Genocide or self-defence: why South Africa’s case against Israel matters more than you think

“Whoever stays until the end will tell the story. We did what we could. *Remember us* — 20/10/2023.”

Those words are a blue scrawl on a hospital whiteboard, once reserved for the week’s surgery plan. Except for that message, the rows and columns are empty — a careful schedule upended by a flood of the injured and dying.

The man who penned that message is dead just one month later — killed in an Israeli air strike on Al-Awda Hospital in northern Gaza. It remains there still, a chilling epitaph for Médecins Sans Frontières (MSF) doctor Mahmoud Abu Nujaila.

Nujaila’s words are one poignant marker in South Africa’s submission to the International Court of Justice (ICJ) to have Israel’s actions in Palestine declared acts of genocide and, more immediately, to secure “provisional measures” to, among others, prevent further mass civilian casualties.

The numbers are clinical:

• More than 23,210 named Palestinians are dead, 70% of them women and children, according to the Palestinian health authority. Each day, 48 mothers and 117 children are killed, on current averages;
• 7,780 people are missing, “presumed dead under the rubble”, with 55,000-odd wounded and maimed. Each day, 10 children need to have one or both legs amputated;
• Each day, on average, 3,900 homes in Gaza are destroyed. As a result, about 1.9-million of the 2.3-million residents have been displaced;
• More than 90% of the population are at crisis levels of hunger; and
• Six thousand bombs were deployed by Israel each week in the first weeks of the war.

Those statistics feature prominently in South Africa’s 84-page application. It stands as a chronicle of horror, with details gleaned from sources that run from local government, to the more reliable evidence provided by UN agencies, relief organisations and NGOs.

It’s a case that’s put South Africa front and centre on the world stage.

Sithembile Mbete, a senior lecturer of political studies and international relations at the University of Pretoria, tells the FM that it reinforces the impression that South Africa is a country that punches above its weight and is a leader of the Global South.

But while this changes the game for South Africa’s international relations, it’s not clear if it will be for the better, or worse.

Soon after South Africa’s application was lodged, the US — South Africa’s third-largest trading partner, accounting for R360bn in trade last year — lambasted the move. John Kirby, the US National Security Council spokesperson, described the case against Israel as “meritless” and “completely without any basis in fact whatsoever”. The state department later released a more measured response, but it nonetheless reiterates that South Africa’s allegations are unfounded.

So what will be the net effect, positive or negative, of this case on South Africa’s global relationships? And how will this recalibrate the country’s international standing?

While this changes the game for South Africa’s international relations, it’s not clear if it will be for the better, or worse

One day in October

To answer this, we need to go back to the genesis of this case.

At 6.30am on October 7, rockets started raining down on Israel from Gaza — a precursor to an invasion by air, land and sea by the militant arm of Hamas, the organisation that governs the Palestinian territory. It was, by any barometer, a heinous and unprecedented attack that left 1,200 dead, upwards of 2,000 injured and 240 taken hostage.

Israel’s response was swift and brutal. Within hours it had scrambled fighter jets, and Prime Minister Benjamin Netanyahu had called up army reserves, declaring the country “at war”. Within two days, Israel had cut all electricity, food, water and fuel to Gaza as it prepared for a ground invasion.

Today, 100 days on, Gaza has been decimated. It’s “a different colour from space, a different texture”, Corey Scher, who specialises in mapping damage in wartime, told news service AP. Buildings have been flattened, infrastructure destroyed and its 2.3-million people squeezed into an ever-smaller sliver of land. 

It is this devastation that prompted South Africa to lodge its application with the ICJ. And which saw all eyes turn to The Hague last week as South Africa and Israel’s legal teams argued the need for provisional measures.

As Mia Swart, visiting professor at Wits University’s law school, explains it, provisional measures are like an interim order in domestic law.

“It’s simply a chance for the court to interfere on an extraordinarily urgent basis and say: ‘Stop committing military actions that kill people, or stop military action that has genocidal effects, or do not destroy any evidence that could potentially be used as evidence that you committed genocide,’” she says.

It’s wholly different from the case on the merits, where the court will decide whether Israel is guilty of genocide — a process that could take years. And the burden of proof is much lower for provisional measures: South Africa doesn’t have to prove genocidal acts have taken place; it needs to show acts that could plausibly fall under the Convention on the Prevention and Punishment of the Crime of Genocide.

