South Africa at the Int’l Court of Justice: Israel’s Actions in Gaza constitute Genocide
Juan Cole 01/12/2024
Ann Arbor (Informed Comment) – The historic proceedings against Israel on charges of genocide were almost completely ignored by the U.S. media, in what can only be described as censorship by neglect. The blackout on this crucial event smells of racism. What could be less important to a white nationalist establishment than an African country’s barristers arguing before an international tribunal for the rights of brown people being genocided by a major proxy of US foreign and military policy?
In fact, if Israel’s extreme far right government can get away with massacring 23,000 people, almost all of them innocent noncombatants and over 8,000 children, then International Humanitarian Law is a dead letter. This development, ironically enough, helps Vladimir Putin in his Ukraine campaign and so undermines the most important foreign policy objective of the Biden administration. Worse, it undermines any objection to war crimes or genocide, anywhere, ever, since it can plausibly be asserted that the US only cares about such matters when it can use these charges against a rival. We are being transported back to 1943, when the Axis could murder millions with impunity, and the Nuremberg trials are being branded a mistake.
Australia’s progressive site, The New Matilda, helpfully provided a written transcript of South Africa’s opening argument on January 11, alleging Israeli genocide in Gaza.
The full proceedings are presented by the SABC network:
SABC News: “South Africa presents its case against Israel at the ICJ”
The opening address was given by Adila Hassim. She is a distinguished attorney with a raft of degrees, who has been practicing since 2003. She co-edited a book on one of her interests, the laws regarding health in South Africa: Health and Democracy: A guide to human rights, health law and policy in post-apartheid South Africa, by Adila Hassim, Mark Heywood and Jonathan Berger (eds)· Siberlnk (2007). She gained renown for her defense of mental health patients who were dumped out of a state facility into conditions of squalor in which some of them died.
Her name shows that she is from South Africa’s Muslim community. South Africa has a population of 59 million, and its Muslims total about 1.5%. Many of them are originally from South India and were converted by Sufi mystics in South Africa. Others have a Malay background. Muslims were denied the vote and discriminated against by whites. Some Muslims played a significant role in the anti-Apartheid movement, which I wrote about here.
Adila Hassim SC, a human rights lawyer based in Johannesburg, South Africa.
Ms. Hassim’s argument is made on the basis of the Genocide Convention of 1948, which came into effect in 1951.
Article II of the Convention says,
- “In the present Convention, genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”
Ms. Hassim began by saying,
“Opening Address – South Africa
South Africa contends that Israel has transgressed article 2 of the convention by committing actions that fall within the definition of genocide. The actions show a systematic pattern of conduct from which genocide can be inferred.
Gaza is one of the two constituent territories of the Occupied Palestinian Territories, occupied by Israel since 1967. It is a narrow strip of approximately 365 sqkm…. Israel continues to exercise control over the space, territorial waters, land crossings, water, electricity, electromagnetic sphere, and civilian infrastructure in Gaza, as well as over key governmental functions….
Entry and exit by air and sea to Gaza is prohibited, with Israel operating the only two crossing points.
Gaza, which is one of the most densely populated places in the world, is home to approximately 2.3 million Palestinians, almost half of them children.”
She says all this to underline that Israel is in fact the occupying power in Gaza, as the United Nations insists.
She continues,
- “For the past 96 days Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare.
Palestinians in Gaza are being killed by Israeli weaponry from air, land and sea.
They are also at immediate risk of death by starvation, dehydration and disease, as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall.
This conduct renders essentials to life unobtainable.”
These are the sorts of actions prohibited by Article II, obviously. But Hassim isn’t asking for a summary judgment. Her legal strategy is to ask for what we in the US might call a preliminary injunction.
She says,
- “At this provisional measures stage… it is not necessary for the court to come to a final view on the question of whether Israel’s conduct constitutes genocide. It is necessary to establish only whether at least some of the acts alleged are capable of falling within the provision of the convention.
On analysing the specific and ongoing genocidal acts complained of, it is clear that at least some if not all of these acts fall within the Convention’s provisions. These acts are documented in detail in South Africa’s application, and confirmed by reliable… UN sources . . .”
I quoted some of the relevant passages of the complaint at Informed Comment. She now says that she will make a brief oral summary, and will show some video to support her points.
She moves to specific charges, the first of which is, in layman’s terms, mass slaughter:
“Israel’s first genocidal act
The first Genocidal act committed by Israel is the mas killing of Palestinians in Gaza, in violation of article 2a of the Genocide Convention.
As the UN Secretary General explained five weeks ago, the level of Israel’s killing is so extensive that nowhere is safe in Gaza. As I stand before you today, 23,210 Palestinians have been killed by Israeli forces during the sustained attacks over the last three months, at least 70 percent of whom are believed to be women and children. Some 7,000 Palestinians are still missing, presumed dead under the rubble.
Palestinians in Gaza are 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.
In the first three weeks alone following 7 October Israel deployed 6,000 bombs per week. At least 200 times, it has deployed 2,000 pound bombs in southern areas of Palestine designated as safe. These bombs have also decimated the north, including refugee camps . . .”
So, certainly a lot of killing, in contravention of II.a.
She concludes,
- “The scale of Palestinian child killings in Gaza is such that UN chiefs have described it as a graveyard for children.
The devastation, we submit, is intended to, and has laid waste to, Gaza beyond any acceptable, legal, let alone, humane justification.”
Since the intent to wipe out a people in whole or part is key to the crime of genocide, Ms. Hassim is here attempting to show intent on the part of Israeli officials and generals.
Her second charge is based on Article II.b, “infliction of serious bodily or mental harm”.
“Israel’s second genocidal act
The second genocidal act identified in South Africa’s application is Israel’s infliction of serious bodily or mental harm to Palestinians in Gaza 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.”
South Africa addresses the International Court of Justice
Now she turns to II.c., attempted physical destruction. She has a plethora of evidence for this one, given that the Israelis have indiscriminately reduced Gaza to rubble, destroying about half the housing stock, and left the people without potable water or sufficient food to avoid widespread hunger, not to mention destroying sewage treatment and sanitation facilities so as to promote diseases.
“Israel’s third genocidal act
Turning to the third genocidal acts under article 2c, Israel has deliberately imposed conditions in Gaza that cannot sustain life, and are calculated to bring about its physical destruction.
Israel achieves this in at least four ways. First, by displacement.
Israel has forced the displacement of about 85 per cent 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 . . .
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 . . .”
That seems clear.
Israel will reply on Friday for three hours. There will be no rebuttal, just the two presentations. Israel will almost certainly focus on the horrors of the Oct. 7 Hamas attack (and rightly so), and argue that the 23,000 dead are regrettable collateral damage from the necessary campaign to destroy Hamas. This argument, however, fails on the international legal grounds of proportionate response and the responsibility to avoid reckless endangerment of civilian lives. Still, 9 of the 15 justices of the International Criminal Court are from countries aligned with the US, and this case is the most consequential in the court’s history. If the justices fail in their duty to uphold International Humanitarian Law in this instance, the failure could be fatal to what is left of the legitimacy of international institutions, throwing us back into the jungle.