN special rapporteurs said they remained convinced that the Palestinian people are at grave risk of genocide.
By 16 November, 15 special rapporteurs said there was a genocide in the making.
South Africa itself has warned nine times of looming genocide in speeches at the UN and other fora and in its note verbale to the Israeli ambassador Eli Belotserkovsky, who has since been recalled to Tel Aviv.
“South Africa considers that the conduct of Israel – through its State organs, State agents and other persons and entities acting on its instructions or under its direction, control or influence… is in violation of its obligations under the Genocide Convention.”
It argues that Israel has failed to prevent, has committed, has conspired to commit, directed and publicly incited to commit and attempted to commit genocide.
It summarises the actions as the killing of Palestinians, the forced evacuations out of 85% of their land, widespread hunger, dehydration and starvation, medical needs and imposing measures to prevent Palestinian births.
“Israel has perpetrated and is perpetrating genocidal acts. Nowhere is safe in Gaza,” says the application.
The papers say that the killing of more than 100 journalists and the regular shuttering of communications networks is deliberate, to control news of what is happening during attacks.
Israel allows only embedded journalists who travel with the Israeli Defence Force and has forbidden fact-finding missions or journalists who want to report independently, says South Africa.
In two days of arguments, where each state party will have only two hours, the requested finding is limited by time and urgency.
“At this stage of the proceedings, however, the Court is not called upon to determine definitely whether the rights which South Africa seeks to protect exist; it need only decide whether it is satisfied that the rights asserted by South Africa on the merits are at least plausible in a possible interpretation of the (Genocide) Convention,” reads the application.
With a low bar and a mountain of evidence, numerous commentators believe South Africa has an excellent chance of securing measures to shield Palestinians from the worst of the ongoing violence.
“For the purposes of indicating provisional measures, the Court does not need to establish definitely that Palestinians are at risk of genocide, that they are being subject to genocidal acts, or that Israel is otherwise breaching its obligations under the Genocide Convention. Rather, it is sufficient that the obligation of South Africa to act to prevent genocide, or the right of South Africa to seek compliance by Israel with its obligations under the Convention not to commit genocide, and to prevent and punish genocide and related prohibited acts under the Convention be ‘plausible’.”
As the team concludes the hearing and makes the plea, they will ask the 15 judges on the bench to make the order that Israel immediately suspend military operations in Gaza; that it stop the killings of the Palestinian group; that it end conditions of life calculated to bring about its physical destruction in whole or part, and that it stop imposing measures to prevent Palestinian births.
In addition, the siege, which has caused hunger and hardship, must end to open up food, fuel, water and other humanitarian assistance.
The team will also shape an argument that what is under way is the destruction of a way of Palestinian life through the razing of the built environment, the destruction of libraries and other cultural heritage, and the killings of many academics who are the crucible of history and culture.
It may use the example of Shuja’iyya, which the application describes as “a suburb of Gaza City, once home to approximately 110,000 Palestinians [which] appears to now be a vast wasteland, entirely flattened as far as the eye can see.
“Its shops, schools, vibrant marketplaces, family homes, doctors, clinics, historic streets and the Ibn Uthman Mosque, and everything that once sustained Palestinian life there, has been damaged or destroyed, along with so many of its people.”
Genocide is different to war crimes or crimes against humanity in that it seeks extermination, much as the Nazis sought of the Jewish people. The destruction of Palestinian life will be an essential part of Thursday’s argument.
The SA team will ask the judges to submit a report on their request within a week to give effect to the order.
At the time of writing, South Africa’s case is supported by the Organisation of Islamic Cooperation countries (58 countries including Nigeria, Qatar, Saudi Arabia, UAE, Iran, Türkiye, Indonesia, Jordan and Palestine). Bolivia and Colombia have also signed on.
Nine hundred civil society movements, unions and support groups have revealed a global petition to pressure their governments to sign on.
How it will work
The application by South Africa and the response by Israel will be heard on Thursday, 11 January and Friday for three hours for each country. In an interview with Daily Maverick, an outcome to preserve life and stop violence is expected in 10 days to two weeks, said the director-general of the Department of International Relations and Cooperation, Zane Dangor.
