If you have been following along, then you know that Israel is committing a genocide in Gaza according to the consensus of scholars of genocide and state crime. I covered this in a previous article and I just released, along with Double Down News, a viral video summarizing the argument that Israel is committing genocide. Efforts to stop this genocide and hold those responsible liable whether before the International Criminal Court or United Nations have been frozen, sabotaged by the US, or largely inefficient at changing the reality on the ground, allowing Israel to continue its genocidal campaign through uninterrupted bombardment day in and day out for over 90 days now, as all of Gaza continues to be starved, dehydrated, displaced, and lacking the most basic supplies or services as a matter of intentional Israeli policy, not an inadvertant byproduct of conflict. Enter South Africa. On December 28, South Africa filed suit before the International Court of Justice arguing that Israel, through its actions in Gaza, is acting in violation of its obligations under the Genocide Convention. In particular, South Africa argues that “[t]he acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group, that being the part of the Palestinian group in the Gaza Strip.” It’s an 84 page application. I read it so you don’t have to but I really encourage you do. Either way, allow me to address some of the key points made by South Africa before getting into Israel’s reaction and the implications of this move. Key takeaways Historical context: The request contains descriptions of the Nakba critically noting that “80% of Palestinians in Gaza are refugees — and their descendants — from towns and villages in what is now the State of Israel, expelled or forced to flee during the mass displacement of over 750,000 Palestinians or ‘Nakba’ during the establishment of the State of Israel. The Nakba and the mass displacement associated with it therefore features prominently in the history and consciousness of Palestinians in Gaza, as it does for the wider Palestinian people.” (p. 12) Gaza is occupied: The request affirms that “Gaza is still considered by the international community to be under belligerent occupation by Israel” despite the latter’s “disengagement” in 2005 because of continued Israeli control over the Gazan airspace, territorial waters, land crossings, water, electricity, electromagnetic sphere and civilian infrastructure as well as key governmental functions, such as the management of the Palestinian population registry for Gaza. (p. 14) Features of Israel’s 16 year siege of Gaza: The request details the devastating consequences of Israel’s blockade imposed in response to Hamas’ electoral victory since 2006, including restrictions on freedom of movement fragmenting Palestinians in Gaza from Palestinians in the occupied West Bank, the restriction of food imports into Gaza “in accordance with calories consumed per person, to limit the transfers of food to a ‘humanitarian minimum’, without causing hunger or malnutrition” a practice Norman Finkelstein has referred to as Israel’s “starvation+” diet for Palestinians in Gaza (p. 25). The request further recalls that the 16 year Israeli siege of Gaza also included the implementation of a buffer zone restricting access to 24% of Gaza’s agricultural land for farming and the prevention of fishing beyond a certain distance from the shore of Gaza (p. 15). The request provides additional invaluable context on the situation in Gaza pre-October 7, 2023. For example, UNCTAD infamously warned in 2015 that “the restrictive measures imposed by Israel risked making Gaza uninhabitable by 2020”. Further, the request notes that the United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 described Gaza in 2020 as ‘an impoverished ghetto with a decimated economy and a collapsing social service system” and in 2022 as having undergone “a multi-decade process of development, deindustrialization, resulting in a 45% unemployment rate and a 60% poverty rate, with 80% of the population dependent on some form of international assistance” with Palestinians in Gaza having “endured four highly assymetrical wars with Israel over the past 13 years, with enormous loss of civilian life and immense property destruction.” (p. 16) Pattern of Israeli impunity re crimes against Palestinian civilians in Gaza: South Africa builds a strong case of Israel as a pariah that has consistently targeted Gazan civilians, their infrastructure, and land in an “excessive” manner (pp. 17-18) which is undoing foundational principles of international law like distinction and proportionality (p. 19). The request cites a UN report from 2009 reminding that with respect to Operation Cast Lead “statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy…” and further concluding that “the plan [was] directed, at least in part, at a different target: the people of Gaza as a whole…” “to make the daily process of living, and dignified living, more difficult for the civilian population…” (p. 20). The request notes that the same 2009 report “excluded” the possibility that hospitals were being used by Palestinian armed groups (p. 19) and confirmed instead Israel’s practice of “using Palestinians as human shields” which is prohibited under international humanitarian law (p. 19). Side note: I wish to point out that while Israel continues to hurl accusations, in this current moment, of Hamas operating from hospitals and using Palestinians as “human shields” it fails to mention that these accusations were investigated previously by the UN and proven to be false (with even the Israeli Supreme Court finding in 2005 that it is Israel which has unlawfully used Palestinians as human shields — every accusation is an admission vibes). Similarly, a fact finding commission established pursuant to the Human Rights Council report dealing with Operation Protective Edge in 2014 found that “the [IOF] carried out destructions that were not required by military necessity” and “the vast scale of destruction may have been adopted as tactics of war” (pp. 22-23). Finally, a UN report from 2020 cited to in the request noted that “the actions of Israel towards the protected population of Gaza amount to collective punishment under international law. The two million Palestinians of Gaza are not responsible for the deeds of Hamas and other militant groups, yet they have endured a substantial share of the punishment, intentionally so.” (p. 23)
