Blinne Ni Ghralaigh KC makes her arguments as the Israeli legal team listen intently. Credit: Cecilia Russell/IPS

By Cecilia Russell
JOHANNESBurg, Jan 11 2024 (IPS)

Far from the mayhem, destruction, and humanitarian crisis in Gaza, the South African government argued in the International Court of Justice in the Hague that it had an obligation and a right to bring a case to halt a genocide by the Israeli government and its military.

The top legal team, composed of both South African and international human rights lawyers, spent over two and a half hours arguing that it had an obligation as a signatory to the Genocide Convention to bring this case and that the court had an obligation to accede to the provisional measures included in the application, which include an immediate suspension of its military operations against Gaza and the prevention of acts of genocide against Palestinian people.

Professor Vaughan Lowe KC summarized the arguments heard throughout the day succinctly, saying:

“South Africa believes that the publicly available evidence of the scale of the destruction resulting from the bombardment of Gaza and the deliberate restriction of food, water, medicines, or electricity available to the population of Gaza demonstrates that the Government of Israel, not Jewish people or Israeli citizens, the government of Israel, and its military are intent on destroying the Palestinians in Gaza as a group and are doing nothing to prevent or punish the actions of others who support that aim.

“And I repeat, the point is not simply that Israel is acting disproportionately. The point is that the prohibition on genocide is an absolute, peremptory rule of law. Nothing can ever justify genocide,” he told the court.

“This is not a moment for the court to sit back and be silent.”

The preceding arguments included the reasons the court should act—and act urgently.

Blinne Ni Ghralaigh KC argued that if the bombardment continued, there would be irreparable harm to the Palestinian people, where entire multigenerational families would be obliterated.

She referred to what she termed a “terrible new acronym” that emerged from the Israeli action.

“WCNSF—wounded child, no surviving family.”

Ghralaigh argued there was no merit in the argument of Israel that it was not responsible for the humanitarian crisis; she told the court that humanitarian workers stretching as far back as the Killing Fields of Cambodia had not seen a humanitarian crisis so utterly unprecedented that they had “not the words to describe it.”

She also accused the international community of erring in their duty to prevent genocide.

“Now, notwithstanding the genocide conventions and recognition of the need to rid the world of the odious scourge of genocide, the international community has repeatedly failed. It failed the people of Rwanda. It had failed the Bosnian people and the Rohingya, prompting this court to take action,” Ghralaigh argued, saying it failed again by ignoring the early warnings and the grave risk of genocide to the Palestinian people.

“The international community continues to fail the Palestinian people, despite the overt, dehumanizing genocidal rhetoric by Israeli government and military officials, matched by the Israeli army’s actions on the ground—despite the horror of the genocide against the Palestinian people being live streamed from Gaza to our mobile phones, computers, and television screens—the first genocide in history where its victims are broadcasting their own destruction in real time.”

Professor Max Du Plessis argued that South Africa had jurisdiction to bring this matter to court. Quoting the court’s findings in the case filed by The Gambia against Myanmar in 2019, he said: “All the States’ parties to the Genocide Convention have a common interest in ensuring that acts of genocide are prevented.”

This court action should not have come as a surprise. Professor John Dugard explained that the South African application followed a long series of diplomatic efforts to express concern about the Israeli action in Palestine.

“South Africa has a long history of close relations with Israel. For this reason, it did not bring the dispute immediately to the attention of the court. It was harder as Israel responded to the terrible atrocities committed against his people on the 7^th of October with an attack on Gaza that resulted in the indiscriminate killing of innocent Palestinian civilians, most of whom were women and children,” Dugard told the court. “The South African government repeatedly voiced its concerns in the Security Council and in public statements that Israel’s actions had become genocidal.”

Adila Hassim, an attorney, gave a detailed account of the effects of the bombardment on the civilian population when she informed the court that Israeli forces had killed 23,210 Palestinians during the continuous attacks over the previous three months, with 70% of them thought to be women and children. Some 7,000 Palestinians are still missing, presumed dead under the rubble.

“Palestinians in Gaza are subjected to relentless bombing, wherever they go. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families. They have been killed if they failed to evacuate in the places to which they have fled, and even while they attempted to flee along Israeli-declared safe routes,” Hassim said.

Showing photographs of mass graves, she told the court: “More than 1,800 Palestinian families in Gaza have lost multiple family members, and hundreds of multi-generational families have been wiped out with no remaining survivors. Mothers, fathers, children, siblings, grandparents, aunts, and cousins are often all killed together. This killing is nothing short of the destruction of Palestinian life. It is inflicted deliberately. No one is spared. Not even newborn babies.”

Advocate Tembeka Ngcukaitobi said the genocidal rhetoric was nurtured at the highest level of the state.

“There is 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,” he said, referring to Israeli Prime Minister Benjamin Netanyahu’s public address when he declared war on Gaza, where he warned of an unprecedented price to be paid by the enemy.

On October 28, Ngcukayitobi said Netanyahu referred to the people of Gaza as the Amalekites, a biblical reference to the retaliatory destruction of a people, men and women, children and infants with their cattle and sheep, camels, and donkeys, considered the enemies of the Israelites.

The language of genocide had not stopped there, as the Palestinian people were often referred to as “human animals.”

Other high-level politicians also made comments that confirmed the country’s genocide intent.

Israel’s Energy and Infrastructure Minister, MK Israel Katz, called for the denial of water and fuel: “As this is what will happen to a people of children: kill us and slaughter us.”

Ngcukaitobi said there was no ambiguity. “It means to create conditions of death for the Palestinian people in Gaza to die a slow death because of starvation and dehydration, or to die quickly because of a bomb attack or snipers.”

South African Justice Minister Ronald Lamola told the court this was brought in the spirit of Nelson Mandela’s humanity, and the country unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups in the taking of hostages on October 7, 2023.

Vusi Madonsela, SA Ambassador to the Netherlands, read the provisional measures that the South African government requests the court consider, including responding to the application as a matter of urgency. Among others, these include:

• that military operations are immediately ceased;
• that the State of Israel take reasonable measures within its power to prevent genocide, including desisting from actions that could bring about physical destruction;
• rescind orders of restrictions and prohibitions to prevent forced displacement and ensure access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene, sanitation and medical supplies;
• avoid public incitement;
• ensure the preservation of evidence related to allegations of acts and
• submit a report to the court on all measures taken to give effect to the order.

Israel will respond on Friday, January 12, 2024.

IPS UN Bureau Report