South Africa (SA) hopes to secure a binding order from the International Court of Justice (ICJ) this week to force the United Nations (UN) and its Security Council to stop weapons supplies to Israel as part of a genocide preventive measure.
The bombs from the United States (US), United Kingdom (UK) and Germany that continue raining on Gaza have destroyed most of the city, and by 8 January had killed 22 835 people, according to Gaza’s health ministry.
About 85% of the displaced population is from the 355 000 destroyed homes of 2,3 million people, according to SA’s application to the ICJ.
By 29 October 2023, it was estimated that 6 000 bombs per week had been dropped on the tiny enclave, changing the colour of the territory from ochre to the grey of rubble when viewed from space, according to an AP report.
UN special rapporteurs say Gaza is now in an “apocalyptic situation”.
Armed with files of recorded alleged genocide rhetoric by senior Israeli leaders, South Africa will seek to prove genocidal intent.
Israel’s government spokesperson, Eylon Levy, says: “The state of Israel will appear before the International Court of Justice at the Hague to dispel South Africa’s absurd blood libel.
“How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro bono for anti-Jewish racists. We have no doubt that after the Jewish state brings to justice the perpetrators of the bloodiest massacre of Jews since the Holocaust, history will judge South Africa for abetting the modern heirs of the Nazis.”
‘Blood libel’ is a historic term accusing Jewish people falsely of stealing children for their blood to justify attacks on them.
South Africa’s 84-page application is used to layer a case for a rising genocide, which requires an immediate cessation to stop it from becoming a full-scale 21st-century genocide.
It does not have to prove actual genocide at this point, because it seeks a preservation or interim order ahead of an entire argument in terms of the Genocide Convention of 1948.
But it continues, as advocate Adila Hassim, who has led many of South Africa’s most revolutionary cases, yesterday argued.
“ Acts and omissions by Israel are genocidal in character, as they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”
South Africa will sketch a context of 75 years of apartheid for Palestinians, a 56-year occupation and a 16-year Gaza blockade, which have created an open-air prison for its people.
At the same time, South Africa’s team will repeat that “South Africa condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian groups.”
The most important part of the two-hour argument is likely to be the proposition that Israel has shown genocidal intent.
This is likely to be argued by international law expert John Dugard or senior counsel Max du Plessis.
To do this, the lawyers have compiled statements made by prime minister Benjamin Netanyahu, president Isaac Herzog, the Israeli cabinet, Knesset members, and military leaders.
Their own words dehumanise Palestinians, threaten their permanent removal and suggest extinction, the team will argue.
Levy says Hamas had genocidal intent when it perpetrated an act of genocide on Israeli soil on 7 October.
“It was an act of genocide perpetrated with Nazi-like cruelty and [a] Nazi-like efficiency, in the service of Nazi-like ideology,” he has said.
In their arguments, Du Plessis and Dugard are also likely to list how many UN agencies have warned about the likelihood of genocide.
South Africa itself has warned nine times of looming genocide in speeches at the UN and other fora, and in its note verbale to the Israeli ambassador Eli Belotserkovsky, who has since been recalled to Tel Aviv.
It argues that Israel has failed to prevent, has committed, has conspired to commit, directed and publicly incited to commit and attempted to commit genocide.
It summarises the actions as the killing of Palestinians, the forced evacuations out of 85% of their land, widespread hunger, dehydration and starvation, medical needs, and imposing measures to prevent Palestinian births.
“Israel has perpetrated and is perpetrating genocidal acts. Nowhere is safe in Gaza,” the application says.
The papers say the killing of more than 100 journalists and the regular shuttering of communication networks is deliberate.
Israel allows only embedded journalists who travel with the Israeli Defence Forces (IDF) and has forbidden fact-finding missions or journalists who want to report independently, SA says.
In two days of arguments, where each state party will have only two hours, the requested finding is limited by time and urgency.
“At this stage of the proceedings, however, the court is not called upon to determine definitely whether the rights which South Africa seeks to protect exist; it need only decide whether it is satisfied that the rights asserted by South Africa on the merits are at least plausible in a possible interpretation of the (Genocide) Convention,” the application reads.
With a low bar and a mountain of evidence, numerous commentators believe SA has an excellent chance of securing measures to shield Palestinians from the worst of the ongoing violence.
“It is sufficient that the obligation of South Africa to act to prevent genocide . . . and to prevent and punish genocide and related prohibited acts under the convention be ‘plausible’.”