It is this case that South Africa’s legal team — senior counsel Adila Hassim, Tembeka Ngcukaitobi and Max du Plessis, professor John Dugard, and king’s counsel Blinne Ní Ghrálaigh and Vaughan Lowe — argued before the ICJ last Thursday.

Chronicle of horror

Though South Africa’s case for the provisional measures is much broader, at base it hinged on two arguments: first, that Israel’s actions could plausibly be considered genocidal and second, that those acts were performed with intent that could be said to be genocidal in nature.

In its case, South Africa drew attention to the relentless bombing of Palestinians. “They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families,” Hassim told the court. “They have been killed if they failed to evacuate, in the places to which they fled, and even while they attempted to flee along Israeli declared safe routes.”

Beyond the sheer number of Palestinians killed — a death rate higher than that of any other major 21st-century conflict, according to aid agency Oxfam — the details are grim.

As South Africa argued, more than 1,800 Palestinian families have lost multiple family members, with entire multigenerational families wiped out; reports suggest summary executions, and unarmed civilians shot.

The territory has not only become a “graveyard for children”, it has spawned a whole new acronym: WCNSF — “wounded child, no surviving family”.

South Africa argued that running parallel to the military campaign is one of dehumanisation. Palestinians — including children — are reportedly rounded up, “arrested, blindfolded, forced to undress and remain outside in the cold weather before being forced on to trucks and taken to unknown locations”.

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group.

— Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide

—  Genocide defined

There’s mass expulsion of the population — 85% is thought to have been displaced — in an area already measuring just 40km by about 10km. There have been reports of shelling on evacuation routes and “safe” zones; refugee camps have been bombed.

As UN secretary-general António Guterres wrote in a letter to the Security Council in December, “nowhere is safe in Gaza”.

For many of the displaced, there’s no going home: about 60% of houses in Gaza have been destroyed. Then there’s deprivation of food and water, shelter, sanitation and medical supplies — and the near impossibility of UN agencies reaching those most in need.

Hunger is so rife that the World Health Organisation has warned that “at least one in four households are facing ‘catastrophic conditions’”. Israel throttles water supply, and displaced children have just 1.5l-2l of water a day — far below the “emergency threshold” of 15l a day, according to the World Food Programme.

There are reports of children undergoing amputations and pregnant women having caesarean sections without anaesthetic, or undergoing unnecessary hysterectomies, to save their lives. Of infants found decomposing in their cots after hospital personnel were forcibly evacuated.

Looked at in its entirety, South Africa says, the pattern of conduct is illustrative of an intent to commit genocide.

Its submission cites reports of incendiary statements by Israeli politicians. Netanyahu, for example, is reported speaking of “the children of light and the children of darkness … humanity and the law of the jungle”; his defence minister, Yoav Gallant, is quoted as referring to “human animals” in a YouTube video.

Gallant has also talked of the military being “released of all restraints”, “every restriction” removed. And such words would seem to have filtered down to the rank and file, given various clips Ngcukaitobi showed — “snuff films” recorded by soldiers themselves.

On December 7, for instance, a video emerged of Israeli soldiers dancing and singing “We know our motto, ‘there are no uninvolved’”. Another shows soldiers detonating 50 houses, singing “May Gaza be erased”.

‘Cherry-picking facts’

The day of Hamas’s attack, October 7, was a religious holiday in Israel — the end of the annual cycle of reading the Torah. It’s meant to be a day of celebration. Instead, it was one of “wholesale massacre mutilation, rape and abduction”, said Tal Becker, legal adviser to Israel’s foreign affairs ministry.

In court on Friday, Becker told a tale of death, maiming, torture, sexual violence and kidnapping. He read a message a man sent his sister before he and his family burnt to death in their safe room; told of a survivor of the Nova music festival telling of violent sexual mutilation and rape; mentioned a video in which a militant throws a grenade into a safe room, killing the father and wounding the two sons before he “casually opens the fridge, takes out a bottle, and drinks”.

He played a recording of a militant using a dead woman’s phone to call his father, telling him excitedly about killing 10 people “with my own hands”.

Israel cites the president of the European Commission saying: “There was no limit to the blood Hamas wanted to spill. They went home to home. They burnt people alive. Why? Because they were Jews.”

