Can South Africa Make the UN Court Stop Israel’s Genocide?

Of all crimes known to man, genocide is the biggest perpetration, a transgression of immense scale and severity. Genocide encompasses extreme violence against a group of people: deliberately killing, causing serious bodily and mental harm, engaging in reproductive violence, and inflicting on the group debilitating conditions of life with the sinister aim of bringing about its physical destruction. Genocide does not only target the group’s current existence, but also the group’s posterity is threatened with extinction.

So disreputable a crime is genocide that it is always seen as an invalid measure. Genocide is not considered a valid response to any argument or attack. It is not tolerated as a response to self-defense. It is not tolerated in times of war or peace. In fact, there are no exceptions, qualifications, or justifications that make genocide justifiable.  This much is clear about the terms of genocide.

It is under these terms that countries and citizens of the world raise concerns about the present events taking place in the Middle East, about the rapid killing of Palestinians at the hands of Israeli forces. A South African legal team has taken these issues up to the International Court of Justice to seek a court injunction on the massacre through legal proceedings.

On December 29, 2023, an application was filed on behalf of the South African Government invoking violations of the 1948 Genocide Convention (particularly with reference to Article 9). Subsequently, a South African legal team brought the case against Israel for the crime of genocide, concerning the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa vs. Israel).

The South African legal team provided damning evidence for their case against Israel’s genocide of Palestinian people. In doing so, they presented a mature case that refrained from showing bloodstained images and videos of violence and duly respected the people of Palestine and the Court, refusing to turn the latter into a Hollywood screening room, or in their words deciding “against turning this court into a theatre for spectacle.”

To begin, the African attorneys provided a brief historical context of apartheid, discrimination, human rights violations, and genocidal acts since Israel’s 1948 colonization, displacement, and dispossession of Palestinian people and lands, which they described as a “75-year apartheid, 56-year occupation and 16-year siege imposed on the Gaza Strip.” They also painted the picture of Israel’s full control over Gaza since 1967, one that presently encompasses control over land, water, sea, air, government, and electricity.

However, the bulk of their testimony and evidence concerned the present onslaught of the past three months. Since October 2023, Israeli forces have killed more than 23,000 Palestinians in Gaza, with an additional 7,000 missing and presumed dead. Israel bombed schools, hospitals, places for religious worship (Catholic Churches included), refugee camps, and supposed “safe zones” in Gaza. One attorney testified that “in the first three weeks alone following 7 October, Israel deployed 6,000 bombs per week. At least 200 times, it has deployed two-thousand-pound bombs in southern areas of Palestine designated as ‘safe’.” In just three months, Israel destroyed more than 355,000 Palestinian homes and forcibly displaced around 85 percent of Palestinians.

Additionally, “hundreds of multigenerational families have been wiped out, with no remaining survivors,” and nearly “60,000 Palestinians wounded and maimed” mostly women and children. Reproductive violence targeted women, girls, infants, children babies, to prevent births. In fact, “large numbers of Palestinian civilians including children are arrested, blindfolded, forced to undress and loaded onto trucks, taken to unknown locations.” Hunger crises loom as the majority of Palestinians in Gaza, 93 percent, do not have access to food or water, putting them at risk for disease, dehydration, and starvation. In Gaza, there is limited access to healthcare, shelter, and sanitation.

All these events, the team argued, point to genocidal acts that should be condemned and permanently halted by the Court.

To show explicit declaration of genocidal intent, the South African legal team read verbatim quotes from Israeli political leaders, military officials, and soldiers. Prime Minister Benjamin Netanyahu frequently invoked his religious text. On more than one occasion Netanyahu went on record telling Israeli forces about Palestinians: “Put to death men and women, children and infants, cattle and sheep, camels and donkeys.” Defence Minister Yoav Gallant stated: “Gaza won’t return to what it was before. We will eliminate everything…we will reach all places.” Heritage Minister in the Israeli government Amichai Eliyahu said: Israel “must find ways for Gazans that are more painful than death.”

