Document:A Devastating Indictment of Israel’s War on Gaza
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A Devastating Indictment of Israel’s War on Gaza
Back in October, over eight hundred scholars of international law and genocide studies issued a public statement raising the prospect of an unfolding genocide in Gaza. I was ridiculed at the time for calling it just that. But now the moves to ‘know’ and have recorded what is going on has moved from the academic to the legal.
Today South Africa has told the International Court of Justice in The Hague that Israel’s actions “are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” and that it’s “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.
There are some critics or cynics who say that this doesn’t matter, that this is a performance and nothing will come of it. “Nothing is really to come out of this exercise. Like Russia ignored its rulings in 2022, Israel will just cold shoulder it” one such said.
It’s true that the Western countries will continue to back Israel, but it really does matter. As the genocide researcher Arnesa Buljušmić-Kustura has put it: “It’s a matter of historical record. It’s the first time there’s ever been an attempt to hold Israel at all accountable for its decades and decades of crimes against humanity. The fact that the entirety of the South African case is clearly laid out within historical context. The fact they mentioned the Nakba. The fact its case is so well-thought out, detailed, and clearly historically contextualised matters. It’s just the first step towards justice.”
The point that is being made is that even though, in the terrible words of the Irish lawyer Blinne Ní Ghrálaigh we are “Livestreaming Genocide“, this still has to be ‘known’ and still has to be ‘proven’. Blinne Ní Ghrálaigh (who was inspired to become a lawyer after learning about Majella O’Hare, a 12-year-old child from Armagh who was shot in the back and killed by a British soldier in 1976) laid out the scale of the violence:
One of the things that needs to be established – as well as the sheer scale of the violence – is the historical context. As is repeatedly countered – this did not start in October 2023 – and starting the analysis at that moment is an act of displacement and distortion. As Avi Shlaim author of “The Iron Wall: Israel and the Arab World” writes (All That Remains): “On 7th January 2009, while Operation Cast Lead was in full swing, I wrote an article in The Guardian. “How Israel brought Gaza to the brink of humanitarian catastrophe”. This was Israel’s first major assault on the Gaza Strip after its unilateral withdrawal in 2005. Further major military offensives followed in 2012, 2014, 2021 and 2022, not counting minor flare-ups and nearly 200 dead during the border protests in 2018 known as the March of Return. By my count, the current war is the sixth serious Israeli assault on Gaza since, and by far the most lethal and destructive. And it also raises the ominous spectre of a second Palestinian Nakba.”
Does the ICJ case matter?
Noura Erakat and John Reynolds have pointed out that the court has also issued rulings against imperial western powers in the past, from condemning the counterrevolutionary US intervention in Nicaragua during the 1980s to rebuking Britain’s continued colonial rule in the Chagos Islands today as unlawful. They have argued that:
“Although the ICJ has no coercive authority of its own to compel states to comply with its decisions, its judgments can nonetheless be a powerful resource for states and activists alike to use tactically in their political agitation and education.”
They also point out – and this has been repeated by many others that the usual difficulty with proving ‘genocide’ is the high bar of intent. To prove genocide you must have proof of intent and verifiable statements from senior figures with agency and command control authority eg senior military and political figures.
Erakat and Reynolds write:
“The thirty pages of South Africa’s eighty-four-page submission that set out these genocidal acts make for a devastating read. They are followed by a further eight chilling pages of quotes and statements of genocidal intent by Israeli state representatives that “indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group”. South Africa also asserts that genocidal intent is “to be inferred from the nature and conduct of Israel’s military operation in Gaza.”
“The intent to destroy a group is often seen as the most difficult element of genocide to prove and is often the distinction between a brutal war and a campaign of genocide. South Africa’s submission shows how the genocidal rhetoric that has accompanied Israel’s campaign in Gaza has been overt and omnipresent from the outset. The running database of Israeli statements of genocidal intent and incitement compiled by the legal group Law for Palestine has now passed five hundred entries.”
What will the Israeli defence be? Probably to smear the South Africans as antisemites (this has started already) and to frame the lawyers as being in defence of Hamas. They will attempt to deny intentionality and repeat the stock phrases about ‘safe zones’. But the world is watching and South Africa’s actions are an antidote to the feeling of helplessness in the face of such atrocity. Bearing witness is important and there is an irony that South Africa, whose own apartheid system was brought to world attention should be the protagonist in evidence that should accelerate the international boycott movement.
- "Crimes in the Darkness"
- "All that remains"
- "Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)"
- "Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965"
- "We Charge Apartheid?" Palestine and the International Criminal Court
- "No genocidal intent, they say"
- "Law for Palestine Releases Database with 500+ Instances of Israeli Incitement to Genocide – Continuously Updated"