South Africa is fielding a multinational eight-person team led by senior counsel Adila Hassim and Tembeka Ngcukaitobi, advised by international lawyer John Dugard and by Max du Plessis, both of whom are senior counsel and who spend most of their professional time in The Hague.
In addition, the government has drafted two international lawyers, the Irish lawyer Blinne Ní Ghrálaigh KC and Vaughan Lowe KC. Ní Ghrálaigh has developed the arguments with South Africa for months, and she will close arguments on Thursday. She has worked on genocide cases in Croatia and Serbia.
Read more in Daily Maverick: Israel-Palestine War
The complete Israeli statement on the ICJ case
Transcript of a statement at the PMO Press Conference on January 2, 2024, attributable to Israeli government spokesman Eylon Levy:
“On October 7, Hamas perpetrated an act of genocide on Israeli soil. Its death squads executed a campaign of systematic extermination, with a clear mission to murder as many Israelis as possible — as sadistically as possible.
“It was an act of genocide perpetrated with Nazi-like cruelty and Nazi-like efficiency in the service of a Nazi-like ideology. The only reason Hamas didn’t succeed in committing further genocide is because our security forces stopped them.
“Hamas openly makes clear its genocidal intent. On October 24, Hamas official Ghazi Hamad told Lebanese television: ‘We must teach Israel a lesson, and we will do this again and again. The Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth’.
“He goes on: ‘Nobody should blame us for the things we do. On October 7, October 10, October 1,000,000 – everything we do is justified.’
“Hamas is hellbent on the genocide of the Jews, and it is hellbent on sacrificing its civilians for that cause. We are fighting to remove the threat of annihilation, bring back the hostages trapped in the Terror Dungeons, and thwart Hamas’ systematic abuse of its civilian population.
“The State of Israel emphatically condemns South Africa’s decision to play advocate for the devil and make itself criminally complicit with the perpetrators of the October 7 Massacre.
“On October 8, South Africa openly aligned itself with the Hamas Rapist Regime when it blamed Israel for Hamas’ violation of the ceasefire and covered up Hamas’ crimes against humanity. It is now aiding and abetting that machinery of genocide.
“Collaborating with the perpetrators of genocide is, alas, not new to South Africa, which backed Omar Al Bashir after he was indicted for genocide in Darfur.
“While the Hamas Rapist Regime does everything to maximise civilian casualties with its despicable Human Shield Strategy, Israel is employing measures unprecedented in the history of warfare to minimise civilian casualties.
“In word and deed, we have been clear that we are targeting the October 7 monsters — and are innovating ways to uphold international law, including the principles of proportionality, precaution, and distinction in the context of a counterterror battlefield no army has faced.
“That is why we spent weeks urging the residents of northern Gaza to evacuate before the ground offensive. We made over 70,000 phone calls to warn civilians, sent 13 million text messages, left 14 million voice messages, and dropped nearly 7 million leaflets, urging civilians to evacuate temporarily for their safety, informing them about humanitarian pauses and precise evacuation routes.
“That is why we secured humanitarian corridors for civilians to escape Hamas, set up a helpline for civilians to tell the army if Hamas was stopping them from fleeing, and designated a humanitarian zone in one of the only places in Gaza where Hamas was not already hiding behind civilians.
“The Hamas Rapist Regime bears the full moral responsibility for all casualties in this war that it started and is waging from inside and underneath hospitals, schools, mosques, homes, and UN facilities.
“In giving political and legal cover to the October 7 Massacre and the Hamas Human Shield Strategy, South Africa has made itself criminally complicit with Hamas’ campaign of genocide against our people. It shares culpability for the tragic loss of human life.
“The State of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel.
“How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro bono for anti-Jewish racists. We do not doubt that after the Jewish State brings to justice the perpetrators of the bloodiest massacre of Jews since the Holocaust, history will judge South Africa for abetting the modern heirs of the Nazis.
“We assure South Africa’s leaders: history will judge you, and it will judge you without mercy.” DM