Palestinians in the occupied West Bank suffer repeated systemic human rights violations living under Israel’s apartheid regime:South Africa paints a similarly dark picture of life in the occupied West Bank for 2.7 million Palestinians who suffer from “discriminatory laws, policies, and practices” constituting an “apartheid regime”. There’s reference to, inter alia, the (i) segregating Wall (which the ICJ is well aware of, having already decided in its advisory opinion in 2004 that such wall was illegal, ordering its dismantlement, an order blatantly ignored by Israel), (ii) discriminatory land zoning and planning polices, (iii) punitive and administrative house demolitions, (iv) violent Israeli army incursions into Palestinian homes, (v) arbitrary arrests and indefinitely renewable administrative detention (a.k.a. kidnapping Palestinian civilians including children without charge or trial) and (vi) a dual legal system subjecting Palestinians to military law and Jewish Israelis to civil law for the same crime. The request notes that this apartheid reality is also exacerbated by settler violence “overtly supported by Israeli politicians”. The result is that 2023 was the deadliest year on record for Palestinians since 2005 including for Palestinian children in the West Bank with at least 38 Palestinian children having been killed prior to October 7 and an additional 77 Palestinian children having been killed since October 7. On the matter of arbitrary arrests, the request notes that since October 7, Israel “detained more than 3,000 Palestinians from the West Bank and East Jerusalem, including for social media posts relating to the situation in Gaza” and “significantly increased the number of Palestinians held in administrative detention, without charge or trial, to 2070.” While all eyes were on the attacks against Gaza’s healthcare system, the request reminds that since October 7, Israel has carried out 236 attacks on healthcare in the occupied West Bank. (pp. 27-28) Israel oversees an apartheid regime: While Israel’s apartheid regime has existed since the inception of the state, the analysis has gained mainstream acceptance in the human rights community with the publication of reports by Btselem, Human Rights Watch, and Amnesty International in 2021 and 2022 thoroughly describing this apartheid system. That being said, Israel has not yet been held accountable for subjecting Palestinians to an apartheid regime despite the fact that apartheid is a crime against humanity under international law. South Africa’s request does not mince words when it notes that this genocide is being carried out “in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity”. (p. 2) Facts and law: The request contains robust factual and legal analysis of violations of the Genocide Convention by Israel since October 7, 2023 including committing genocide and failing to prevent or punish: genocide, direct and public incitement to genocide, conspiracy to commit genocide, and complicity in genocide. The detailed factual account of Israel’s actions in Gaza since October 7 is based in “significant part on statements and reports by United Nations chiefs and bodies and [NGOs], as well as eye-witneess accounts from Gaza — including from Palestinian journalists on the ground — in circumstances where Israel continues to restrict access to Gaza by international journalists, investigators and fact-finding teams.” (p. 4) As for the law, the request points to three of the five genocidal acts under the Genocide Convention, i.e. (i) killing Palestinians in Gaza (including children), (ii) causing serious bodily and mental harm to Palestinians in Gaza, and (iii) inflicting conditions of life intended to bring about their destruction as a group. As to the two remaining legal bases for genocide under the Genocide Convention, the request does not mention “forcibly transferring children of the group to another group” although there have been reports of Palestinian children being kidnapped by Israeli soldiers from Gaza and taken to Israel (a post on this is forthcoming). The request does mention the taking of measures to prevent Palestinian birth but not as a own standalone legal basis. Rather, it is discussed as evidence of the third legal basis for genocide — inflicting conditions of life intended to bring about their destruction as a group — along with four other policies applied by Israel to Palestinians in Gaza in this moment, i.e. (a) expulsions from homes and mass displacement, alongside the large-scale destruction of homes and residential areas; (b) deprivation of access to adequate food and water; (c) deprivation of access to adequate medical care; (d) deprivation of access to adequate shelter, clothes, hygiene and sanitation; and (d) the destruction of the life of the Palestinian people in Gaza. It is important to note that only one of the five actions is needed to make a showing of genocide in addition to genocidal intent. Here, according to South Africa, there are three genocidal actions taking place.
