Oral arguments have concluded in South Africa’s genocide case against Israel. The International Court of Justice now has the chance to order a halt to Israel’s mass slaughter in Gaza.
Minister of Justice and Correctional Services of South Africa Ronald Lamola answers the questions of press members related to the public hearings of South Africa’s genocide case against Israel at the International Court of Justice in the Hague, Netherlands, on January 11, 2024. (Dursun Aydemir / Anadolu via Getty Images)
South Africa contends that Israel is committing genocidal acts prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, better known as the Genocide Convention. As a signatory to the Genocide Convention, Israel has accepted the International Court of Justice (ICJ)’s jurisdiction in enforcing it. And in the past, the ICJ has recognized that because states have an affirmative obligation to prevent genocide, any signatory to the Genocide Convention can bring claims against another signatory if they believe they are carrying out genocide.
In making the case that Israel had breached the Genocide Convention, South African lawyer Adila Hassim recounted to the court the grim statistics of Israel’s slaughter. As of January 9, Israel had killed 23,210 Palestinians in Gaza, most of them civilians, with an additional 7,000 Palestinians missing, “presumed dead under the rubble.” One-third of those killed have been under eighteen, leading Gaza to be dubbed a graveyard for children.
An additional sixty thousand Gazans have been wounded or maimed, and as another member of South Africa’s legal team, Irish lawyer Blinne Ní Ghrálaigh, pointed out, many people have been wounded not once, but again and again. Each day in Israel’s assault, an average of ten Palestinian children have had one or both legs amputated. Given the siege to which Israel has subjected Gaza, most of these amputations are performed without anesthesia. Israel’s “genocidal assault,” Ní Ghrálaigh noted, had given birth to a “terrible new acronym”: WCNSF, for Wounded Child — No Surviving Family.
South Africa’s legal team documented not just the extent of the death and destruction, but the methods. Since the start of the war, Israel has dropped an average of six thousand bombs per week. It has unleashed two hundred or more two-thousand-pound bombs, including on refugee camps. Because Gaza is one of the most densely populated areas on Earth — over 80 percent of its inhabitants are refugees — Israel’s bombardment, one of the largest in modern history, has been shockingly deadly.
As Hassim told the court:
Palestinians in Gaza are subjected to relentless bombing wherever they go. 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. 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.”
It isn’t just the brutal bombing. Israel has also imposed on Gazans conditions that cannot sustain human life. The goal of such conditions, South Africa argues, is the physical destruction of the Palestinian people in whole or in part — i.e., genocide.
South Africa’s legal team cited several ways that Israel has made Gaza unlivable, including forcibly displacing Palestinians. Early in the war, Israel ordered over a million people, including those confined to hospitals, to immediately evacuate or be bombed. Over the course of the war, Israel has destroyed nearly 355,000 Palestinian homes. Israeli soldiers, Hassim told the court, have filmed “themselves joyfully detonating entire apartment blocks and town squares; erecting the Israeli flag over the wreckage seeking to re-establish Israeli settlements on the rubble of Palestinian homes.”
In addition to displacement, Israel’s brutal military campaign has inflicted starvation, dehydration, the spread of disease, and the collapse of Gaza’s already fragile health system. South Africa alleges that this has been deliberate. Not only is Israel making delivery of aid difficult through its extensive bombing, Israel, which controls the border crossing, is preventing sufficient levels of aid to arrive. Between December 26 and January 8, Israel on five separate occasions blocked the UN from ferrying medical supplies to Gaza’s hospitals — an assault on Gaza’s health care system.
While South Africa was arguing that Israel’s mass killings of Palestinians, its denial of aid, and attacks on health care infrastructure amounted to genocidal acts, Israel was carrying on with these very acts. The same day as South Africa’s oral arguments, Israel blocked UN humanitarian aid from entering Israel, denied a World Health Organization medical mission, and killed four Palestinian ambulance drivers, a killing that the Palestinian Red Crescent Society labeled intentional.
South Africa’s Case
At this stage in the proceedings, the ICJ is not being asked to rule definitively whether Israel has carried out genocide. If past cases are any indicator, such a determination will take years. Under the Genocide Convention, the ICJ can and has ordered what are called “provisional measures.” In layman’s terms, the ICJ does not have to allow a party to perpetrate a likely genocide until a lengthy legal process takes place. Instead, under exceptional circumstances where there are plausible violations of the convention and grave urgency, they can order protections for the populations under assault.
While the merits will ultimately be decided later, South Africa clearly laid out the framework for the contention that Israel has committed genocide. Genocide is not just mass killing, something Israel’s unprecedented scale of destruction in Gaza certainly constitutes. It requires genocidal intent — that is, the perpetrator must intend to destroy a specific national, racial, religious, or ethnic group in whole or in part.
The case for genocidal intent was made by Tembeka Ngcukaitobi. His argument was twofold. First, Israel’s conduct is itself evidence of genocidal intent. After all, everyone knows what the outcome of dropping two-thousand-pound bombs on residential neighborhoods, having snipers fire on civilians, targeting family homes, or ordering people to evacuate and then killing them as they flee will be.
Israel’s conduct is itself evidence of genocidal intent.
Second, Ngcukaitobi put before the court the statements of Israel’s own political leaders, including, among many others, Israeli president Isaac Herzog (“this rhetoric about civilians not aware, not involved, is absolutely not true”) and Defence Minister Yoav Gallant (who has labeled Gazans human animals and said “Gaza won’t return to what it was before. We will eliminate everything”).
