Don’t hold your breath for a final judgement from the International Court of Justice as to whether Israel is, or isn’t, committing genocide in Gaza. Since 2019, the ICJ has been mulling over whether Myanmar has committed genocide against its Rohingya population, and still hasn’t reached a conclusion. Similarly, it took 14 years for the ICJ to conclude that while yes, acts of genocide were committed by Serbian forces in Bosnia in the 1990s, the Serbian government wasn’t directly responsible for committing genocide.

Problem being, an intention to commit genocide is rarely announced in advance. As a result, the threshold under the 1948 Genocide Convention is so high – evidence of a state’s prior and explicit intention to commit genocide – that it is highly unlikely that (in a few years’ time) Israel will be found guilty. Moreover, Israel has offered a defence of self defence, and has argued that the explicitly genocidal statements made by some Israeli politicians (e.g. “nuke Gaza” etc) were made by individuals, and were not official state policy. Really? On October 28, even PM Benjamin Netanyahu invoked the Biblical imperative to utterly annihilate the Amalrek civilisation that had attacked the children of Israel.

The immediate issue at stake at the ICJ hearings is not the genocide verdict, but whether the court will be willing to issue what are called “provisional measures.” These do not constitute a ruling on the merits of the case, and they do not imply guilt or innocence. Basically, they are a kind of restraining order. They would require all parties to cease and desist from actions that may worsen the existing situation, until such time as the court reaches its final decision on the genocide question, however long that might take.

In its written application to the court, South Africa has sought nine such provisional measures. How long might it take for the ICJ to rule on them? Over Russia’s actions in Ukraine, the ICJ came back in only 18 days with provisional restraints,which Russia then completely ignored. Yet as widely noted, Russia did not engage at all with the ICJ process. Israel, in contrast, has actively engaged with the ICJ, and that will probably complicate a court ruling on any of the nine forms of relief that South Africa is seeking. We are (probably) talking of waiting months at least, for the court’s rulings.

Making the case

South Africa’s extensive written brief is available here. The videos of South Africa oral arguments and the video of Israel’s oral response are available side by side, on this site. The Australian website New Matilda has published a useful written transcript of South Africa’s oral presentation.

For the record, South Africa is claiming that Israel’s conduct violates clauses 2a, 2b, 2c and 2d of the Genocide Convention. Lets take them in turn.

Article 2a. This clause prohibits the mass killings of civilians, as has been inflicted on Palestinians in Gaza, and in a situation where nowhere in Gaza is safe. As of 9 January, 23,210 Palestinians had been killed by Israeli forces over the past three months, with an estimated 70% of them being women and children. An additional 7,000 Palestinians are missing and presumed dead under the bomb rubble.

Palestinians in Gaza, South Africa contends, are being subjected to relentless bombing where-ever 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. The level of killing is so extensive that those bodies found are buried in mass graves, often unidentified.”

The extent of the bombing of civilian centres in Gaza is relevant to the genocide case being made. In the first three weeks alone following the Hamas attacks on 7 October, Israel is reported to have deployed 6,000 bombs per week. “At least 200 times,” South Africa told the court, [Israel] has deployed 2,000 pound bombs in southern areas of Palestine designated as safe. These bombs have also decimated the north, including refugee camps.” South Africa’s contention is that the Israeli government cannot be unaware of the inevitable civilian death toll from the intensive use of such weapons on civilian populations. As a result, South Africa says :”

“More than 1,800 Palestinians families in Gaza have lost multiple family members, and hundreds of multi-generational families have been wiped out with no remaining survivors – mothers, fathers, children, siblings, grandparents, aunts, cousins, often all killed together. This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No-one is spared. Not even newborn babies. The scale of Palestinian child killings in Gaza is such that UN chiefs have described [Gaza] as a graveyard for children.”

Article 2b. South Africa’s contention is that Israel’s infliction of serious bodily or mental harm to Palestinians in Gaza is in violation of Article 2b of the Genocide Convention.

Israel’s attacks have left close to 60,000 Palestinians wounded and maimed. Again, the majority of them, women and children. This in circumstances where the healthcare system has all but collapsed. I‘ll return to this later in my speech. Large numbers of Palestinians civilians, including children, are arrested, blind-folded, forced to undress, and loaded onto trucks taken to unknown locations. The suffering of the Palestinian people, physical and mental, is undeniable.

Article 2c. Allegedly, Israel has deliberately imposed conditions in Gaza that cannot sustain life, and that are calculated to bring about its physical destruction. Israel has done so, South Africa contends in each of four ways – starting with population displacements:

“Israel has forced the displacement of about 85 percent of Palestinians in Gaza. There is nowhere safe for them to flee too. Those who cannot leave or refuse to be displaced have either been killed, or are at extreme risk of being killed in their homes.Many Palestinians have been displaced multiple times, as families are forced to move repeatedly in search of safety. Israel’s first evacuation order on 13 October, required the evacuation of over 1 million people, including children, the elderly, the wounded, and infirm. Entire hospitals were required to evacuate, even newborn babies in intensive care.”

Moreover:

“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, and fuel, water and food and other necessities of life had been deliberately cut off. It was clearly calculated to bring about the destruction of the population.”

