South Africa's Genocide Case Against Israel Is Serious

Israel denounces it. The U.S. dismisses it. The International Court of Justice is hearing it. The rest of us can't flinch from reading it. 

Edited by Sam Thielman

I DIDN'T THINK I WAS GOING TO READ the entire 84-page genocide filing that South Africa last month provided to the International Court of Justice (ICJ) about Israel's conduct over the past 100 days in Gaza. But then the Biden administration denounced it as frivolous. 

"We believe the submission against Israel to the International Court of Justice distracts the world" from efforts to aid Gaza, Secretary of State Antony Blinken said on Tuesday. "Moreover, the charge of genocide is meritless. It's particularly galling given that those who are attacking Israel—Hamas, Hezbollah, the Houthis, as well as their supporter, Iran—continue to openly call for the annihilation of Israel and the mass murder of Jews."

You will notice that is not a refutation. That is a dismissal. So I figured I would read the document for myself to see if it represents a calumny in service of, as Blinken implies, the real genocidaires. The short answer is that South Africa's document is anything but "meritless." 

It is instead an unflinching attempt at bearing witness. The South Africa filing assembles the amassed evidence of 100 days—and informed by 75 years of Palestinian history—into the most serious of charges. South Africa is gambling that the weight of its case, which is to say the suffering of Gaza placed within historical context, is enough to spur the ICJ into essentially issuing a preliminary injunction for Israel to stop. 

The injunction, if successful, would come years before a final ICJ ruling on whether Israel is committing genocide. It would amount to saying that South Africa's case is superficially plausible enough to create urgency for international action in defense of Gaza. Whether such a damning judgment will compel the most right-wing government in Israeli history, operating in the trauma of Oct. 7, to cease its collective punishment of Gaza (and the West Bank) is similarly uncertain. 

I'm not a lawyer. I am not qualified to handicap the ICJ—but read on for an assessment from someone who is. In any event, the reach or efficacy of the ICJ is a separate question from the strength of South Africa's genocide filing. You can agree with the filing or you can disagree with it. But you should read it for yourself, particularly if your inclination is to resist it—indeed, you should read it critically if your inclination is to embrace it—because whatever else it is, it's meticulous. 

I'M NOT GOING TO RECAP SOUTH AFRICA'S WHOLE FILING. But a couple things stand out. First, as to its political effects: South Africa points out that it, and by definition the other signatories to the Genocide Convention, are obligated to bring charges in cases where, at a minimum, states are failing to prevent genocide. South Africa limits the injunction it seeks to "all military attacks that constitute or give rise to violations of the Genocide Convention pending the holding of such hearing." In effect, South Africa is giving Israel an opportunity to craft a response, even a military one, to Oct. 7 that doesn't function like a genocide. 

Remarkably, and in contradiction to Blinken's portrayal, South Africa's filing condemns Hamas' Oct. 7 massacre. It doesn't do so by rote, either—there is an entire section, III B(3), devoted to it. "South Africa unequivocally condemns the targeting of Israeli and foreign national civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October 2023, as expressly recorded in its Note Verbale to Israel of 21 December 2023," it writes. Elsewhere in the section, it records Hamas and allied militants' capture of "elderly people, women and children" and views that as every bit the crime it is. "The ICC Prosecutor has warned that hostage-taking 'represents a grave breach to the Geneva Conventions' and the taking and holding of children is an 'egregious breach of fundamental principles of humanity,'" the filing acknowledges. 

That leads us to the substance of South Africa's filing. Oct. 7 is highly relevant history for everything that's happened since. But so is 1948, 1967, the 2005 Israeli "disengagement" from Gaza, Israel's post-Hamas-election blockade and the multiple wars waged on and from Gaza up through 2021. Unlike other observers, South Africa doesn't go so far as to argue that the Nakba never ended, meaning that every day the State of Israel has existed it has engaged in what can be understood as a genocide. It's taking the narrower position that to understand why the current offensive represents a genocide, it's necessary to see what the Palestinians living in Gaza have endured for generations, thanks to a lineage of Israeli political and military domination that has, over time, institutionally cheapened Palestinian life. Seeded throughout everything that follows about 2023 is a reminder of how fragile life in Gaza was the moment that the Israeli reprisal began.

