“For some, the promise of ‘Never Again’ for all peoples is a slogan. For Israel, it is the highest moral obligation.” Tal Becker’s opening address to the International Court of Justice (ICJ) laid bare the poignant irony of the case before the court. Israel, a state founded in the wake of the Holocaust, is accused of committing genocide against Palestinians in Gaza. The siege of the Gaza strip after the October 7th attacks has inflicted collective punishment on a majority refugee population, claiming the lives of more than 28,000 Palestinians and imposing famine on over a quarter of Gaza’s population. As the international community continually fails to secure a ceasefire, South Africa took its claims to the highest body that adjudicates inter-state disputes, doing what no other signatory to the UN Genocide Convention has done– enacting its legal obligation to prevent genocide.
On December 29th 2023, South Africa filed a lawsuit accusing Israel of committing ‘genocidal acts’ in Gaza, defined under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; or
(e) Forcibly transferring children of the group to another group.
Since Israel laid siege on Gaza on October 9th 2023, it has cut off electricity, food and fuel to the enclave, withheld humanitarian aid, carpet bombed its population, and used chemical weapons against a civilian population in a sickening violation of international humanitarian law. It has failed to secure safe zones, waging indiscriminate war on schools, hospitals and refugee camps. Gaza’s largest medical facility, Dar al-Shifa, has been described by the WHO as a “death zone”– its entrance marked by a mass grave, with only 25 staff remaining to care for the 291 patients who were unable to evacuate. Contextualized within Israel’s military blockade (2006–), Israel has long controlled the conditions of life and death in Gaza. Denying clean water, essential goods, and freedom of movement to Gaza’s population, whilst regularly shelling, bombing, and killing them in military assaults, Israel chose to inflict slow death, fostering conditions so inhumane that Gaza came to be described as both an ‘open-air prison’ and a ‘concentration camp’. Israel has undeniably committed acts (a) through (d), but to describe these acts as genocidal, South Africa must prove that they were intended to destroy Gazans, in whole or in part.
South Africa built its case for intent around rhetoric from the highest levels of the Israeli government, arguing that the Israel Defence Forces (IDF) are carrying out state orders to destroy Gaza’s population. In an address to the IDF on October 28th, 2023 and in a letter to the armed forces on November 3rd, 2023, Israeli Prime Minister Benjamin Netanyahu referenced the Hebrew Bible with the statement, “remember what Amalek did to you.” In the Book of Samuel, God commands King Saul to destroy the Amalekites, putting to death “men and women, children and infants.” Representing South Africa, Tembeka Ngcukaitobi argued that this genocidal rhetoric is not fringe extremism, but articulated state policy. Isaac Herzog, Israel’s President, holds all Gazans responsible for October 7th, while Israel’s Minister of National Security claimed that “they are all terrorists” who should be destroyed. Israel’s defence minister has referred to Gazans as “human animals” and ordered the IDF to “eliminate everything.” Other members of the Knesset, Israel’s parliament, have called for Gaza to be “erased from the face of the earth” and for a “Nakba that will overshadow the Nakba of 1948”, referencing the ethnic cleansing by Zionist militias that forcibly displaced 750,000 Palestinians from their homes in 1948. Ngcukaitobi argues that this genocidal intent is communicated to IDF soldiers on the ground, who celebrate acts of destruction and proudly share snuff videos on social media. South Africa showed videos of IDF soldiers singing and dancing, chanting “we know our motto, that there are no uninvolved, that we obey one commandment, to wipe off the seed of Amalek.” Reiterating the Prime Minister’s reference, they appear to have internalized a command for genocide. On the question of intent, Ngcukaitobi argued that “If [statements] were not intended, they would not have been made.”
In its defense, Israel denied genocidal intent, asserted its right to self defence, and argued that South Africa’s case presents a one-sided rendition of the conflict. Defending Israel, Malcolm Shaw asserted that Israel’s true intentions are found in the minutes of ministerial meetings, where Netanyahu reportedly affirmed Israel’s commitment to minimizing civilian harm and detailed strategies for facilitating humanitarian aid. Rebuking South Africa’s evidence, Shaw stated that “a soldier’s remarks… do not reflect government policy” and assured the Court that Israel punishes military misconduct within domestic courts. He contextualized Netanyahu’s biblical allusion within a larger quote that vows to destroy Hamas, but failed to provide an alternative, non-genocidal interpretation. Tal Becker argued that if any genocide occurred, it was perpetrated by Hamas on October 7th. To accuse Israel of genocide, when Hamas’ charter calls for the destruction of Israel, would dilute and pervert the very meaning of genocide, Becker claimed. The defence further criticized South Africa’s context, which framed the current war within a 75 year struggle against Israeli apartheid, and argued that only October 7th is needed to understand the existential threat that Israel faces. They asserted that Israel’s right to self defence, enshrined in both the UN Charter and International law, is paramount, and accused South Africa of misrepresenting their war. Hamas’ appropriation of civilian infrastructure and use of human shields is to blame for all civilian harm, they claim. Against widespread criticism of its role in coordinating humanitarian aid, Israel claimed that it leads coordination efforts, designates safe corridors and safe zones, and forewarns civilians of military action via pamphlets, telephone calls, and social media.
How civilians are meant to access social media given the widespread destruction of infrastructure and regular telecommunications blackouts, the defense did not say. No matter the means of communication, asking over a million people to relocate within 24 hours in one of the most densely populated regions in the world is a death sentence for many. Independent journalism has revealed that safe corridors do not exist, and that in the first six weeks of war, Israel “routinely used one of its biggest and most destructive bombs in areas it designated safe for civilians.” When faced with contradictory reports of events on the ground, one must recall that explicit targeting from the IDF has made Gaza the deadliest place on earth for journalists. Though Israel’s defence asserts that measures to minimize civilian harm are being taken, refusing to distinguish between Hamas and civilians endorses war crimes in a context where IDF soldiers enjoy impunity for crimes committed against Palestinians.
On January 26th, the Court found it plausible that Israel is committing genocidal acts in Gaza, ensuring that the case will receive a full trial. In a symbolic victory for South Africa, the Court urged Israel to take all measures within its power to prevent the commission of acts of genocide, but stopped short of ordering a ceasefire. The landmark ruling has tarnished Israel’s image and delegitimized its wartime conduct, but the provisional measures fail to take the most crucial steps that could prevent genocide from occurring. Without a ceasefire, the promise of ‘Never Again’ rings hollow. The inability of the world’s highest court to demand an end to the slaughter of Palestinians, paired with the court’s lack of enforcement power, calls into question the ability of the rules-based order to prevent human rights violations and put justice before state sovereignty.
Edited by Rafaela Paquet
Clio is in her fourth year at McGill, majoring in Honours International Development and minoring in Hispanic Studies and Social Studies of Medicine. As a staff writer for Catalyst, she most enjoys writing about social movements, political violence, Indigenous rights, and feminism.