Provisional measures and other urgent relief: In addition to asking for an expedited hearing to hear its request for the indication of provisional measures, South Africa has asked, pursuant to Article 74(4) of the Rules of the Court, for the President of the Court to call upon Israel to immediately halt all military attacks that constitute or give rise to violations of the Genocide Convention pending the holding of such hearing on provisional measures (p. 3). The court has not yet responded to this request, but the hearing on provisional measures is scheduled for January 11-12 in the Hague. It will be broadcast live on UN TV or the website of the Court and I will be tuning in and live tweeting on X (under @thegazangirl) and Instagram (under @gazangirl). Its request for provisional measures seeks, inter alia, an order that (1) Israel immediately suspend its military operations in and against Gaza; (2) Israel ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above; (3) South Africa and Israel each, in accordance with their obligations under Genocide Convention, in relation to the Palestinian people in Gaza, take all reasonable measures within their power to prevent genocide; and (4) Israel in accordance with its obligations Genocide Convention, in relation to the Palestinian people as a group, protected by the Genocide Convention, desist from the commission of any acts of killing, causing serious bodily or mental harm, inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and measures intended to prevent births within the group. It also asks for Israel to be required to desist from and rescind relevant orders or restrictions relating to the (i) expulsion and forced displacement; (ii) deprivation of access to adequate food and water; (iii) deprivation of access to humanitarian assistance like adequate fuel, shelter, clothes, hygiene and sanitation; '(iv) deprivation of access to medical supplies and assistance; and (v) the destruction of Palestinian life in Gaza. South Africa also calls on the Court to require Israel to take steps to preserve evidence. Genocidal intent: South Africa refers to statements of Israeli State officials’ specific intent to commit and persist in genocidal acts or fail to prevent them as “significant and overt since October 2023” and clearly explains that “[t]hose statements of intent — when combined with the level of killing, maiming, displacement and destruction on the ground, together with the siege — evidence an unfolding and continuing genocide”. (p. 59) In particular, South Africa cites to over 60 statements of genocidal intent, including those statements expressed at the highest levels of government (pp. 59-67). It is notable that the true scope of genocidal statements made in Israeli government, military, media, and society at large is so much more than what is even in this request (which already seems like quite a lot). Law 4 Palestine has developed a database tracking over 500 statements of genocidal intent made by Israeli officials, media, and more since October 7, 2023. It is also noteworthy that since the filing of this request, statements evidencing genocidal intent continue to be made by Israeli officials and public figures, like for example this former Israeli foreign ministry official arguing for the “immediate destruction” of UNRWA on January 4, 2024. Duty to prevent Genocide: One of the key features of the Genocide Convention is that its focus is not only on seeking accountability for Genocide once it has happened, but the Convention actually imposes on signatories an obligation to prevent Genocide before it happens. Therefore, a signatory to the Convention can violate it obligations not only by committing genocide, acts of complicity in genocide and incitement to genocide but also by failing to take steps to prevent genocide. It is on this basis that South Africa brought this petition, i.e. by arguing that it has a positive obligation to take steps to prevent genocide under the Convention. South Africa’s comments on the International Criminal Court: Despite confirming that the Office of the Prosecutor at the International Criminal Court “has an ongoing investigation with jurisdiction over Palestine” including over “current events in Gaza and also current events in the West Bank”, South Africa pointed out that “the Prosecutor has not given any more recent indication as to the state of any investigation in relation to the Situation in the State of Palestine, including in response to the request of the 17 November 2023 by South Africa and other States that the ICC investigate inter alia the crime of genocide”. (p. 24) While I would have liked South Africa to make a stronger statement against the ICC’s failure in this moment, it chose to restrain itself.
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