South Africa then spends the majority of its filing documenting the Israeli assaults on Palestinian-vice-Hamas infrastructure in Gaza. It records the attacks on Gaza's "bakeries, water facilities and last remaining operating mill, and its razing of agricultural lands, crops, orchards and greenhouses," and the the destruction of Gaza's water systems that now provide "far below the ‘emergency threshold’ of 15 litres per day for 'war or famine-like conditions,' or the ‘survival threshold’ of 3 litres per day." It documents Israel's killing "at unprecedented rates" of Gaza's "[d]octors, journalists, teachers, academics and other professionals;" the mass expulsions; the severe mental and physical traumas inflicted in particular on Palestinian children; the deliberate placement of the Palestinians at "the brink of famine"; the squalor of overpacked refugee camps where "the lucky ones" share a toilet among 486 people; the attacks on "the foundations of Palestinian life," whether physical, cultural or political. 

The filing views the Israeli attacks on Palestinian health care infrastructure represent the destruction of the foundations necessary to sustain life. But it also pays chilling attention to what those attacks are doing to those who quite literally birth a Palestinian future. "Pregnant women are also being subjected to caesareans without anaesthetic," is a sentence in this filing that sharply concentrates the mind. The filing quotes the United Nations Special Rapporteur on violence against women and girls, Reem Alsalem, warning on Nov. 22 that "[T]he reproductive violence inflicted by Israel on Palestinian women, newborn babies, infants, and children could be qualified as… acts of genocide under Article 2 of the Convention on the Prevention of Genocide." 

That speaks to a theme throughout the filing. Its extensive footnoting to document what it lays out in Gaza is usually attributable to a United Nations entity, often on the ground. Bulletins from UNICEF or the World Health Organization or the Office of the High Commissioner on Human Rights and reputable NGOs that operate or did operate in Gaza are the typical sources South Africa cites. In addition to that are reports from the world's most respectable, mainstream and usually English-language news organizations. This is what Blinken is calling meritless. South Africa is not bringing up fringe accounts. It's reminding everyone of what has been in front of our faces these last 100 days. 

Then, to address the question of genocidal intent, South Africa soberly assembles the panoply of dehumanizing statements made by Israel's political and military leaders, up to and including Benjamin Netanyahu's invocation of the Amalekites and Defense Minister Yoav Gallant's "human animals" comment. Individually, they show, at an absolute minimum, that Israel is not punishing genocidal incitement. Arrayed together, the assemblage of commentary by people who currently wield or formerly wielded power in Israel that ascribes collective blame to Palestinians makes it hard to handwave away one-or-another statement as out of context or fringe, which the United States has attempted in order to protect its client. The comments go on for pages and pages, and document the statements of ministers, legislators, generals, colonels and soldiers. 

As well, the South Africa filing at times includes statements by United Nations, NGO and other figures who describe what they are seeing in Gaza as implicating the Genocide Convention. That read to me as a challenge to the ICJ—to validate and enforce the credible accounts of respectable people who represent the international architecture meant to prevent precisely what South Africa is saying is underway in Gaza. That architecture has failed practically since it was created thanks to the prerogatives of recalcitrant imperial powers. The ICJ accordingly faces a test: does international law exist, or only the Rules-Based International Order? 

Israel will have a chance to respond to South Africa tomorrow, and its filing will also be worth reading. Its current position is that accusing Israel of genocide in Gaza "is designed to weaponize against Israel a term coined to describe the worst crime committed against the Jewish people themselves, and in so doing is antisemitic and deeply offensive to the memory of the victims of the Holocaust."

