South Africa tells UN top court Israel committing genocide in Gaza, as landmark case begins

The two-day hearing is the public side of a landmark case, one of the most significant to be heard in an international court and which goes to the heart of one of the world’s most intractable conflicts.

South Africa is seeking binding preliminary orders to compel Israel to stop its military campaign in Gaza, in which more than 23,000 people have died, according to the health ministry which is run by Hamas.

“Genocides are never declared in advance, but this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies as a plausible claim of genocidal acts,” South African lawyer Adila Hassim told the judges and audience in the packed, ornate room of the Peace Palace in The Hague.

“Nothing will stop the suffering except an order from this court,” she said.

Israel, however, says it is battling a fierce enemy in the Gaza Strip that carried out the deadliest attack on its territory — killing more than 1200 people, — since its creation in 1948. Israel says it is following international law and does its utmost to avoid harm to civilians. It blames Hamas for the high toll, saying its enemy embeds in residential areas.

South Africa turns a deaf ear to such arguments, insisting Israel committed genocide by design.

“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said lawyer Tembeka Ngcukaitobi.

“What state would admit to a genocidal intent? Yet the distinctive feature of this case has not been the silence as such, but the reiteration and repetition of genocidal speech throughout every sphere of the state in Israel,” he said.

Ahead of the proceedings, hundreds of pro-Israeli protesters marched close to the courthouse with banners saying “Bring them home”, referring to the hostages held by Hamas since it attacked Israel on October 7.

One of the Israeli protesters outside the court was Michael Nevy, 42, whose brother was kidnapped by Hamas.

“People are talking about what Israel is doing, but Hamas is committing crime against humanity every day,” he said.

At a separate demonstration nearby, pro-Palestinians protesters waved flags saying “End Israeli Apartheid Free Palestine” and chanting “Netanyahu criminal” and “Ceasefire now”.

The dispute strikes at the heart of Israel’s national identity as a Jewish state created in the aftermath of the Nazi genocide in the Holocaust, during which 6 million Jews were murdered.

It also evokes issues central to South Africa’s own identity: its governing party, the African National Congress, has long compared Israel’s policies in Gaza and the West Bank to its own history under the apartheid regime of white minority rule, which restricted most Blacks to “homelands” before ending in 1994.

In a sign of how seriously Israel is taking the accusation, although it normally considers UN and international tribunals unfair and biased, it has sent a strong legal team to defend its military operation launched in the aftermath of the Hamas attacks.

Israel often boycotts international tribunals or UN investigations, saying they are unfair and biased.

A decision on the request for so-called “provisional measures” will likely take weeks. The case is likely to last years.

While Israel has vehemently denied the allegations, it is unclear whether it will heed any order from the court to halt operations.

If it doesn’t, it could face UN sanctions, although those may be blocked by a US veto.

Israel’s lawyers will address the court on Friday.

South Africa immediately sought to broaden the case beyond the narrow confines of the ongoing Israel-Hamas war.

“The violence and the destruction in Palestine and Israel did not begin on October 7, 2023. The Palestinians have experienced systematic oppression and violence for the last 76 years,” said South African Justice Minister Ronald Lamola.

South Africa argued that Israel’s actions in Gaza are an inevitable part of its history since it declared independence.

Israeli Prime Minister Benjamin Netanyahu issued a video statement last night (today AEDT) defending his country’s actions and insisted they had nothing to do with genocide.

“Israel has no intention of permanently occupying Gaza or displacing its civilian population,” he said.

“Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law.”

He said the Israeli military is “doing its utmost to minimise civilian casualties, while Hamas is doing its utmost to maximise them by using Palestinian civilians as human shields”.

About two-thirds of the dead in Gaza are women and children, health officials say. The death toll does not distinguish between combatants and civilians.

“Mothers, fathers, children, siblings, grandparents, aunts, cousins are often all killed together. This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No one is spared. Not even newborn babies,” said Hassim.

Finding food, water, medicine and working bathrooms has become a daily struggle for Palestinians living in Gaza. Last week, the UN humanitarian chief called Gaza “uninhabitable” and said, “People are facing the highest levels of food insecurity ever recorded (and) famine is around the corner”.

Israel itself has always focused attention on the October 7 attacks themselves, when Hamas fighters stormed through several communities in Israel and killed some 1200 people, mainly civilians. They abducted around 250 others, nearly half of whom have been released.

US Secretary of State Antony Blinken dismissed the case as “meritless” during a visit to Tel Aviv on Tuesday.

“It is particularly galling, given that those who are attacking Israel — Hamas, Hezbollah, the Houthis, as well as their supporter Iran — continue to call for the annihilation of Israel and the mass murder of Jews,” he said.

The world court, which rules on disputes between nations, has never judged a country to be responsible for genocide. The closest it came was in 2007 when it ruled that Serbia “violated the obligation to prevent genocide” in the July 1995 massacre by Bosnian Serb forces of more than 8000 Muslim men and boys in the Bosnian enclave of Srebrenica.

The International Criminal Court, based a few kilometres away in The Hague, prosecutes individuals for war crimes, crimes against humanity and genocide.

The case revolves around the genocide convention that was drawn up in 1948 in the aftermath of World War II and the murder of 6 million Jews in the Holocaust. Both Israel and South Africa are signatories.

Israel is back on the International Court of Justice’s docket next month, when hearings open into a UN request for a non-binding advisory opinion on the legality of Israeli policies in the West Bank and east Jerusalem.