Israel’s powerful statement of events provided the framing of its case at the ICJ — and its argument of self-defence. The central pillar of its case: the country’s actions are justified because it was defending itself not only from the original assault by Hamas, but because that assault is ongoing. And, it argues, it is Hamas that is engaging in genocidal actions, not Israel.

Any provisional measure that puts in place a ceasefire would leave it vulnerable, it argued. It would, says Andre Thomashausen, professor emeritus of international law at Unisa, deny the country’s right “to defend itself against the continually proclaimed objective of Hamas to destroy Israel”.

So how legitimate an argument is this?

Not very, says Mbete. She points out that self-defence is not an unlimited right, whereas the right not to be subjected to acts of genocide is. “You can’t respond to an attack by decimating the people in their entirety,” she says.

Swart adds that in international law, you cannot invoke self-defence if you’re in belligerent occupation of another country. “You’re trapping people and then you’re bombing them? In self-defence?”

When it comes to the arguments around potentially genocidal acts, Israel argues that South Africa doesn’t prove intent to destroy. It accuses South Africa of ignoring or misrepresenting “aspects of reality on the ground” — its restriction of targets to military personnel, acting in a proportionate matter, mitigating civilian harm and facilitating humanitarian assistance. 

And yet Israel seems to do exactly that in places, providing little by way of verification for its claims, other than that of its own Israeli Defence Forces and its military organisation charged with implementing policy in Gaza, the Co-ordination of Government Activities in the Territories (Cogat).

Israel claims, for example, that it is delivering aid to Gaza through Cogat, and has provided assurances that there is no limit to the amount of food, water and medical supplies that can cross into Gaza. It also claims it allows fuel to enter Gaza for essential services.

Yet the claim is undermined by Israel’s defence minister, who initially said he had ordered “a complete siege on the Gaza Strip — there will be no electricity, no food, no fuel”, before relenting under international pressure. And it flies in the face of a UN report of a mission to deliver urgent medical supplies, which was denied entry five times by Israeli authorities.

Equally, Israel’s claim that it hasn’t bombed hospitals in Gaza has been thoroughly debunked by an investigation by CNN. The news network pointed out that 14 were directly hit, and Israel routinely used one of its most destructive bombs near hospitals. Israel did give two weeks’ warning to civilians to evacuate ahead of its ground assault, yet reports have revealed how it has also bombed refugee camps, and shelled demarcated safe routes.

Israel argues that Hamas’s military strategy is to embed itself with civilians, making a high rate of casualties inevitable. It argues that Hamas turns houses, schools, mosques, hospitals and UN facilities into military operation centres.

Though Hamas denies this, independent anecdotal evidence suggests Hamas has used civilians as shields. The UN previously found weapons had been discovered at empty schools and rockets may have been fired from them. But the extent of deliberate intent to use human shields is unclear, especially in the context of urban warfare in densely populated areas where military and civilians overlap.

Israel makes other claims that must be subjected to rigorous, independent investigation. For example, it asserts that Hamas fired missiles from Al-Quds Hospital and hid weapons inside incubators at Kamal Adwan Hospital. These claims have not been independently verified and remain disputed, including by the Palestine Red Crescent Society.

When it comes to statements of incitement, Israel argues it is disingenuous of South Africa to cherry-pick the parts which bolster its case, take statements out of context and present them only in part. And, it says, South Africa included statements by low-level politicians with little power over policy who have subsequently been chastised,  because what they said didn’t reflect government policy.

Yet some of those statements came from Netanyahu and Gallant — members of the “war cabinet” — while Cogat deputy head Col Yogev Bar-Sheshet said any returnees would find “scorched earth. No houses, no agriculture, no nothing.”

It is true that there are statements pointing to minimising harm to civilians, and fighting Hamas only rather than the Palestinian people. But they stand against statements to the contrary.

In any event, Ngcukaitobi argued that these sentiments aren’t open to “neutral interpretation, or after-the-fact rationalisations and reinterpretations … If the statements were not intended, they would not have been made.”

It’s hard to see which way the court will go. All it needs to find is that there was sufficient intent to justify a plausible claim of genocidal acts, to allow for its jurisdiction under the genocide convention.