As a Jew, all I can say to this is that a state proclaiming itself to be Jewish cannot place itself within field-goal range of committing genocide. Obviously, no state, nor any non-state actor, can permissibly commit genocide. But a state claiming to be Jewish sets upon itself particular moral obligations emerging from the Jewish people's experience of genocide. South Africa's filing is not what is offensive to the memory of the victims of the Holocaust. Israel's actions in Gaza are what is offensive to their memory. 

Never again. For anyone. 

SAM WRITES: I feel honor-bound as someone who has married into an Armenian family to say that it’s pretty offensive, too, to see the word “genocide” described as "a term coined to describe” the Holocaust. It is in fact a term coined to describe a kind of massacre that the word’s inventor, Raphael Lemkin, only learned about when he read that an Armenian guerilla was being prosecuted for hunting down and killing the Ottoman interior minister/grand vizier who destroyed the man's entire family. No extant legal framework could describe the crime the murdered man had committed. The vigilante’s name was Soghomon Tehlerian. His victim was Talaat Pasha, who was living in Berlin under the name Ali Saly Bey. Tehlerian killed Talaat as part of a plan of assassinations called Operation Nemesis. 

From Justifying Genocide: Germany and the Armenians from Bismarck to Hitler by Stefan Ihrig, a historian at the University of Haifa:

[Lemkin] recalled asking his law professor in Cracow at the time why it would not have been possible to convict Talat Pasha of the crimes he had committed against the Armenians in a court of law, outside his home country. The professor answered with a parable "explaining" state sovereignty: "Consider the case of a farmer who owns a flock of chickens. He kills them, and this is his business. If you interfere, you are trespassing." "But the Armenians are not chickens," was Lemkin's shocked reaction. 

The Nazis called the Armenians “The Jews of the Orient.” As Lemkin wrote in his own memoirs, “Sovereignty … cannot be conceived of as the right to kill millions of innocent people.”

WHENEVER I DEAL WITH A QUESTION OF INTERNATIONAL LAW, I usually consult my friend Mary Ellen O'Connell, a law professor at Notre Dame. International law is her specialty. When I asked her on Thursday morning if I was misreading the South Africa filing, Mary Ellen told me that she had been watching the livestream of the ICJ proceeding, which I hadn't woken up to watch. I asked her for her impressions of what she saw. This is what she sent FOREVER WARS. 

The Biden foreign policy team has failed to take seriously the absolute legal mandate that all parties in the Gaza War ceasefire immediately. Biden continues to speak of Israel's right of self-defense with little regard for what the UN Charter says about self-defense. Even if Israel had a right to use high level military force under the Charter, there is no justification for the catastrophic cost imposed on the civilian population.

The administration's wilful misunderstanding is fueled by the "rule-based international order" ideology, [whereby] the U.S. and certain close allies can interpret the law to suit their own policy ends.

Those who know authentic international law expected to hear a compelling, impassioned argument today from South Africa that Israel is violating the Genocide Convention in Gaza. Eight barristers delivered just that.

The case is for preliminary measures--an emergency ceasefire order. The ICJ will normally award such measures when human life is at stake, even if the case on the merits is open to considerable doubt. This one is not.

The ICJ just gave a generous ruling on genocide to The Gambia in its case against Myanmar. Most of the judges will be careful not to appear to be less generous--a double-standard-to South Africa in a case against a wealthy, Western state allied with the United States.

The ICJ can adopt its decision by a simple majority. Certainly a majority reflect world public opinion that Israel is violating the Genocide Convention in Gaza.

South Africa's evidence on intent to commitment genocide and acts of genocide are compelling. The film clip of Israeli soldiers dancing and chanting the words of Israeli officials that there are "no innocent civilians" in Gaza said it all.

At noon ET on Friday, Peter Beinart will host the Brown University genocide scholar Omar Bartov for a discussion of the South Africa filing and "when, if ever, it’s appropriate to compare Israel’s actions to that of the Nazis." I feel nauseous just thinking about that, but it's something we have to confront, and neither Peter nor Bartov would address any of these questions lightly. I recommend subscribing to Peter's newsletter so you can see their conversation.