South Africa alleges Israel has committed genocide in Gaza

By Annette Gartland on January 12, 2024

At the International Court of Justice (ICJ) in The Hague lawyers for South Africa yesterday (Thursday) presented oral arguments supporting their allegation that Israel has violated the Genocide Convention in Gaza.

Israel will present oral arguments today.

According to South Africa’s application instituting proceedings against Israel, “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”.

South Africa says 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 – in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention”.

It further states that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide” and that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.

South Africa is requesting that the court indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

South Africa’s Minister of Justice and Correctional Services, Ronald Lamola, said that South Africa unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on October 7, 2023, but no armed attack on a state territory, no matter how serious – and even an attack involving atrocity crimes – could provide any justification for, or defence to, breaches to the Genocide Convention, “whether as a matter of law or morality”.

Lawyers for South Africa presented compelling arguments to the ICJ, detailing the massive loss of life and destruction of property in Israeli attacks on Gaza since October 7, 2023, when Hamas launched an attack inside Israel.

Adila Hassim said that, in the first three weeks after October 7, Israel deployed 6,000 bombs per week and, at least 200 times, deployed 2,000-pound bombs in southern areas of Palestine designated as safe.

“These bombs have also decimated the North, including refugee camps. Hassim said. “2,000-pound bombs are some of the biggest and most destructive bombs available.

“They are dropped by lethal fighter jets that are used to strike targets on the ground by one of the world’s most resourced armies.

“Israel has killed an unparalleled and unprecedented number of civilians with the full knowledge of how many civilian lives each bomb will take.”

Hassim said that the killings by Israel in Gaza were nothing short of the destruction of Palestinian life. “It is inflicted deliberately,” she said. “No one is spared, not even newborn babies.” UN chiefs had described Gaza as a graveyard for children, she said.

Palestinians had been subjected to relentless bombing wherever they went, Hassim said.

“They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families,” she told the court.

“They have been killed if they failed to evacuate, in the places to which they have fled, and even while they attempted to flee along Israeli-declared safe routes.”

The level of killing was so extensive, she said, that bodies found buried in mass graves wee often unidentified.

Hassim said more than 1,800 Palestinian families in Gaza had lost multiple family members and hundreds of multi-generational families had been wiped out with no remaining survivors: “mothers, fathers, children, siblings, grandparents, aunts, cousins often all killed together”.

She said that genocides were never declared in advance, but the ICJ had the benefit of the past 13 weeks of evidence that showed incontrovertibly “a pattern of conduct and related intention that justifies a plausible claim of genocidal acts”.

Hassim said Israel’s conduct had been deliberately calculated to cause widespread hunger, dehydration, and starvation.

Israel’s campaign had pushed Gazans to the brink of famine and an unprecedented 93% of the population in Gaza was facing crisis levels of hunger, she said.

Tembeka Ngcukaitobi said that genocidal utterances didn’t just come from the fringes of Israeli society. They were embodied in state policy and came from the president, the defence minister, the ministers of national security and of energy and infrastructure, members of the Knesset (parliament), and senior army officials, he said.

The intent to destroy Gaza had been nurtured at the highest levels of state in Israel, Ngcukaitobi said.

Ngcukaitobi said that Israel’s political leaders and military commanders had systematically, and in explicit terms, declared their genocidal intent and these statements were then repeated by soldiers on the ground in Gaza.

He said that a genocidal speech by the Israeli Prime Minister, Benjamin Netanyahu, on October 28, 2023, had gained ground among some elements of Israel’s civil society. The intentional failure of Israel’s government to condemn, prevent, and punish genocidal incitement constituted a grave violation of the Genocide Convention, he said.

Ngcukaitobi told the ICJ about Israeli soldiers celebrating blowing up houses in Gaza.

Vaughan Lowe said that if any military operation, no matter how carefully it was carried out, was carried out pursuant to an intention to destroy a people in whole or in part, it violated the Genocide Convention and must stop.

“Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations or otherwise, must stay within the limits set by international law, including the explicit duty in Article 1 of the convention to prevent genocide,” he said.

No matter how monstrous or appalling an attack or provocation, genocide was never a permitted response, Lowe told the court.