Finally, there’s the dry legal matter of procedure and jurisdiction. In Israel’s view, the case falls beyond the remit of the court because South Africa did not proactively engage with Israel — requests for meetings went unanswered, and diplomatic notes were not answered timeously. South Africa’s position is that it tried to engage with Israel, but that a dispute was in any case clear from the two countries’ stated positions.

This is not an immaterial point; if there’s no dispute between the parties, the court has no jurisdiction to hear the matter. If the court finds South Africa was procedurally at fault, it would undermine the country’s case.

It’s the central pillar of its case: the country’s actions are justified because it was defending itself not only from the original assault by Hamas, but because that assault is ongoing

Weighing the odds

So what are the chances of the court finding in South Africa’s favour?

When it comes to at least some of the provisional measures, Swart believes South Africa has a “fair chance of success”: there’s the carefully crafted application, a strong legal team, a near flawless performance, “and … the fact that it’s undeniable that thousands of civilians in Gaza are dying — have died since October 7”.

And while she says the ICJ is traditionally conservative and not always strong on genocide, it did accept jurisdiction and grant provisional measures recently, when Gambia put in a similar application regarding Myanmar’s treatment of the Rohingya ethnic group. 

Thomashausen, on the other hand, is adamant that South Africa simply has no case.

“It’s legally not possible because wild and armed attacks or acts of aggression are continuing,” he says. “And [they’re] continuing because Hamas continues to hold … hostages, using them as human shields for the Hamas command. That fact perpetuates the attack of October 7 … So Israel continues to have a right to defend itself.”

He concedes that the court may grant provisional measures to end hostilities, but these will be conditional on, say, the return of the hostages. But that would involve Hamas accepting a ruling it had no input in — as a nonstate actor it is not a party to the genocide convention and doesn’t fall within the court’s jurisdiction — and which South Africa would have no power to enforce. It’s a nonstarter, in other words.

If South Africa succeeds, Swart believes the wording of the provisional measures will be careful, with the court perhaps avoiding reference to the word “genocide” and referring instead to something along the lines of “civilians should not be killed”, or order “the immediate cessation of military activities”.

“There’s a lot they can do, short of even referring to genocide,” she says.

Still, even provisional measures would carry the taint of genocide. As Mbete says, the case was brought under the genocide convention — so any finding of provisional measures would imply there’s a plausible chance of such a thing.

Such a finding, you’d think, might heap sufficient opprobrium on Israel to force a change in direction, at least to mitigate the reputational fallout.

On this point, the US is watching with furrowed brow. If, in the larger, final case, the ICJ finds that acts of genocide have indeed happened, the US’s military support of Israel could place it in contravention of the genocide convention. But even at this early stage, a negative finding against Israel wouldn’t be “a good look”, says Mbete.

Not that Israel seems overly concerned with its reputation. “If your image matters to you, you don’t go and bomb a very large number of children and civilians in [front of] the eyes of the whole world,” says Swart.

This means there’s little chance of Israel abiding by an adverse finding — a point underscored by Netanyahu on Saturday, when he said in a televised address: “No-one will stop us, not The Hague, not the axis of evil, and not anyone else.”

And in any case, why change course if you still have the support of some of the world’s major powers — including the US, the UK and Germany?

Still, Mbete believes the mere fact of this case being brought will have longer-term repercussions. “In the press, the main sense is that the moral authority of the West writ large has been completely shattered by this case,” she says.

US President Joe Biden may feel he’s in an invidious position, trapped between increasing opposition to the war from young voters in an election year, and a powerful Jewish lobby and a bloc of evangelical Christian voters who align strongly with Israel. This may have spurred his efforts to “work behind the scenes” with Netanyahu to turn down the heat.

It may be a push to say South Africa is so influential that it has stopped the bombing, but in the wake of the application — and in the context of Biden’s backroom manoeuvring — Israel has started scaling back its military effort.

In the press, the main sense is that the moral authority of the West writ large has been completely shattered by this case

—  Sithembile Mbete

Punching above its weight

Whichever way it goes, Siphamandla Zondi, professor of international relations at the University of Johannesburg, says this case boosts South Africa’s international standing.

“It says South Africa is a responsible global citizen that takes an interest in world affairs. It endears itself to those who appreciate the use of international law to resolve disputes, but it antagonises those who do not want Israel to be subjected to scrutiny.”