Reportedly, Israel has now damaged or destroyed an estimated 350,000 Palestinian homes, leaving at least half a million Palestinians with no home to return to.

“There is no indication at all that Israel accepts responsibility for rebuilding what it has destroyed. Instead, the destruction is celebrated by the Israeli army. Soldiers film 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 Palestinians homes, and thus extinguishing the very basis of Palestinian life in Gaza.”

Further to its alleged violations of article 2c, “Israel’s conduct has been deliberately calculated to cause widespread hunger, dehydration and starvation. Israel’s campaign has pushed Gazans to the brink of famine. An unprecedented 93 per cent of the population in Gaza is facing crisis levels of hunger. Of all the people in the world currently suffering catastrophic hunger, more than 80 per cent are in Gaza.”

Regardless, South Africa contends, Israel continues to impede the effective delivery of humanitarian assistance to Palestinians - “not only refusing to allow sufficient aid in, but removing the ability to distribute it through constant bombardment and obstruction.”

Thirdly, it is alleged that Israel has deliberately created conditions in which Palestinians in Gaza “are denied adequate shelter, clothes or sanitation.”

“For weeks, there have been acute shortages of clothes, bedding, blankets and critical non-food items. Clean water is all but gone, leaving far below the amount required to safely drink, clean and cook. Accordingly, the WHO has stated that Gaza is experiencing soaring rates of infectious disease outbreaks. Cases of diarrhea in children under five years of age have increased 2,000 per cent since hostilities began. When combined and left untreated, malnutrition and disease create a deadly cycle.”

The fourth of the alleged genocidal acts by Israel under article 2c has to do with the IDF’s military assault on Gaza’s healthcare system, which renders life unsustainable. Furthermore:

Those wounded by Israel in Gaza are being deprived of lifesaving medical care. Gaza’s healthcare system, already crippled by years of blockade and prior attacks by Israel, is unable to cope with the sheer scale of injuries.

Article 2d: As the UN itself has previously noted in statements by its Special Rapporteur on Violence Against Women and Girls, reproductive rights in Gaza have come under direct attack:

“The reproductive violence inflicted by Israel on Palestinian women, new-born babies, infants and children, could be qualified as acts of genocide under Article 2 of the Genocide Convention, including imposing measures intended to prevent births within a group.”

As South Africa contends:

Israel is blocking the delivery of lifesaving aid, including essential medical kits for delivering babies, in circumstances where an estimated 180 women are giving birth in Gaza each day. Of these 180 women, the WHO warns that 15 percent are likely to experience pregnancy or birth-related complications and need additional medical care. That care is simply not available.

Cumulatively, it is hard to escape the conclusion that this pattern of conduct by Israel is genocidal in effect, if not provable to have been genocidal by prior intent. At best, Israel looks to be responsible for wilful genocidal manslaughter, if not deliberate genocidal murder. The defences that Israel has so far mounted at the ICJ have consisted of large amounts of diversionary whataboutism - what about Hamas on October 7, what about Hamas attitudes to the state of Israel, and what about Hamas using Palestinians as human shields?

None of this amounts to a convincing rebuttal. If there were safe areas to which Gazans could go, or if there were credible efforts to minimise and alleviate civilian casualties and suffering... Perhaps Israel’s defence would have more merit. But the reality of mass bombardments of civilian centres, the mass displacement of an entire population and the policies of mass starvation and mass dehydration substantially weaken Israel’s arguments about human shields. With good reason, the bulk of responsibility for collective slaughter usually falls upon those doing the killing.

The genocidal intent, South Africa concluded,“is evident from Israel’s conduct in specially targeting Palestinians living in Gaza; using weaponry that causes large-scale homicidal destruction, as well as targeted sniping of civilians; designating safe zones for Palestinians to seek refuge, and then bombing these; depriving Palestinians in Gaza of basic needs – food, water, healthcare, fuel, sanitation and communications; destroying social infrastructure, homes, schools, mosques, churches, hospitals; and killing, seriously injuring and leaving large numbers of children orphaned.”

It is a compelling argument. Tellingly though, the US media has reportedly given scant coverage to the ICJ proceedings.

Footnote One: The West’s silence on Israel’s conduct – and the silence from successive New Zealand governments has been deafening – has damaged the credibility of international human rights law. In future, whenever the West uses such laws to condemn tyrants and dictators, the offenders need only utter the word “Gaza” to expose the hypocrisy involved.

Footnote Two: Israel’s use of the “human shields” argument to blame Hamas for the carnage being wrought by the IDF reminds me of the orders given over 800 years ago during the siege of the French city/fortress of Beziers. The papal forces surrounding Beziers were seeking to root out the followers of the Cathar heresy. When the walls were finally breached, large numbers of the Catholic faithful were found to be living amongst the heretics.

Regardless, the papal legate Arnaud Amalric issued the infamous order to “kill them all, and let God decide.” The city was burned. As Amalric said later in a letter to the Pope: “Our men spared no one, irrespective of rank, sex or age, and put to the sword almost 20,000 people.” Blame the Cathars then, for complicating the military offensive, by using the innocent as human shields. Best then to kill them all, just to be sure.

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