Like the other officials, President Isaac Herzog also implicated the entire population of Gaza residents: “This rhetoric about civilians not aware, not involved, is absolutely not true…we will fight until we break their backbone.” Finally, Israeli army reservist Ezra Yachin commanded Israeli soldiers: “Finish them off…Don’t leave anyone behind…Erase the memory of them… If you have an Arab neighbour, don’t wait, go to his home and shoot him…Let them drop bombs on them and erase them.”

Such is the inculpatory evidence laid before the Court in the persuasive way the South African legal team let the very statements and acts of the Israeli forces speak for themselves. The South African legal team also cited United Nations sources whenever possible as though to suggest that if the United Nations were to rule against its arguments, it would in effect be in disagreement with its own official publications. Furthermore, 148 United Nations staff members have been killed in the violence, signaling that the Israeli forces have certainly cast a net so wide that it has also ensnared UN aid workers. Even the United Nations’ own planes have been denied entry into Gaza for aid, a fact that raises alarm for humanitarian efforts.

In short, the South African team assembled an arsenal of information to establish Israel’s genocidal intent and acts, which when summarized in a matter of than three hours, left onlookers wondering what more would be needed to show evidence of genocide? At this stage, however, South Africa is not presently asking for the court to prove that genocide has been committed. The Court is not yet tasked with deciding whether Israel’s acts definitively constitute genocide, only if they are “plausibly genocidal,” given the evidence presented. “It is necessary to establish only ‘whether…at least some of the acts alleged…are capable of falling within the provisions of the Convention.’ ”

Should South Africa receive a favorable ruling, it asked for specific provisional measures to be taken to protect the people in Gaza and prevent further actions towards genocide. South Africa requested that Israel “suspend military operations in and against Gaza;” cease killing, cease causing bodily or mental harm, cease the prevention of birth, and other debilitating harms; prevent “expulsion and forced displacement from their homes;” and prevent interference with access to food, water, medicine, and humanitarian supplies and assistance. The provisional measures seem but a small request to ask, but perhaps what matters far more are: the politics of who is asking and who is expected to comply with the request?

Headquartered in The Hague, a city in western Netherlands, the International Court of Justice, on the face of it, would appear to be built to support countries in that region—the west—such as European countries, the United States, and their allies, though countries across the world freely participate in the United Nations and its umbrella organizations. The question of genocide committed by Israel thus poses a predicament for the Court, not in theory for the evidence is clear and damning but in practice as the Court might exhibit human-like action, like the intelligent machines so feared that once built could turn against and even implicate their makers, in this case, those very countries whose privilege it was built to protect, even while they assure the world that these organizations are for all of us.

There appears to be proof laid forth of all necessary components to proceed to hear a case, such as risk of irreparable (racial/ethnic) prejudice, urgency (in the threat of imminent death), and plausibility of rights violated (rights to exist, to return, and to not be subjected to genocide).  Still, despite overwhelming evidence of the plausibility of genocide, some people might believe that proof of jurisdiction could stifle a favorable ruling through a procedural loophole.

Thus, enters the vague area of jurisdiction. South Africa raised a dispute, with its claim of Israeli-committed genocide being disputed by Israel. South Africa also broadcasted its accusations publicly. Though ultimately it is up to the Court to decide whether South Africa can accuse Israel of genocide. But if indeed the Court dares to say that this accusation is outside of South Africa’s jurisdiction, then in whose power—if not the signatories to the UN Genocide Convention—does questioning or halting genocide lie?

If Israel does not have to answer to its crimes against humanity, then it will be clear that the International Court of Justice only serves a Rules-Based World Order in which only some countries, which are either of European origin or dominated by Europeans, are allowed to police the world. But the rest of the world has pivoted to a Laws-Based Order, in which shared laws and values are normative, such as the detestation of genocide. This unprecedented case against genocide brings forth a fork in the road for certain purported world organizations and the possibility for the continuance or dissolution of such organizations. The matter of whether the International Court of Justice is a rules-based court of the past that serves a few or a laws-based court of the future that is capable of serving everyone now lies in the judges’ (potentially blood-stained) hands.