On December 29th 2023, South Africa (SA) presented their case against Israel at the International Court of Justice (ICJ) in The Hague, in the Netherlands. The initial hearings only took place last week, on the 11th and 12th of January. South African lawyers argued that Israeli forces had killed over 23,000 Palestinians. 70% of them were believed to be women and children (that’s almost 10,000 children). They also presented many arguments for how Israel was displaying genocidal intent. This was so that the ICJ would order Israel to “immediately suspend its military operations in and against Gaza”. Israel responded by saying that their claims were ‘baseless’ and maintained that their response was self-defence. This article will present both sides of the case, to give you an understanding of the response to the crisis.
Why is South Africa getting involved?
The governing African National Congress has a long history of solidarity with the Palestinian cause. They see parallels with its own struggle against apartheid (a policy of racial segregation and discrimination). However, we must remember that they are not biased. SA openly condemned the October 7th attacks by Hamas and called for the release of the hostages.
For Palestinians, it must be relieving to see a country offer support by trying to legally condemn Israel’s actions. I think SA’s condemnation of Israel is commendable and justified. Regardless of whether they are proven to have genocidal intent, Israel’s killing of so many innocents is immoral and undefendable. Their approach is also much better than Rishi Sunak’s, who believes that SA’s case is “completely unjustified and wrong”. What is even more disappointing is that our government continues to maintain that Israel should have the right to defend itself “within the framework of international law”, even when their response is so evidently disproportionate to Hamas’s attack. It can also be said that Israel has not acted entirely within the framework of international law.
The figures speak for themselves. Israel’s death toll has not gone far beyond its original 1,400 from October the 7th. Palestine’s death toll stands at over 23,000. This should leave us asking ourselves, is self-defence compatible with the killing of so many innocent people, especially when Hamas has not launched another attack since its first?
What constitutes genocide?
The SA government argued that the Israeli government’s attack on Gaza could amount to genocide. This is defined by the UN as ‘acts committed with intent to destroy, either in part or in whole, a national, ethnical, racial or religious group’. This includes killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting conditions of life calculated to bring about a group’s physical destruction, imposing measures to prevent births and forcibly transferring children. The main features of genocide, however, is that the victims are ‘passive targets’ and there is a ‘specific intent’ to destroy, in whole or in part, that group. The 1948 Genocide Convention states that attempts to commit genocide, whether they are successful or not, are punishable.
South Africa’s argument
SA’s lawyers said that Israeli forces were often aware that the bombings would cause significant civilian casualties. Also, many of the Palestinians were killed in areas that Israel had declared to be safe zones, such as mosques, hospitals, schools and refugee camps. On top of the 23,000+ who were killed, they argued that there were 60,000 wounded Palestinians, which is even worse considering medical supplies and personnel were restricted by the blockade around Gaza. Arrests and evacuation has resulted in 85% of the population being displaced from the homes, often left without running water and electricity.
Essentially, SA lawyers said that Israel “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”. Some believe that genocide is the wrong word to describe what is happening, as Israel isn’t razing Gaza for the purpose of killing all Palestinians in the Strip (even though that’s what they appear to be doing); they are hunting down members of the terrorist group Hamas, in retaliation to an attack.
However, the Israeli military estimates that they have killed 9,000 members of Hamas. This means that out of the 23,000 killed in Gaza, the majority have been innocent civilians. Therefore, regardless of whether Israel has genocidal intent or not, what they are doing is abominable. A spokesperson for the Israeli Defence Force has also said that killing two civilians for every Hamas militant is a ‘tremendously positive’ ratio, which just goes to show the Israel’s heartlessness. It’s also important to know that just over 500 IDF soldiers have been killed.
In response to SA’s argument, Israel has denied that they are committing genocide. They instead argued that it has been ‘exercising its fundamental right to self-defence under international law’. Overall, they claimed that their attacks on Gaza were directed at Hamas soldiers, not all Palestinians. They said that the civilian casualties were the unfortunate consequences of carrying out military action in an urban area. Yoav Gallant, the defence minister, also argued that the complete blockade on Gaza City was a legitimate tactic of warfare. However, the blockade prevented water, food, electricity, gas and medical supplies from reaching civilians. This contradicts the terms of a just war.
Israel’s president, Isaac Herzog, has said that “It is an entire nation out there that is responsible.” This suggests that everyone in Gaza is complicit in Hamas’s terrorist agenda and participated in the attack on October 7th. The tragic irony is that Hamas is one political group of Palestine, which doesn’t represent the whole country’s views, whereas it is Israel’s government who is waging war on Gaza. To make things worse, Israeli lawyers switched SA’s argument back on themselves by saying that it was Hamas who had put Palestinian lives at risk by shielding its military wing inside residential areas and that it was Hamas who harboured genocidal intent towards Israel. They have also called the allegations ‘baseless’. This is alarming considering the way the IDF has razed Gaza to the ground with bombs, killing thousands indiscriminately.
Israel’s prime minister, Benjamin Netanyahu has said that “In contrast (to Hamas), the IDF is acting as morally as possible.” He claimed that they take many measures to avoid civilian casualties, including warning them of attacks. However, actions speak louder than words; over 14,000 civilians losing their lives suggests that the IDF’s measures are inadequate. Perhaps Netanyahu’s definition of morality must change if he can justify the unnecessary deaths of so many innocents with self-defence.
What does this mean for the war?
Unfortunately, the ICJ’s power is limited. Unlike the International Criminal Court, the ICJ cannot prosecute perpetrators, only morally condemn them. For example, in 2022, the ICJ ordered Russia to “immediately suspend military operations” in Ukraine, but they ignored the order. Two years later, the war is continues. Even if the ICJ were able to enforce orders, Israel would likely disregard it.
As an ex-GCSE history student, who learned about the League of Nations’ failure to enforce orders against countries, it is disappointing that we still haven’t managed to create a system that can prevent crimes against humanity. Furthermore, it is disappointing to see that the United States is continuing to use its veto power to block the UN Security Council from calling for a ceasefire. In my opinion, a ceasefire would the right thing to do, as it would minimise further loss of life and suffering.
Overall, it is unclear as to what effect South Africa’s case against Israel will have on the war. However, I think we can all agree that it is good to see a world power side with Palestine for once, not only in words but through actions. Like Dietrich Bonhoeffer said, “Silence in the face of evil is evil itself”.