The Genocide Case in the ICJ: South Africa vs. Israel
by Arvind Narrain Clifton D’ Rozario

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 24000 casualties, with over 8000 children being killed and more than 60,000 have been injured. About 119 journalists have been targeted and killed during this time. 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 (ICJ) with an exemplary petition filed by South Africa alleging that Israel is violating its obligation to ‘prevent and punish genocide’. The ICJ is the United Nations' most important court, resolving disputes among its 193 member states and its decisions are “binding” on the parties, and though the court has no way of enforcing them it depends in the ultimate analysis on the United Nations Security Council (UNSC) for enforcement of its decisions.

The anti-colonial and anti-racist underpinnings of this act of South Africa cannot be lost on anyone, given the centuries of oppression and subjugation that the majority Black population have suffered at the hands of colonial powers. By filing the petition, South Africa is remembering its past and making a case that no country has a right to commit genocide. It is significant as well, while Germany has come out in support of Israel alongside a handful of other imperialist powers including the US and the UK, whereas Namibia, Bolivia, Cuba, Colombia, Brazil and scores of other countries have come out in support of South Africa and Palestine, exposing the hypocrisy of western democracy. As the Reverend Munther Isaac of the Lutheran Christmas Church in Bethlehem, said in his Christmas message, “leaders of the so called ‘free’ lined up one after the other to give the green light for this genocide against a captive population” and went on to say, “to our European friends, I never ever want to hear your lecture on human rights or international law again. And I mean this. We are not white I guess, it does not apply to us according to your own logic.”

South Africa, in its application filed before the ICJ on December 28, claims that the actions of Israel in Gaza violate the “Convention on the Prevention and Punishment of Genocide”, which was drafted in 1948 in response to the horrors of the Holocaust. From South Africa’s point of view, what is taking place in Gaza is a genocide perpetrated by Israel. Genocide is defined as including 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 also include the using of starvation “as a weapon of war”. International agencies estimate 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. Gaza’s oldest mosque, the Omari Mosque, along with scores of other mosques have been destroyed, and even Churches in Gaza have not been spared.

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 in 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.

How is South Africa establishing genocidal intent?

As South Africa’s legal consul 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 established 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 nothing 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 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.

It must be noted that the immediate purpose of the recently concluded hearings at the ICJ, is to convince the panel of 17 judges of the ICJ to order 'provisional measures' to prevent further "irreparable harm" to Palestinians in Gaza, whereas the larger question of whether Israel is “committing genocide” in Palestine, from an international law point of view, will take a while for the ICJ to decide. 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 it remains to be seen whether the ICJ responds on an urgent basis to this ongoing genocide and orders the provisional measures prayed for. Any decision by the ICJ denying the provisional measures sought for by South Africa, will make it complicit in Israel's colonization and genocidal war on Gaza. Any decision providing provisional measures will result in a “moral victory” at best, since the ICJ, as pointed above, has no way of enforcing its orders, and will depend on the UN Security Council, controlled by the very imperialist powers that support Israel - United States and the United Kingdom. It is however possible that such an order 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. Every support has to be given to the Palestinian struggle for freedom from Israel, and it is this solidarity of the working class to the revolutionary struggles of colonized people that is the ultimate guarantee of freedom.

The Genocide Case in the ICJ: South Africa vs. Israel