South Africa and the World’s Conscience
The world has been witnessing, powerless or complicit, the destruction of the people of Gaza through bombing, starvation and disease for the past three months. Israel has said it will continue perhaps for another year.
South Africa has taken a step to call what is happening by its proper name: genocide, and to demand provisional measures to stop it by calling on the International Court of Justice. It is doubly dismal that the country now called to account is Israel, the Jewish State, Jews being the people whose near total genocide in Europe brought forth that very Convention on the Prevention and Punishment of the Crime of Genocide in 1948. The Court has no power to compel any state to desist from genocide, but the Court will set permanently the record of what happened. Israel is in the dock.
This is the definition of genocide according to the Convention on the Prevention of Genocide (THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1948)
DEFINITION OF GENOCIDE IN THE CONVENTION:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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;
To this must be added intent to commit genocide and this is specified in the Convention:
“The definition of Genocide is made up of two elements, the physical element — the acts committed; and the mental element — the intent. Intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group, though this may constitute a crime against humanity as set out in the Rome Statute. “
This is the definition used by the International Court of Justice in the present case.
The court case brought by South Africa against Israel is not just to condemn Israel’s acts of genocide, but also to stop Israel continuing its acts of genocide by calling for ‘provisional measures’. We reprint extracts from depositions by two lawyers for South Africa, and end with the introductory remarks by the President of the Court, followed by the case to prove intent.
This is the link to the complete record, for those who would like to read it and to check the references:
Part of the deposition of Mme Blinne Ní Ghrálaigh
31. The international community continues to fail the Palestinian people, despite the overt dehumanizing genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army’s actions on the ground; despite the horror of the genocide against the Palestinian people being livestreamed 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 in the desperate — so far vain — hope that the world might do something. Gaza represents nothing short of a “moral failure”, as described by the usually circumspect International Committee of the Red Cross. As underscored by United Nations chiefs, that failure has “repercussions not just for the people of Gaza . . . but for the generations to come who will never forget these [over] 90 days of hell and of assaults on the most basic precepts of humanity”. As stated by a United Nations spokesperson in Gaza last week, at the site of a hospital clearly marked with the symbol of the Red Crescent, where five Palestinians — including a five-day-old baby — had just been killed: “The world should be absolutely horrified. The world should be absolutely outraged . . . There is no safe space in Gaza and the world should be ashamed”.
Conclusion
32. Madam President, Members of the Court, in conclusion I share with you two photographs. The first is of a whiteboard at a hospital — in northern Gaza — one of the many Palestinian hospitals targeted, besieged and bombed by Israel over the course of the past three brutal months. The whiteboard is wiped clean of no longer possible surgical cases, leaving only a hand-written message by a Médecins Sans Frontières doctor which reads: “We did what we could. Remember us.”
33. The second photograph is of the same whiteboard, after an Israeli strike on the hospital on 21 November that killed the author of the message, Dr Mahmoud Abu Nujaila, along with two of his colleagues.
34. Just over a month later, in a powerful sermon, delivered from a church in Bethlehem on Christmas Day — the same day Israel had killed 250 Palestinians, including at least 86 people, many from the same family, massacred in a single strike on Maghazi refugee camp— Palestinian Pastor Munther Isaac addressed his congregation and the world. And he said:
“Gaza as we know it no longer exists. This is an annihilation. This is a genocide.
We will rise. We will stand up again from the midst of destruction, as we have always done as Palestinians, although this is by far maybe the biggest blow we have received.”
But he said:
“No apologies will be accepted after the genocide . . . What has been done has been done. I want you to look at the mirror and ask, ‘where was I when Gaza was going through a genocide’.”
35. South Africa is here before this Court, in the Peace Palace. It has done what it could. It is doing what it can, by initiating these proceedings, by seeking interim measures against itself as well as against Israel.
36. South Africa now respectfully and humbly calls on this honourable Court to do what is in its power to do, to indicate the provisional measures that are so urgently required to prevent further irreparable harm to the Palestinian people in Gaza, whose hopes — including for their very survival — are now vested in this Court.
37. Madame la présidente, Mesdames et Messieurs les juges, je vous remercie de votre bienveillante attention. Je vous invite à demander au professeur Lowe, KC, de prendre le podium pour décrire les mesures conservatoires revendiquées par l’Afrique du Sud de la part du peuple palestinien.
Professor Vaughan Lowe
31. [The main point] is that no matter how monstrous or appalling an attack or provocation, genocide is never a permitted response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, or otherwise, must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide.
Labour Affairs 