AS THE Israel-Gaza conflict reached its 100th day, the International Court of Justice (ICJ) in The Hague began to hear South Africa’s claim against Israel. Referring to “acts and omissions by Israel . . . [which] are genocidal in character”, South Africa’s lawyers expressed concern over Israel’s alleged “intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, and ethnical group”.
The legal case refers to Israel’s prevention and refusal of medical aid, food, and water to Gaza, and its constant bombing of the Palestinian population. Because of these acts, South Africa argues that Israel is guilty of a failure “to prevent genocide and . . . [of] committing genocide in manifest violation of the genocide convention”.
The 1948 Convention on the Crime of Genocide, so close in time to the European Holocaust of countless Jews at the hands of Nazi Germany, defined the act of genocide as an attempt to “destroy a national, ethnic, racial or religious group, in whole or in part”. As a signatory to the convention, South Africa argues that it has a moral duty to act.
Last week, at the Foreign Affairs Select Committee, the Foreign Secretary, Lord Cameron, was pressed for a view on the situation, on whether Israel had committed war crimes or had breached international law. He avoided a specific answer. He expressed the hope that Israel would allow more aid into Gaza and restore water supplies. He did not support South Africa’s legal challenge: “I don’t think that is helpful. I don’t agree with it. I don’t think it’s right.”
The Prime Minister has described South Africa’s case as “completely unjustified and wrong”, even though the country’s stated aim is that Israel should “immediately suspend its military operations in and against Gaza”, under an ICJ order if necessary. It is uncertain how legally binding or enforceable any order would be, and whether Israel would comply.
An Irish barrister, Blinne Ní Ghrálaigh KC, argued at the ICJ that “entire multi-generational families will be obliterated, and yet more Palestinian children will become WCNSF — wounded child, no surviving family — the terrible new acronym borne out of Israel’s genocidal assault.”
Another lawyer for the South African team, Adila Hassim, described the killing as “nothing short of destruction of Palestinian life”.
AlamyPalestinians gather outside the morgue of the European Gaza Hospital, in Khan Younis, Gaza, on Tuesday, to mourn relatives killed in the Israeli bombardment
In a counter-argument, on behalf of Hamas’s Israeli hostages in Gaza, Tal Becker, a lawyer from Israel’s foreign ministry, said: “Under the guise of the allegation against Israel of genocide, this court is asked to call for an end to operations against the ongoing attacks of an organisation that pursues an actual genocidal agenda.”
Two British nationals are still among the hostages, it has been confirmed.
A British barrister, Professor Malcolm Shaw KC, said in Israel’s defence that “South Africa has given succour and support to Hamas, at least.” Forty-one countries — the United States and the UK among them — have proscribed Hamas as a terrorist organisation. Early in the conflict, the BBC was criticised for not making this explicit.
Professor Shaw also sought to contextualise comments made by the Israeli Prime Minister, Benjamin Netanyahu, regarded by his critics as inflammatory. Professor Shaw said that they had been “made in the immediate aftermath of an event which severely traumatised Israel and which cannot be seen as demanding genocide”.
The geopolitical scene has become more complicated as a result of South Africa’s move. The US (News, 12 January) and Germany are supporting Israel’s case. Others, such as Bangladesh, are lining up behind South Africa. The President of Namibia, Hage Geingob, has condemned German “inability to draw lessons from its horrific history”: a possible allusion to the Herero-Namaqua genocide perpetrated by German forces against Namibians a century ago, from 1904 to 1908. China is calling for a two-state solution, which emerged on Sunday when its Foreign Minister, Wang Yi, met Egypt’s chief diplomat, Sameh Shoukry, in Cairo, over the weekend.
Also on Sunday, the Gaza Health Ministry, which is run by Hamas, reported that, since 7 October, 23,968 Palestinians had been killed, and another 60,582 had been injured through Israeli strikes on Gaza in the same time period. The same day, the UN agency for Palestinian refugees spoke of the displacement of nearly two million Palestinians, and declared on social media: “The massive destruction, displacement, hunger & loss of last 100 days are staining our shared humanity.”
In the 75 years since it was first enshrined, the Genocide Convention has rarely been applied. Provisional measures were issued to Myanmar in 2021, when The Gambia brought a claim on behalf of the Rohingya. Before that, the ICJ considered the 1995 genocide in Bosnia and Herzegovina by Serbia. Ukraine brought a claim against Russia in February 2022, which is ongoing.
In the cases of Russia and Israel, a definitive ICJ ruling could be years away. In the mean time, the court could make “provisional measures” in pursuit of a ceasefire or other steps to limit damage, destruction, and the further risk of genocide.