South Africa presented a scathing case of genocidal intent against the government of Israel at the International Court of Justice (ICJ) on Thursday.
During the hearing before a full court bench, South African legal eagles emphasised the intent to ‘wipe out Palestine and commit genocide’ was that of the Israeli government and military and not reflective of its Jewish citizens or the Jewish population.
In the three hours given, South African representatives and lawyers presented what appeared to be a watertight case for the provision of temporary measures.
What South Africa wants
South Africa wants the ICJ to issue a court order for provisional measures under Article 41 of the Statute of the Court that will halt the military action and allow aid into Gaza.
Senior Counsel Dr Adila Hassim began her address by highlighting that Israel had subjected Gaza to the “heaviest military conventional bombing campaigns in the history of modern warfare”.
“Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea.”
“They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall. This conduct renders essentials to life unobtainable,” Hassim told the court.
Genocidal intent
Arguably, the most challenging aspect to prove, South African Senior Council Advocate Tembeka Ngcukaitobi told the court that Israel’s military action is systematic.
Apart from South Africa, 15 United Nations Special Rapporteurs and 21 members of the United Nations Working Groups have warned that what is happening in Gaza reflects “a genocide in the making” and an overt intent to “destroy the Palestinian people under occupation”.
He argued there was an an extraordinary feature in this case: that Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.
“These statements are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza”.
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He argued that orders to decimate the Palestinian population came from the highest echelons of Israel’s government.
“Prime Minister Netanyahu, in his address to the Israeli forces on 28 October 2023 — preparing for the invasion of Gaza — urged the soldiers to “remember what Amalek has done to you”
“This refers to the Biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites “Put to death men and women, children and infants, cattle and sheep, camels and donkeys”.
Ngcukaitobi argued that the language used by Israeli politicians and army officials shows genocidal intent.
By using terms such as “human animals,” both Hamas and civilians have been condemned. “It means to create conditions of death through denial of food and water, bombs.”
SA Professor John Dugard, who presented arguments on South Africa’s jurisdiction, said South Africa and Israel have a history of suffering.
“South Africa watched the violence unfold in Gaza in horror and has repeatedly called for an end to the military action,” said Durgard.
“On 10 November in a formal diplomatic demarche, it informed Israel that while it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes, including genocide,” said Durguard.
On 17 November, South Africa referred Israel’s commission of the crime of genocide to the International Criminal Court (ICC) for “vigorous investigation. In announcing this decision, President Ramaphosa publicly expressed his abhorrence “for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place.
“South Africa repeated this accusation at a meeting of BRICS on 21 November 2023 and at an Emergency Special Session of the UN General Assembly on 12 December 2023. No response from Israel was forthcoming”.
External counsel Blinne Ni Ghralaigh KC then addressed the ICJ on the urgency and risk of irreparable harm. She said Gaza has become a place of death and despair. Areas where civilians have been sent for safety have been attacked, and Hospitals have been bombed.
Professor Vaughan Lowe KC then addressed the provisional measures sought.
He painted a picture of the scale of death and destruction that has happened and continues in real-time.
He reminded the court it had exercised its power before. Now, after 23k deaths in Gaza, SA is asking for the same for Palestine.
“In cases such as LaGrand, Avena, and Jadhav, this Court has exercised its power to order provisional measures having regard not only to the impact of provisional measures on the States Parties to a case but also to the impact on the individuals directly affected and their rights.
“It has issued Orders to restrain States from killing individuals in a manner alleged to violate international law. That is what South Africa is requesting after more than 22,000 individuals have already been killed in the siege and bombardment”.
The case continues on Friday when lawyers for the State of Israel are expected to respond.
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