Mbete believes the action has restored some of the moral leadership lost during the Jacob Zuma years. She argues that the resolutions of the UN General Assembly and Security Council show that most of the world is against Israel’s bombardment of Gaza — and most of the world opposes the occupation, having recognised Palestine as a state.

Still, it’s a stand taken at a potentially steep cost.

It’s not as though President Cyril Ramaphosa’s government was on the best footing before this. There’s that small matter of Ukraine, where South Africa studiously steered clear of referring to abuses by Russia, the invading power, in the face of evidence suggestive of immense war crimes. In this context, South Africa’s claim against Israel reeks of deep hypocrisy.

To be fair, South Africa is not unique: Mbete points out that few countries are consistent in their policy on crimes against humanity — not the US, the UK or France.

For Swart, however, it’s “definitely problematic that we have, in a sense, cherry-picked which conflicts we get involved in, which instances of mass killing we condemn. I think there’s a need for consistency.”

Still, this case does offer hope that South Africa will take its responsibilities seriously in future, she says.

Analysts tell the FM they don’t see South Africa’s relations with Europe taking a knock. But of more concern is South Africa’s relationship with the US — a staunch supporter of Israel.

Isabel Bosman, a researcher at the South African Institute of International Affairs, says relations with the US “reached a fragile state of repair” last year. There was the Lady R incident, and wildly divergent opinions on Ukraine. Kirby’s lacerating attack only underscored this cooling of relations.

The question, says Mbete, is “could South Africa be punished for this action — directly or through exclusion?”

She reckons there may be a counterpunch from some in the US Congress — and blowback from some American companies, which may stop doing business with South Africa — but she doesn’t expect too much to change. “Ultimately, South Africa is still too important, just regionally and currently with what’s happening in the Red Sea — you’ve got hundreds of ships that need to go around the South African coast.”

Bosman adds that South Africa remains a strategic ally for the US, mainly because of its connection to the Brics countries.

The US has downplayed the philosophical schism.

David Feldmann, spokesperson at the embassy in South Africa, tells the FM that “South Africa is a sovereign country that has the right to make its own decisions about how to engage with Israel and the international community. We have an open and candid dialogue with South African officials on all manner of bilateral and global issues.”

This includes issues “where we have different perspectives”, he says.

More clear is that South Africa’s relations with Israel are at a nadir — and that’s unlikely to change any time soon, says Mbete. And it won’t help if Israel fails to implement provisional measures, should the ICJ find against it.

South Africa’s department of international relations & co-operation, headed by Naledi Pandor, hadn’t responded to the FM’s questions at the time of going to print. Nor did the Israeli embassy respond to requests for comment.

A PR coup, but does it matter?

South Africa went to the ICJ because it offers a mechanism to halt the conflict — but that assumes Israel would comply with a ruling. The court has no teeth to enforce its rulings. And Israel has become so insular that it sees no problem with its image, so a ruling by the ICJ isn’t likely to force an about-turn, says Swart.

That leaves the UN Security Council — the ultimate enforcement body — if momentum from the case continues, says Bosman. 

Thomashausen suggests it’s possible, if everyone agrees to “think outside the box” — and if Israel is willing to play ball — that the Security Council could resolve to place a peacekeeping mission in Gaza, with countries such as South Africa contributing troops. It would, he believes, stop the shelling and open room for dialogue.

Swart is sceptical, given Israel’s stance.

Which means the best bet is to hope the Security Council adopts a resolution demanding adherence to the court’s directives, says Bosman.

But the US would likely use its veto over any such resolution — so the language could be so watered down as to make it all but meaningless.

In recent months, the US blocked a resolution on a ceasefire in Gaza, before abstaining from a vote (which allowed the motion to go ahead). By then, however, the resolution no longer demanded an outright ceasefire, but called on everyone to “create the conditions for a sustainable cessation of hostilities”, while allowing unfettered humanitarian access.

So, while much may depend on the Security Council, more arguably depends on the US.

All of which is cold comfort for the civilians caught in the crossfire. And the journalists, aid workers and medics — including MSF doctor Mahmoud Abu Nujaila — who have lost their lives. 

His poignant plea — “We did what we could. Remember us” — was included in a letter sent by MSF president Christos Christou to the Security Council in December.

“When the guns fall silent and the true scale of devastation is revealed,” Christou wrote, “will the council and its members be able to say the same?”