He played the infamous clip in which Israeli prime minister Benjamin Netanyahu tells soldiers to “remember what Amalek has done to you.” This is a reference to a Biblical story, in which God calls for Saul to retaliate against the Amalekites by killing their “men and women, children and infants, cattle and sheep, camels and donkeys.” Netanyahu repeated this command again in a letter to Israeli soldiers. The South African legal team also showed a widely circulated video of Israeli soldiers dancing and singing about how in Gaza, they would obey only one command: to “wipe off the seed of Amalek.”
One of the most chilling pieces of evidence concerned a bizarre morale-boosting exercise. Israel called up its oldest reservist, ninety-five-year-old Ezra Yachin, and had him don a uniform and speak to its soldiers. Yachin is a veteran of the Deir Yassin massacre. On April 9, 1948, before the creation of Israel, Zionist militias attacked the village of Deir Yassin, slaughtered civilians, and essentially wiped it off the map. Accounts of both perpetrators and survivors included tales of Palestinians being tied to trees and burned alive or lined against walls and mowed down with machine guns. There were also allegations of rape and sexual violence committed against Palestinian civilians. Deir Yassin was not the only Palestinian village eradicated during the Nakba, but it was the reports of the Deir Yassin massacre that prompted many Palestinians to flee, rendering them refugees.
Hosting a veteran of one of the most infamous anti-Palestinian massacres sends a message in and of itself. But Yachin, in his address to soldiers, declared, “Be triumphant and finish them off, and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live.” Not limiting his comments to Gaza, he told the soldiers, “If you have an Arab neighbor, don’t wait, go to his home and shoot him.”
South Africa’s legal team and representatives continuously insisted that the current genocide must be considered in this longer, seventy-five-year context. South Africa’s ambassador to the Netherlands, Vusimuzi Madonsela, started the proceeding by referring to the “ongoing Nakba of the Palestinian people,” beginning with Israel’s founding in 1948, and stressed that Palestinians face apartheid both within Israel and within the Occupied Palestinian Territories.
Israel’s Defense
During its own oral arguments, South Africa’s legal team preemptively answered why it hadn’t brought proceedings against Hamas for its October 7 attack (which it condemned both in written submission and oral arguments), noting the ICJ has no authority over a nonstate actor.
Nonetheless, Israel’s defense invoked October 7, going so far as to show pictures of the hostages during its presentation. Israel argued that South Africa is close to Hamas and Hamas had likely committed genocide, meaning that South Africa, not Israel, had likely breached the Genocide Convention.
Lawyers for Israel engaged in a mix of atrocity denial, blaming Hamas and justifying Israel’s own actions. Tal Becker, a legal advisor for Israel’s minister of foreign affairs, accused South Africa of citing unverified numbers from Hamas when claiming over twenty-three thousand Palestinians had died. (The figures are from Gaza’s health ministry.) He also asserted that South Africa had failed to mention how many of those dead were militants, Palestinians killed by Hamas, civilians assisting the war, or other legitimate targets.
Becker and another member of the legal team, Galit Raguan, made similar arguments about the number of homes destroyed. They claimed that some of the homes were legitimate military targets destroyed by Israel, and other buildings were damaged by Hamas, either through booby traps or misfired rockets.
Israel’s legal team further asserted that ambulances that were being used to transfer fighters and humanitarian aid shipments were smuggling weapons. They contended that Hamas had transformed schools, UN buildings, hospitals, and mosques into military targets — hiding weapons, for instance, in children’s bedrooms and incubators. They devoted an extraordinary amount of time to defending military actions on hospitals, insisting that Hamas was using them as command centers, to store weapons, and hide hostages, and that many hospital staffers were Hamas. Israel has made such claims before, only to have them fall apart under scrutiny.
While the ICJ has jurisdiction over the Genocide Convention, it does not have jurisdiction over other war crimes. Israel’s defense frequently brought this up, implying that even if Israel’s actions were war crimes, they were not genocide. And thus they were not within the purview of the ICJ.
“We Did What We Could. Remember Us.”
During her presentation to the court on behalf of South Africa, Ní Ghrálaigh showed two photographs, both of the same hospital whiteboard. In the first photo, the whiteboard had been cleared of surgical cases, leaving only a handwritten message from Dr Mahmoud Abu Nujaila of Doctors Without Borders. The message reads: “We did what we could. Remember us.” The second photo showed the same whiteboard, containing the same message, but after an Israeli strike on the hospital. The strike killed Dr Nujaila.
Israel is attacking one of the most besieged people on the planet, a people who have been displaced, occupied, and assaulted long before the latest escalation in violence.
“South Africa is here before this court, in the Peace Palace. It has done what it could. It is doing what it can,” Ní Ghrálaigh told the ICJ, urging them to act.
Israel is attacking one of the most besieged people on the planet, a people who have been displaced, occupied, and assaulted long before the latest escalation in violence. It is able to do so, because it enjoys the support of the world’s most powerful country, the United States, which is willing to fund the slaughter and run cover for its perpetrators. The United States was the sole veto of a UN Security Council resolution calling for a cease-fire.
For too long, too many have been willing to accept any crime committed by Israel, to tolerate any atrocity carried out against the Palestinian people. International institutions have repeatedly failed.
The ICJ now has a choice. It can order a halt to Israel’s genocidal campaign in Gaza, the first step in finally achieving justice for Palestinians. Or it can implicitly accept the suffering that is unfolding in front of all of us.