As the team concludes the hearing and makes the plea, they will ask the 15 judges on the bench to make the order that Israel immediately suspend military operations in Gaza, that it stop the killings of the Palestinian group, that it end conditions of life calculated to bring about its physical destruction in whole or part, and that it stop imposing measures to prevent Palestinian births.
In addition, the siege, which has caused hunger and hardship, must end to open up food, fuel, water and other humanitarian assistance.
The team will also shape an argument that what is under way is the destruction of a way of Palestinian life through the razing of the built environment, the destruction of libraries and cultural heritage, and the killings of many academics who are the crucible of history and culture.
It may use the example of Shuja’iyya, which the application describes as “a suburb of Gaza City, once home to approximately 110 000 Palestinians [which] appears to now be a vast wasteland, entirely flattened as far as the eye can see.
“Its shops, schools, vibrant marketplaces, family homes, doctors, clinics, historic streets and the Ibn Uthman Mosque, and everything that once sustained Palestinian life there, has been damaged or destroyed, along with so many of its people.”
The SA team will ask the judges to submit a report on their request within a week to give effect to the order.
At the time of writing, SA’s case was supported by the Organisation of Islamic Cooperation countries (58 countries, including Nigeria, Qatar, Saudi Arabia, the United Arab Emirates, Iran, Türkiye, Indonesia, Jordan and Palestine).
Bolivia and Colombia have also signed on.
Nine hundred civil society movements, unions and support groups have revealed a global petition to pressure their governments to sign on.
HOW IT WILL WORK
The application by SA and Israel’s response will be heard today and on tomorrow for two hours for each country.
The director general of SA’s department of international relations and cooperation, Zane Dangor, in an interview with Daily Maverick, said an outcome to preserve life and stop violence is expected in 10 days to two weeks.
SA is fielding a multinational eight-person team led by senior counsel Adila Hassim and Tembeka Ngcukaitobi, advised by international lawyer John Dugard and by Max du Plessis, both of whom are senior counsel and who spend most of their professional time in The Hague.
In addition, the government has drafted two international lawyers, the Irish lawyer Blinne Ní Ghrálaigh KC and Vaughan Lowe KC.
Ní Ghrálaigh has developed the arguments with SA for months, and she will close arguments tomorrow.
She has worked on genocide cases in Croatia and Serbia.
On 2 January Levy stated that: “On 7 October, Hamas perpetrated an act of genocide on Israeli soil. Its death squads executed a campaign of systematic extermination, with a clear mission to murder as many Israelis as possible – as sadistically as possible.
“It was an act of genocide perpetrated with Nazi-like cruelty and Nazi-like efficiency in the service of a Nazi-like ideology. The only reason Hamas didn’t succeed in committing further genocide is because our security forces stopped them.
“Hamas openly makes clear its genocidal intent. On 24 October, Hamas official Ghazi Hamad told Lebanese television: ‘We must teach Israel a lesson, and we will do this again and again. The Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth’.
“He goes on: ‘Nobody should blame us for the things we do. On 7 October, 10 October, 1 000 000 October – everything we do is justified.’
“Hamas is hell-bent on the genocide of Jews, and it is hell-bent on sacrificing its civilians for that cause. We are fighting to remove the threat of annihilation, bring back the hostages trapped in the terror dungeons, and thwart Hamas’ systematic abuse of its civilian population.
“The state of Israel emphatically condemns South Africa’s decision to play advocate for the devil and make itself criminally complicit with the perpetrators of the 7 October massacre.
“On 8 October, South Africa openly aligned itself with the Hamas rapist regime when it blamed Israel for Hamas’ violation of the ceasefire and covered up Hamas’ crimes against humanity. It is now aiding and abetting that machinery of genocide.
“Collaborating with the perpetrators of genocide is, alas, not new to South Africa, which backed Omar al-Bashir after he was indicted for genocide in Darfur.
“While the Hamas rapist regime does everything to maximise civilian casualties with its despicable human shield strategy, Israel is employing measures unprecedented in the history of warfare to minimise civilian casualties . . .
“The Hamas rapist regime bears the full moral responsibility for all casualties in this war that it started and is waging from inside and underneath hospitals, schools, mosques, homes and UN facilities.
“In giving political and legal cover to the 7 October massacre and the Hamas human shield strategy, South Africa has made itself criminally complicit with Hamas’ campaign of genocide against our people. It shares culpability for the tragic loss of human life . . .
“We assure South Africa’s leaders: History will judge you, and it will judge you without mercy.” – Daily Maverick
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