Israel Acting With 'Genocidal Intent' Against Gaza : South Africa Tells International Court Of Justice

Senior Advocate Tembeka Ngcukaitobi, for South Africa, contended that there was a "genocidal intent" on the part of Israel. He averred that the intent to destroy Gaza has been nurtured at the highest levels of the State.

He highlighted that Israel's political leaders, military commanders, and persons holding official positions have systematically and in explicit terms declared their genocidal intent. These statements are then repeated by the soldiers on the ground in Gaza., he said.

Elucidating, he said that Israel's special genocidal intent is rooted in the belief that the enemy is not just the military wing of Hamas or Hamas generally but the Palestinian people.  

He pointed out the televised address of Israel's PM Benjamin Netanyahu of 7th October 2023, where he declared war on Gaza. Netanyahu said “Israel has started clearing out the communities that have been infiltrated by terrorists”. Israel's PM warned of an unprecedented price to be paid by the enemy.

Moving ahead with his arguments, he cited another incident where the deputy speaker of the Knesset (Israel's Parliament) called for the erasure of the Gaza Strip from the face of the earth.

Further, he referred to the statement made on 9th November by Defence Minister Yoav Gallant that Israel was imposing a complete seige on Gaza. There would be no electricity, no fuel, no water, no fuel. Everything would be closed because Israel is fighting Human animals., Gallant said.

Ngcukaitobi apprised the Court that while speaking to troops on the Gaza border, Gallant said “We will eliminate everything; we will reach all places.”

Relying on these statements, the South African counsel argued that Israel's actions were based on a clear "genocidal intent".

Jurisdiction of South Africa

One may contemplate the jurisdiction of South Africa in this case. Thus, before moving further, it may be noted that Professor John Dugard (representing South Africa) addressed the question of Jurisdiction. He said that the State parties to this genocide convention are obliged not only to desist from genocidal acts but also to prevent them. He referred to the relevant Articles, underscoring that the convention envisages a situation in which a state acting on behalf of the international community as a whole ceases the court's jurisdiction as a matter of urgency to prevent genocide.

“It (South Africa) watched with horror as Israel responded to the terrible atrocities committed against its people on October 7 with an attack on Gaza that resulted in the indiscriminate killing of innocent Palestinian civilians, most of whom were women and children.,” professor added.

Key Takeaways From Hearing

As the hearing commenced, South Africa submitted that it had recognized the ongoing Nakba (mass eviction) of the Palestinian people through Israel's colonization since 1948.

“Decades-long impunity for widespread and systematic human rights violations have emboldened Israel in its recurrence and intensification of international crimes in Palestine. At the outset, South Africa acknowledges the genocidal acts and omissions by the State of Israel inevitably form part of…illegal acts perpetrated against the Palestinian people since 1948.,” stated South Africa's ambassador to the Hague Mr Vusi Madonsela.

Moving forward, South Africa's Justice Minister Ronald Lamola in no uncertain terms asserted that South Africa unequivocally condemned the act by Hamas and other Palestinian armed groups for taking civilians as hostages on 7^th of October, 2023. However, he said that no armed attack can provide any justification for or defence against breaches of the convention.

After the minister, Senior Counsel Adela Hassam argued on genocidal conduct on Israel. She argued that Israel's actions show a systematic pattern of conduct from which genocide can be inferred.

Placing her reliance on the Gambia v. Myanmar case(in which directions were passed to Myanmar to prevent the genocide of Rohingyas), she argued that the ICJ has made it clear that it is not necessary for a court to come to a final view while deciding whether Israel's conduct constitutes Genocide. It is necessary to establish, at a prima facie level, only whether at least some of the acts alleged are capable of falling within the convention's provisions.

In January 2020, the ICJ granted Gambia's request for provisional measures to protect the Rohingya people remaining in Myanmar from Genocide.

Drawing the Court's attention to killings and destruction of Palestinian life, she said that it is inflicted deliberately and that no one is spared, not even newborn babies. “The scale of Palestinian child killing in Gaza is such that UN Chiefs have described it as a graveyard for children.”

She also spoke about imposing measures intended to prevent births within the group. In this, the counsel pointed out the that UN special Rapporteur on Violence against Women and Girls has warned (on 22 November) that the reproductive violence inflicted by Israel on Palestinian women, newborn babies, infants and children could be qualified as acts of genocide under the captioned Article. These included imposing measures intended to prevent births within a group.

“Israel is blocking the delivery of life saving aid including essential medical kit for delivering babies in circumstances where an estimated 180 women are giving birth in Gaza each day...Hundreds of multi-generational [Palestinian] families have been wiped out... this killing is nothing short of destruction of Palestinian life. It is inflicted deliberately, no-one is spared, not even new born babies"

Notably, Senior Counsel Tembeka Ngcukaitobi, apart from sharing the above-mentioned incidents also presented his arguments on the genocidal intent of Israel

At the outset, he submitted that South Africa is not alone in drawing attention to Israel's genocidal rhetoric against Palestinians in Gaza. He said that Israel's genocidal intent against the Palestinians is evident from how Israel's military attack is being conducted.

He went on to say that there is also a clear pattern of conduct.

“The targeting of family homes, civilian infrastructure….bombing, shelling and snipping of man, woman and children where they stand, the destruction of health infrastructure and the lack of access to humanitarian assistance. So much so that as we stand today 1 per cent of the Palestinian population in Gaza has been systematically disseminated and 1 in four Gazains have been injured since 7^th October”.

He asserted that these two elements are alone capable of evidencing Israel's genocidal intent in relation to the whole or part of the Palestinian population in Gaza. The ICJ was told that at least 23,000 Gazan people, 70% of them being women and children, are estimated to have been killed in the Isreal's military operations since October 2023. Some 7000 Palestinians are missing, presumed to be dead under the rubble.

During the course of a round three-hour long hearing, counsels averred that Israel has now damaged or destroyed an estimated three hundred and fifty-five thousand Palestinian homes, leaving at least half a million Palestinians with no home to return to. South Africa also showed a visual display to bolster their case.

At the same time, Israel has rejected the accusations of genocide as baseless. Now, Israel will present its defence on Friday.

The video of the full hearing can be watched here.