South Africa vs Israel: A genocide trial

First, the definition of ‘genocide’

Origin story: The word was first used in 1944 by Polish lawyer Raphäel Lemkin in his book on German occupation during World War II. The Greek prefix ‘genos’ means race or tribe—and the Latin suffix ‘cide’ denotes killing. It was coined to capture the systematic massacre of Jews by the Nazis during the Holocaust.

The UN convention: In 1946, the General Assembly first recognised genocide as a separate crime under international law. It was formally codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This Convention has been ratified by 153 states as of 2022—including South Africa and Israel. 

The definition: According to 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.” This includes: 

• Killing members of the group;
• Causing 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;
• Imposing measures intended to prevent births within the group;
• Forcibly transferring children of the group to another group.

The core elements: The listed actions in themselves are not sufficient to prove genocide. The ‘mental intent’ is necessary, according to the UN:

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. It is this special intent, or dolus specialis, that makes the crime of genocide so unique.

Also this: The actions must be aimed at a group—not individuals. So not all massacres constitute genocide:

This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

Point to note: As per the Convention, any state can file charges of genocide against another state—without being a part of the conflict. That’s why South Africa can file a case—even if the Palestinians cannot. Past examples include the 2019 case brought by Gambia against Myanmar—for crimes committed against the Rohingya. 

Say hello to the International Court of Justice

The jurisdiction: The ICJ is the only judicial body set out in the UN charter. However, it is limited to cases brought against states—not individuals. It should not be confused with the International Criminal Court—which can prosecute individuals. Example: issuing an arrest warrant for Vladimir Putin—for war crimes committed in Ukraine.

The judges: The Court is made up of 15 judges—each drawn from a separate country—for a period of nine years. They are chosen by holding simultaneous elections in the General Assembly and Security Council. The current panel consists of judges from France, Slovakia, Somalia and, yes, India. Joan E Donoghue of the United States leads the ICJ—alongside Vice President Kirill Gevorgian of Russia.

Point to note: Countries that are party to the case also nominate an ad hoc judge. Israel has picked Aharon Barak—former head of its Supreme Court—and strong supporter of the war. South Africa chose Justice Dikgang Moseneke—a former deputy chief justice. In general, however, the judges are expected to be neutral—and not toe their country’s political line.

The ‘Special Agents’: That’s the name given to the legal team representing each side. They usually include top notch lawyers—from around the world. Israel’s team is led by British lawyer Malcolm Shaw while an international law professor—John Dugard—will lead the South African side.

The broader alliances: Most of the Global South is in South Africa’s corner—including the 57-member Organization of Islamic Countries and the Arab League. Other prominent countries are Colombia, Brazil, Malaysia, Namibia etc. Israel’s staunchest supporter is, of course, the United States. National security spokesperson John Kirby has called the case “meritless, counterproductive, and completely without any basis.” India hasn’t expressed any opinion as of now. Interestingly enough, neither has the European Union.

Point to note: President Biden is separately being sued by 77 global groups in a US court for failing to prevent an “unfolding genocide.”

South Africa’s case for genocide

The two-day hearing kicked off yesterday—with South Africa going first. Israel gets its turn today. Here’s what South Africa has alleged in its application—and in court. 

One: The Israeli offensive on Gaza is not aimed at eliminating Hamas—but to eliminate Palestinians. The evidence:

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.

It’s worth listening to the point being laid out here—whether you agree or not:

Two: There is clear evidence of “genocidal intent”—provided by Israelis themselves:

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 soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.

Three: Palestinians were targeted as a group not as individuals—and that is why Israel cut off life-saving supplies to the entire Gaza strip:

Tembeka Ngcukaitobi… said after the Hamas attack that Israel would let “no electricity, no food, no water, no fuel” into Gaza — were tantamount to a directive to physically destroy Gazans and “communicated state policy”

 

“This admits of no ambiguity,” Mr. Ngcukaitobi said. “It means to create conditions of death of the Palestinian people in Gaza, to die a slow death due to starvation and dehydration or to die quickly because of a bomb attack or sniper, but to die nevertheless.”

Four: Israel cannot claim self-defence because Gaza is not an independent state that attacked it. It is territory occupied by Israel—for decades. Its actions have to be seen in the context of a longer history:

What is happening in Gaza now… entails destructive acts perpetrated by an occupying power, Israel, that has subjected the Palestinian people to an oppressive and prolonged violation of their rights to self-determination for more than half a century. Those violations occur in a world where Israel, for years, regarded itself as beyond and above the law.

Point to note: South Africa also addressed why it has not brought any charges against Hamas: “Hamas is not a state and cannot be a party to the Genocide Convention and cannot be a party to these proceedings.”

The big Q: Does any of this matter?

Let’s be real. Israel is unlikely to suffer any great consequences—even if it is found guilty. ICJ decisions take years to be delivered. There has been no ruling in the Rohingya case—which was filed in 2019.  

But, but, but: South Africa’s endgame is not to convict Israel of genocide. It wants to make a strong enough case to get a quick provisional ruling—ordering Israel to stop its offensive. As its lawyers emphasised, this is the first time the world is witnessing an alleged genocide in “real time”—being streamed directly to our phones:

While the ICJ itself has no mechanism to enforce such an order, it will greatly amp up international pressure on Tel Aviv to restrain itself: “It's an institution that enforces its judgments through public pressure, because it looks very bad for a country to defy an order from the ICJ because it's very prestigious and authoritative.” And as one legal expert points out, “By defending itself in court… Israel is accepting its legitimacy—and that ‘will make it more difficult to defy the court’s orders later on’.”

As for the Palestinians: They were singing the South African anthem in the West Bank. At the very least, they feel seen:

The bottomline: Perhaps the greatest impact of the case will be on how Israelis view themselves. Ordinary Israelis are astonished that they—as Jews—are being charged with the ultimate crime against humanity. There’s an entire school of thought that the Holocaust was a special case, a product of “a special sick strain of antisemitism deep inside” inside Germany. Therefore, Jews could never commit genocide. But as Dahlia Scheindlin writes Haaretz, this also allows Israelis to let themselves off the hook for whatever is done in Gaza:

We can't imagine ourselves like that. We Jews, many feel, are nothing at all like the genocidaires of Rwanda, the Myanmar military or Bosnian-Serb joint criminal enterprise. Israelis like to say that their enemies embrace death, but "we love life." But apparently, truly anyone can commit terrible things. Recognizing that means recognizing our own humanity—and that of others.

Reading list

United Nations website offers a detailed breakdown of what constitutes genocide according to the 1948 Convention. Vox reports on why South Africa chose to bring charges against Israel—while TIME offers a broader overview. Andalu Agency and Al Jazeera take a detailed look at all the key players of the trial. Associated Press, Al Jazeera and Indian Express highlight the arguments made by South Africa at the trial. Bruno Maçães in TIME pens a must-read essay explaining why the conflict in Gaza spells the end of US “hypocrisy”—and its power. For the Israeli/US perspective, read the Washington Post and New York Times. A related good read: The Intercept has an interesting report on how media coverage in major American publications heavily favoured Israel.