Irrespective of the ruling by the International Court of Justice (ICJ) in The Hague, South Africa’s case against Israel under the Genocide Convention has significant implications both for Israel as well as the international order.
The United Nations Genocide Convention defines genocide as an act committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, not just through killing but also by other measures such as “[c]ausing serious bodily or mental harm to members of the group”; “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”; “[i]mposing measures intended to prevent births within the group”; and “[f]orcibly transferring children of the group to another group.” The term “genocide” was coined by Raphael Lemkin, a Polish Jewish lawyer, in the aftermath of the Holocaust.
Key elements of the South African case are that Israel’s attacks against the Palestinian population in Gaza show genocidal intent. They rely on what South African advocate Tembeka Ngcukaitobi described as a “clear pattern of conduct” that has laid waste to large parts of Gaza and led to the death of more than 24,000 civilians, 40 percent of whom are children, with thousands reported missing and close to 60,000 injured. The inhabitants of Gaza are also facing an acute health crisis and the territory is “on the brink of famine,” according to Cindy McCain, the head of the World Food Program. Israel has attacked or destroyed universities, hospitals, schools, churches, law courts, and even Gaza’s historical archives. As an occupying power, Israel cannot claim it is merely acting in self-defense, and even if it could, the extent of the damage done to Palestinians, the South Africans believe, cannot be justified. The “extraordinary feature” of this is the statements made by Israeli leaders indicating genocidal intent, which have been repeated by soldiers on the ground. Israel’s actions, they continue, are rooted in a belief that the enemy is not just the military wing of Hamas, but the very fabric of civilian life in Gaza, which Israel now seeks to eradicate. Nor is such language coming from the fringes of Israeli society; rather it is now at the heart of state policy.
An ICJ ruling as to whether genocide is taking place in Gaza could take years. However, what South Africa has done is to ask the ICJ to enact provisional measures to stop the bloodshed and halt the prospect of genocide.
One cannot underestimate the symbolism in the fact that it is South Africa bringing such a case. South Africa is a country that knows all too well the costs of delayed international action over human rights abuses. Its legal application makes clear that it considers the increasing violation of Palestinian rights under, what it calls, an “apartheid” system in Israel and the failure of the international community to do anything about it as enabling the carnage in Gaza and Israel’s sense of impunity.
South Africans have also not forgotten the complicity of Israel with the former apartheid regime in South Africa. A Cold War era “unspoken alliance,” to borrow from the title of Sasha Polakow-Suransky’s book on Israel’s secret ties with South Africa, was struck between a country that emerged from the Holocaust and one led by Afrikaner nationalists who enthusiastically supported Nazi Germany during World War II. This relationship was built on security cooperation spanning decades and an “ideology of minority survivalism,” as Polakow-Suransky described it, that portrayed both countries as outposts of European civilization threatened by “barbarians at the gates.” The end of the apartheid regime ended that alliance.
South Africa’s act of solidarity with Palestinians has also highlighted the rift between parts of the West and the rest. It has also reopened a window on the West’s colonial history, whereby the Holocaust against Jews mainly in Western countries can be seen as the culmination of Western violence against non-Western peoples—that is, the end-result of theories of racial superiority, biopolitics, and unchecked violence. Namibia’s response to Germany’s decision to support Israel in the ICJ case was revealing. The Namibian government reminded Germany that it committed the first genocide of the 20th century on Namibian soil, when it massacred 70,000 Herero and Nama people between 1904 and 1908. The Namibian statement continued, “Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza.”
At a time of global unrest, South Africa’s case also has repercussions for the international system put in place after World War II. If there is a perception that double standards are being applied by influential countries to protect their allies, this will undermine notions of a rules-based international order. Indeed, that was precisely the argument made by Stefan Talmon, a German legal scholar, who described Germany’s intervention on Israel’s behalf in the Gaza case as “rushed” and, in part, “politically motivated.” Such an approach, he warned, could force Berlin to adopt a more restrictive interpretation of genocidal intent than the one it adopted in another case brought before the ICJ, namely by Gambia against Myanmar. If that happened, many countries in the Global South would regard this as an example of equivocation when it comes to the value of human life.
The Gaza ICJ case has also contributed to widening the fractures over Israel’s founding mythology. What many in the West know of Israel is that it was established after the Holocaust at the end of World War II, at a time when the world sought to establish international norms that would prevent crimes of that magnitude from happening ever again. As the late British author Tony Judt argued in a 2006 piece for Ha’aretz, this led Israel for a long time to insistently emphasize “its isolation and uniqueness, its claim to be both victim and hero, [as] part of its David versus Goliath appeal.”
These characteristics helped create a sense of Israeli exceptionalism, based on the suffering of the Jewish people. This allowed its leaders to ignore what they were doing to the Palestinians, and a significant portion of the international community went along with this. The occupation and subjugation of Palestinians in Gaza, the West Bank, and Jerusalem—curfews, checkpoints, bypass roads, home demolitions, expulsions, targeted violence and assassinations, land seizures, and arbitrary arrests and detentions—were largely overlooked by influential global political actors.
Yet today the wanton destruction of Gaza and the horrific loss of life are under scrutiny by millions of people around the world, many of whom have taken to the streets demanding an immediate ceasefire. The carefully constructed image of a liberal Israel built by the survivors of one of the greatest crimes in history has fractured. Despite the horrors of the October 7 attacks, the death and devastation in Gaza have again cast a light on the stateless Palestinians as victims. The Gaza conflict has also redefined Israel’s image. Its occupation and settlement of Palestinian land, like its apartheid policies, which even Israeli legal scholars today acknowledge, are increasingly being seen as the remnants of a bygone colonial era.
Whatever the ICJ decides, Israel has been profoundly tainted by its actions in Gaza, which the South African accusation has consolidated. From now on, it is difficult to see how the world will be able to turn a blind eye to the excesses of a country that had often seemed to be judged by a different standard of behavior than others.
