Picture: Oupa Mokoena /Independent Newspapers / Taken on October 20, 2023 – The ANC leads a march in solidarity with the people of Palestine to Protest at the Israeli embassy on October 20. Hundreds of thousands of South Africans have marched in support of Palestinians since Israel launched its war on Gaza on Sunday, October 8, 2023. The noble effort of South Africa – an application to the ICJ invoking the Geneva Convention on Israel’s atrocities in Gaza – to help the people of Palestine, is a commendable historical gesture that should be applauded by those across the world committed to law, justice, and peace, the writer says.
By Kim Heller
In her adaption of In the Bleak Midwinter, the 1872 poem by Christina Rosetti, UK-based political activist and author, Deborah Maccoby wrote: “In the bleak midwinter, starving kids make moan; Israel strikes like iron, Biden’s like a stone. Governments watch silently – How can they allow Genocide in Gaza in the here and now? How can we stop it, Set two peoples free? Governments enable this catastrophe. Where is there a wise man who could do his part? Tell the world to stop it with its heart.”
Gaza is bleeding. In real-time. Worldwide, while ordinary people are marching in solidarity with Palestine, governments across the globe have yet to take strong enough action to end the waves of attacks against innocent citizens in Gaza.
As December drew to a close, South Africa, a long-standing and loyal supporter of Palestine, filed an application with the International Court of Justice, invoking the Geneva Convention with respect to acts committed by Israel against Gaza.
In addition, South Africa has called for “provisional measures” which could potentially halter Israel’s attacks on Gaza, until there has been a hearing of this application by the International Court of Justice.
Civil rights lawyer, Robert Herbst, who has served as an independent investigator and prosecutor for the Special Court for Sierra Leone provided an in-depth analysis of the application. In his analysis published in Mondoweiss, Herbst writes that “South Africa’s Application is 84 pages long and devastating – to the State of Israel, to its Jewish political and military leaders and personnel committing the genocidal acts and speaking openly of their genocidal intent, to those in Israel, America, and Europe standing so firmly in support of them, and to the Jewish people in whose name Israel purports to act”.
He continues, “The Application lays out these genocidal acts and statements in horrifying detail, after noting the contextual background so often missing in diplomatic and mainstream media discussion of the Gaza war.”
The document painstakingly sets out how Israel has directed attacks against civilians and religious, cultural, and medical buildings, and how ordinary citizens have been denied access to basic services and provisions, such as clean water and subjected to torture and starvation. South Africa’s application refers to how Gazans have been subject to severe bodily and mental harm and killed “en masse”. It provides a chilling account of how Israel was inflicting “conditions of life” calculated to bring about the physical destruction of the people of Gaza.
South Africa argues that these acts by Israel meets the definition of genocide as defined in the Genocide Convention of 1948, as they are “intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group”. These genocidal acts include the killing of large numbers of children, destruction and expulsion from homes, and deprivation of access to adequate food, water, medical care, shelter, hygiene, and sanitation.
The Geneva based Euro-Med Human Rights Monitor reports extensive devastation over the period from October 7 to December 27, 2023, including the damaging of 305 schools, completely destroying 65,600 homes, and partially destroying another 177,200 homes and displacing 1,920,000 people.
The potency of the South African application lies not only in the compelling and comprehensive account of the current suffering of the people of Gaza, as a result of these most recent attacks by Israel, but in its highly descriptive factual account of the historical oppression of the apartheid-like conditions under which the people have Gaza have endured historically.
This includes severe land usage and mobility restrictions, deprivation of water and electricity as well as structurally imposed poverty and ongoing violent attacks by Israel’s military forces. The inhumanely high level of child casualties is not only a feature of the current conflict, but part and parcel of the historical violence against Gaza. According to the Euro-Med Human Rights Monitor, over the period from October 7 to December 27, 2023, 29,124 people have been killed or presumed dead, of which 11,422 are children.
The Application reads: “Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.”
South Africa is seeking urgent action by the ICJ and has pinned its hopes on ICJ declaring that Israel has failed to comply with and therefore violated the Genocide Convention. The outcome sought is to end genocidal acts and ensure that all those responsible be held fully accountable. The Application also speaks to the need for the return of those displaced or abducted, reparation, repair, and reconstruction.
Unsurprisingly Israel has reacted with condemnation, arguing that the claims made by South Africa are baseless, and decry South Africa for co-operating with “a terrorist organisation”, namely Hamas. Denying and defying all the deathly evidence, the Israel’s official response is that “its army directs its military efforts only against Hamas”. This in direct contradiction to several previous utterances from high-ranking Israeli government officials about sparing no-one, eliminating everything in Gaza, and erasing Gaza from the face of the earth.
On January 1, 2024, Israel declared that it would be challenging the application. It has stated that its immediate focus is on “thwarting an interim order that could force a ceasefire in Gaza”. This is hardly the talk of a nation seeking peace.
Lawyer Robert Herbst weighs in on whether this application will have any impact. He argues that as a member of the United Nations, Israel has an obligation to comply with the judgment of the ICJ in any “contentious case” to which it is a party, “and that if it fails to do so, this would be escalated to the Security Council”. He notes that the US has protected Israel in the Security Council with its veto before and may well do so again. He however points out that Israel may face a binding judgment under the Court’s “Contentious Case” jurisdiction, “especially if the Judgment is unanimous and as well documented and reasoned as South Africa’s Application”.
The ICJ, unlike the ICC is empowered to arbitrate conflicts between states. While its decisions are legally binding, history has proved that these can be difficult to enforce and implement.
With Israel often conducting itself above international law, South Africa has a real battle ahead. It is a moral battle as much as it is a legal one. In the end, the application may fail. This does not detract from the noble effort of South Africa to help the people of Palestine. It is a commendable historical gesture that should be applauded by those across the world committed to law, justice, and peace.
Kim Heller is a political analyst and author of ‘No White Lies: Black Politics and White Power in South Africa’.
This article was written exclusively for The African. To republish, see terms and conditions.
