Hearing at the International Court of Justice, on Day 1
By-Anuradha Chenoy
South Africa presented a compelling, comprehensive detailed evidence based plaint on day one in the International Court of Justice (ICJ) hearing, to show that Israel is committing a gruesome genocide against the Palestinian people of Gaza, with the intent of wiping out Palestinian people of Gaza. South Africa made a strong appeal that provisional measures of the Genocide Convention be invoked with urgency and the ICJ pass a binding order that directs Israel to suspend all military campaigns in Gaza, since the people of Gaza are in mortal danger and no assistance can be provided to them without such suspension of military operations.
The Context
South Africa argued this case ‘expresses our very essence of humanity’. They set out the context of Israel showing briefly the genocidal activities of Israel are embedded in their 76 year history, is part of a continuum and Israel has been emboldened because of the decades of impunity they have received and never been held accountable for their actions.
Evidence to Show the Scale, Severity and Speed of Atrocities
South African lawyers unpeeled the layers of Israel’s actions in each sphere of Gaza’s people’s life to show that ‘a people are being destroyed’. They established under Article II of the Genocide Convention Israel had systematically violated the four conditions that constitute genocide. These conditions and Israel’s violations are:
(a) Killing members of a group: Gaza has been bombed by thousands of pounds of conventional bombs at un unprecedented scale, killing so far over 23,000 people of which two thirds are children and women. This amounts to ‘killing members of a group’;
(b)Causing serious bodily or mental harm: Thousands of Gazans had been maimed and afflicted by purposeful bodily and mental harm and trauma at an industrial scale by the Israeli military.
(c) Deliberate physical destruction of the infrastructure of a group: Israel’s actions are calculated to bring physical destruction of the Gazans by forced displacement, where almost 80% of people have been displaced, many of them several times; eviction and evacuation orders including to hospitals were given only 24 hours’ notice gave, over 355,000 homes have been destroyed. The evacuation and destruction is such that it unlivable and so not possible to return. These measures have been designed to bring destruction to the people, whereby UN Secretary General said ‘nowhere in Gaza is safe’. Further Israel enforced starvation, denied adequate, clean drinking water, sanitation, denied shelter to millions, prohibited access to medicines, to the extent that physicians and the World Health Organization shows that more people will die of hunger, disease and epidemics than of bombs, as Israel continues to put hurdles and deny aid and assistance to those who need it.
(d) Imposing measures intended to prevent births within the group: Israel has committed reproductive violence on Palestinian women by blocking medical assistance needed for birth, pre-natal and post-natal and emergency care.
The South African legal team backed each charge with abundant evidence, and assessments from statements and Reports from the UN Secretary General and fifteen UN Rapporteurs, and members of international organizations and non-governmental organizations, journalists and citizens of Gaza on the ground. In addition their arguments were fortified with videos and pictures from Gaza, which were minimalist, non-sensational, but gruesome nonetheless. In sum, South Africa established a pattern I Israeli conduct that qualifies Israel is committing genocide on all four counts of the International Genocide Convention, and it should be indicted as such in the ICJ.
Establishing Intent
The South African team established the intent of Israel to carry out genocide by citing the words in annotated quotes of many responsible members of the Israeli state calling for the decimating and in some cases ruthless annihilation of the Palestinians as a people. And all these officials of the Israeli government collectively and repeatedly stated from official platforms that ‘the enemy is not just the Hamas but is embedded in the fabric of Palestinian life in Gaza.’ From the Prime Minister Netanyahu who said that Gaza would pay an ‘unpreceded price’ while he invoked the biblical ‘Amalek’ that asked for the death of all men, women, children, animals etc. of the biblical enemy. The Israeli president, defense minister, members of the Knesset in different language were all quoted to show how they dehumanized Palestinian people as ‘human animals’ who should be ‘erased’ from the face of the earth. The general tone being that ‘all population in Gaza is responsible’ for the October 7 Hamas attacks and ‘all those who support Hamas must be destroyed.’ The team further showed how the Israeli Defense Forces (IDF) celebrated death and destruction of Palestinian people, homes, institutions public buildings.
So, South Africa conclusively showed that Israel has displayed the intent to destroy the Palestinians as a people, and this collective sentiment ‘has been nurtured at the highest level of the State.’ It was also established that there was in Israel genocidal speech at every level from parliament to the street, before, around and after the massacres in Gaza; It was shown that intent, speech, behaviour, policy and action combined with the celebrations after every massacre revealed Israel’s sadistic behavior. The last nail in Israel’s genocidal coffin hammered by South Africa is that there has been a systematic and purpose failure by the Israeli state to prevent these atrocities on a people.
Jurisdiction and Appeals to end Genocide
South Africa showed that Israel had rejected their appeals and UN General Assembly Resolutions to end this collective punishment, and made the forceful argument that the ICJ has the jurisdiction to adjudicate this case. Further the attack on the people of Gaza could not be considered ‘self-defense’ because it was not an attack from any outside power and no state could carry out such disproportionate collective punishment on a section of its people. Moreover if Israel was being attacked in the way they describe- requiring this level of self defence, why did they not take Hamas to any criminal court?
Appeal for Urgent Provisional Measures
South Africa has appealed that the ICJ take urgent and binding measures to order Israel to immediately stop every kind of military operation and measure. That measures to protect the Palestinian people as a group be immediately be put in place; that Israel desist doing anything under Article 2 (killing, harming, displacing, evicting, stopping medical access especially to child bearing women, as we explained above).
South Africa has called that Israel prevent the expulsion and displacement of Palestinian people and provide and assist humanitarian measures; and that starvation, epidemics be prevented, medical assistance not be blocked but delivered; and that Israel give access to aid deliveries and human rights groups for fact finding missions. They also asked that Israel report the implementation of all these measures to the ICJ on a weekly basis.
Clearly South Africa has present a legally indisputable case with abundant and inconvertible evidence. Moreover it is politically and morally sound. No matter what Israel’s defense will be, it can no longer take refuge as a victim. On the contrary, Israel can be blamed as victim denial and victim blaming, by hiding under the false pretext of antisemitism. The argument and evidence presented by South Africa, is been watched by the world over the last three months. What South Africa has done is to systematically bring it together, in a compelling, convincing and courageous way.
Now the ball is in the ICJ. Whether Israel wins or loses, they have lost this case in the eyes of the world. Now if the ICJ does not take preventive measures to stop this ongoing genocide, its own reputation and that of human rights and the rules based order will be in tatters for a long time.
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