“The point is not simply that Israel is acting disproportionately,” he said. “The point is that the prohibition on genocide is an absolute, a peremptory rule of law. Nothing can ever justify genocide.”

Lowe told the court that Israel had, for over three months, been mounting a continuous siege and bombardment of Gaza of a ferocity and duration that could only be seen as an attempt to destroy Gaza and its citizens and it was publicly asserting that it would continue to do so.

“South Africa believes that the publicly available evidence of the scale of the destruction resulting from the bombardment of Gaza and the deliberate restriction of food, water medicines and electricity available to the population of Gaza demonstrates that the government of Israel – not Jewish people or Israeli citizens, the government of Israel, and its military – is intent on destroying the Palestinians in Gaza as a group and is doing nothing to prevent or punish the actions of others who support that aim,” Lowe said.

Max du Plessis told the court that what was happening in Gaza was not correctly framed as a simple conflict between two parties. It entailed destructive acts perpetrated by an occupying power – Israel – that had subjected the Palestinian people to an oppressive and prolonged violation of their rights to self-determination for more than half a century, he said.

“And those violations occur in a world where Israel for years has regarded itself as beyond and above the law,” Du Plessis (pictured left) added.

Blinne Ní Ghrálaigh said that reports of field executions and torture in Gaza were mounting, as were images of decomposing bodies of Palestinian men, women, and children left unburied where they were killed. Famine, she said, was around the corner.

She said that what was happening in Gaza was “the first genocide in history where its victims are broadcasting their own destruction in real time”.

The international community continued to fail the Palestinian people, “despite the overt, dehumanising, genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army actions on the ground”, she said.

Ní Ghrálaigh told the ICJ that some 180 women were giving birth daily amidst the chaos in Gaza. Women were undergoing caesarean sections without anaesthetic in barely functioning hospitals, she said, and, each day, more than ten Palestinian children would have one or both legs amputated, again many without anaesthetic.

“Families are sleeping in the open as temperatures plummet,” Ní Ghrálaigh said, quoting the United Nations Undersecretary General for Humanitarian Affairs.

“Areas where civilians were told to relocate for their safety have come under relentless bombardment. Medical facilities are under relentless attack.

“The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.”

A public health disaster was unfolding and infectious diseases were spreading in overcrowded shelters as sewers spilled over, Ní Ghrálaigh (pictured below, left) told the court.

South Africa’s ambassador to the Netherlands, Vusimuzi Madonsela, presented the list of provisional measures requested in his country’s application to the ICJ, which include the following:

- Israel shall immediately suspend its military operations in and against Gaza,
- Israel shall ensure that any military or irregular armed units which may be directed, supported, or influenced by it, as well as any organisations and persons which may be subject to its control, direction, or influence, take no steps in furtherance of the military operations referred to in point one,
- the Republic of South Africa and the State of Israel shall each, in accordance with the obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide, and
- Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article 2 of the convention.

South Africa also states that Israel should desist from, and take all measures within its power to prevent, the expulsion and forced displacement of Palestinians from their homes and the destruction of Palestinian life in Gaza.

Palestinians should no longer be deprived of access to adequate food and water and to humanitarian assistance and should have access to adequate fuel, shelter, clothes, hygiene, sanitation, and medical supplies and assistance, South Africa states.

South Africa also states that Israel should, in relation to Palestinians, ensure that its military as well as any irregular armed units or individuals “which may be directed, supported or otherwise influenced by it”, and any organisations and persons which may be subject to its control, direction or influence, do not commit any acts described in requests four and five, “or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide”.

Israel should also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, South Africa states.

Madonsela (pictured below) said that, in its application to the ICJ, “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”.

UPDATE: Euro-Med Human Rights Monitor says that 32,246 Palestinians were killed in Gaza between October 7, 2023, and January 19. The death toll includes 12,660 children, 6,860 women, 301 healthcare professionals, and 115 journalists.

Nearly 92% of those killed in the Israeli air and artillery attacks on the Gaza Strip were civilians, the organisation said.

Euro-Med Human Rights Monitor estimates that there are more than 1.95 million displaced people in the Gaza Strip who remain without a safe shelter amid inhumane conditions.