Considering Gaza Through the Lens of South Africa's Genocidal Action Application
By Nóra McIntyre
On December 29, 2023, the Republic of South Africa submitted its application to the International Court of Justice (ICJ) concerning genocidal actions taken and being taken by the Israeli government and military, therein violating the 1948 Genocide Convention, of which both nations are beheld to uphold. On January 26, 2024, the ICJ issued its ruling on the case.
To understand the court’s ruling, it is first necessary to take a look at South Africa’s application and the reasoning behind it. The official document is accessible online and hyperlinked to this article. In their application, the Republic of South Africa provides a comprehensive account of actions undertaken by the State of Israel. It outlines how they meet the textbook definition of genocide. To be clear, the “State of Israel” refers to the government and military officials who are responsible for making and carrying out decisions, not all Israeli people.
South Africa’s case was submitted as an urgent call to action to protect the people of Palestine and prevent further genocide, to halt all military attacks that contribute to genocide, and to hold liable parties accountable for their violations of the Genocide Convention.
The application begins by defining the people of Palestine as a distinct national, racial, and ethnic group. It goes on to reference the October 7, 2023, Hamas attacks and to condemn acts of violence undertaken by both parties. However, the application makes it clear that no amount of violence can justify Israel’s genocide of Palestinian people. Israel has publicly portrayed their actions to be in the name of self-defense. South Africa, using other genocide cases for reference (such as past cases for Rwanda and the former Yugoslavia), makes the case that Israel’s actions are taken with the intent of exterminating Palestinian people, the textbook definition of genocide.
Before outlining Israel’s actions in the context of genocide, the application notes that recent attacks cannot be viewed in a vacuum but must instead be put into context with a long history of Israel’s denial of Palestinian self-determination via seventy-five years of apartheid, fifty-six years of occupation, and sixteen years of blockading Gaza. The US Campaign for Palestinian Rights provides comprehensive and accessible educational materials concerning this historical context.
South Africa classifies Israel’s actions using markers of genocide: those actions that cause serious bodily harm, those that cause mental harm, and those that inflict conditions of life calculated to bring about destruction. The application references Israel’s relentless military attacks in Gaza, which is one of the most densely populated places in the world, with 2.3 million people, almost half of them children. They cite expert claims that Israel’s bombings on Gaza come at an unprecedented rate in the history of modern warfare. These attacks have brought about a tremendous death toll, and many of the lives taken are children’s. There are also many more people presumed dead beneath the rubble of bombed buildings.
In addition to civilian lives, these bombings target residential buildings, hospitals, mills, land, greenhouses, water services, the construction industry, and places of worship and cultural value. This, alongside blockades barring humanitarian aid and the imposition of telecommunication blackouts, constitutes a systematic destruction of all the necessities for human life. Israel has control over access to food, water, electricity, medical supplies, etc., in Gaza and is ensuring that Palestinians are denied that access. This specific targeting of critical infrastructure and suppression of humanitarian aid denotes an intentional plan of genocide.
Moreover, the lack of these basic necessities has created a crisis of famine and epidemics in Gaza, which has been exacerbated by mass displacement. Those living in camps are facing numerous injuries. They are overcrowded and without access to water, sanitation, sewage disposal, and proper medical supplies. Professor Devi Sridhar, Chair of Global Public Health at the University of Edinburgh, predicts that if the current situation in Gaza continues as it is now, there will be more deaths from preventable illnesses and diseases than from bombs.
South Africa cites these various actions and the physical harm they have caused to Palestinian people, as well as the trauma and grief that people have been forced to endure. The application also points to Israel’s suppression of media coverage, citing that in addition to media blackouts, an alarming number of journalists have been killed. Finally, the application references public statements made by Israeli government officials that endorse an intent to eradicate Palestinian civilians, such as claims made that “there are no uninvolved civilians.”
Taking all of this context into account, South Africa made their case that Israel’s recent and ongoing actions violate the Genocide Convention. They specifically call for all the actions contributing to the genocide to cease and for all relevant parties to be brought to justice. They also call for the collection and conservation of evidence of genocide. They emphasize the need for reparations for Palestinian people– that people are granted safe return to their homes as well as protection of human rights and rebuilding of what has been destroyed. Finally, they demand a guarantee that these actions will not be repeated in the future.
Numerous nations openly backed South Africa’s case and their call for an immediate and permanent ceasefire. The U.S. administration openly opposed South Africa’s case. However, it must be noted that said administration does not represent the whole of the American people, many of whom have been calling for a ceasefire since October. Even those within the U.S. government have called upon the Biden administration to support a ceasefire. Representative Alexandria Ocasio-Cortez, along with 21 members of Congress, sent a letter to President Biden, urging him to support a ceasefire in Gaza.
Despite these ongoing calls from their peers and constituents, the Biden administration has vetoed three separate U.N. Security Draft Resolutions for a ceasefire. The U.S. has veto power in the U.N.; the latter cannot move forward if the former vetoes a resolution draft. These actions on the part of the U.S., as well as the U.S.’s military and diplomatic support of Israel, are especially significant to the ICJ ruling as they relate to complicity in genocide.
The ICJ’s January 26 ruling did not address whether or not Israel’s actions are genocidal in nature– this type of ruling could take years to conclude. Instead, this ruling determined whether or not the ICJ would implement the provisional measures requested by South Africa. The ICJ determined the plausibility that Israel undertook genocidal actions and ordered that Israel must take all measures within its power to prevent genocide.
More specifically, Israel must ensure its forces do not commit genocide, they must preserve evidence of genocide, they must prevent and punish incitement of genocide, and they must allow humanitarian assistance into Gaza. Israel has been ordered to report back to the court in one month on what they are doing to uphold the ICJ’s ruling.
The ICJ ruling also has international implications, especially for complicit nations like the U.S. The court decision presents a direct legal obligation for the international community to prevent further acts of genocide– ceasing military support to Israel is a good start.
Alongside the ICJ case, the Biden administration also faced a federal court case concerning their complicity in Israel’s genocide. The case was filed by The Center for Constitutional Rights (CCR), a civil liberties group, on behalf of Defense for Children Palestine, a human rights organization based in Gaza, as well as eight Palestinian and U.S. citizens with relatives in Gaza. The case claimed that the administration enabled the conditions for genocide through financial and military support, noting that the U.S. has been providing weapons to Israel.
Federal Judge Jeffery S. White of the U.S. District Court for the Northern District of California decided that the court could not rule on the matter since the judiciary cannot interfere with foreign policy. However, he did make the statement that the U.S. should reconsider its “unflagging support” for Israel’s attacks in Palestine. This statement indicates the validity of the claim of genocide, even if the court could not legally rule on the case. This case can also serve as a guide for future legal proceedings holding the U.S. accountable for its role in the unfolding genocide in Palestine.
Some have expressed disappointment with the ICJ’s ruling, as the court did not explicitly call for an immediate and permanent ceasefire. Others, including PCHR and Minister of International Relations and Cooperation Naledi Pandor, see an implicit call for a ceasefire in the ruling, claiming that the ICJ’s orders cannot be fully adhered to without an immediate cessation of military attacks.
Israel’s Prime Minister, Benjamin Netanyahu, rejected the ruling, claiming that Israel has a right to defend itself. This public denouncement was followed up by direct action against the ICJ’s order on Sunday, February 11th, when, during the Super Bowl, Israeli forces launched airstrikes over Rafah and threatened a ground invasion. Rafah, which is on Gaza’s southern border with Egypt, is the southernmost point of evacuation for Palestinians fleeing Israeli bombs. With this most recent attack, there is nowhere left for civilians to go.
Meanwhile, only hours after the ICJ ruling, Biden publicly announced that the U.S. would cut funding from the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA), and more than a dozen other Western nations followed suit. UNRWA is doing critical work in Gaza. They are currently the single largest provider of humanitarian assistance to Gaza, especially considering that Israel has prevented the entry of many other aid organizations.
Funding cuts come amid dubious claims that thirteen UNRWA employees participated in the October 7th Hamas attacks. Evidence of these claims has not been made public, and thirteen employees amount to only 0.0004% of the organization’s workforce. These funding cuts based on unfounded claims pose a severe threat to those in Gaza in need of humanitarian aid. UNRWA is already underfunded, and without the support of nations that have slashed their funding, their finances may run out as quickly as the next few months.
Based on Israel’s most recent attacks following the court ruling, it is clear that they do not intend to uphold the ICJ’s orders. It is the duty of every nation to take action to prevent further acts of genocide. The U.S. government has been taking actions on behalf of its people that do not reflect the interests and values of all. It stands to reason that they are held accountable and that they take into account the voices of the people they represent.
Since October, there has been extensive organization and action around the call for a ceasefire, both internationally and nationwide, including in Fairbanks. Organizations such as the Native Movement and the Alaska Peace Center have openly expressed solidarity with Palestine, called for a ceasefire, and organized actions in Fairbanks and Anchorage. Fairbanks residents have joined the call, leading protests and putting pressure on local representatives. On November 29th, around 50 Fairbanks residents visited Senator Murkowski’s office to demand a permanent ceasefire.
Contacting your representatives and pressuring the administration to reinstate UNRWA funding and support an immediate and permanent ceasefire is still possible.
An immediate and permanent ceasefire is urgently necessary to put an end to the violence and suffering inflicted on the Palestinian people. More resources are attached to the online version of this article, including educational materials and guides for action, as well as We are Not Numbers, which prioritizes human stories over statistics.
Additional Resources:
Jewish Voice for Peace: https://www.jewishvoiceforpeace.org/2023/10/07/statement23-10-07/
U.S. Campaign for Palestinian Rights: https://uscpr.org/activist-resource/palestine-101/?emci=71839da5-1074-ee11-b004-00224832eb73&emdi=a8296d24-4caa-ee11-bea1-0022482237da&ceid=11376440 Palestinian Centre for Human Rights: https://pchrgaza.org/en/
We Are Not Numbers: https://wearenotnumbers.org/
South Africa’s Application: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf#page=72