South Africa v. Israel on Rafah Genocide
Virtually All Aid Has Now Been Blocked by the Israel Government
South Africa returned to the International Court of Justice in the Hague on Thursday over the Israeli invasion of Rafah, which its attorneys alleged is a further act of genocide in Gaza. South Africa had laid out its initial case in January. The court will take months to come to a decision on whether Israel has violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The court ruled on 26 January that it is plausible that Israel is committing genocide and issued the equivalent of a preliminary injunction against the further commission of acts of genocide. It issued a further injunction on 28 March.
The South African case has now been joined by Ireland, Egypt, Colombia, Libya, and Nicaragua, and Turkey says it too will join shortly. Egypt and Turkey have had strong trade and security relations with Israel and their decision to support Pretoria’s suit is a slap in the face of the Israeli government and a signal that Israel is losing what few friends it had in the region.
The Israeli government, given impunity from UNSC sanctions by the Biden administration, thumbed its nose at the injunctions and went on with its slaughterhouse policies. Adila Hassim, one of several South African attorneys pressing Pretoria’s case, pointed to five pieces of evidence that the Rafah campaign is genocidal. At one point in her detailing of Israel’s atrocities she broke down. She said,
(1) First, Israel has continued to kill Palestinians in Gaza, including women and children, at an alarming rate;
(2) Second, as a result of Israel’s onslaught, Palestinians in Gaza are facing what the Under-Secretary-General of the United Nations has described as the “worst humanitarian crisis” he has seen for more than 50 years;
(3) Third, Israel’s systematic targeting and bombardment of hospitals and medical facilities, and its throttling of humanitarian aid, has pushed Gaza’s medical system to collapse;
(4) Fourth, Israel’s direct attack and siege of Gaza’s biggest hospitals has led to the uncovering of mass graves evidencing Israeli massacres of Palestinians seeking shelter and medical treatment;
(5) Finally, most recently, Israel has intensified its attacks in the north while pressing on with its Rafah offensive leaving displaced Palestinians nowhere safe to go.
Earlier in the trial, Vaughan Lowe, Chichele Professor of Public International Law in the University of Oxford and himself a barrister, explained that “Israel’s action is directed against the Palestinian people throughout Gaza and the West Bank. South Africa’s request was initially focused on Rafah, because of the imminent prospect of death and suffering on a massive scale resulting from Israel’s attack. Since that request was made, it has become increasingly clear that Israel’s actions in Rafah are part of the endgame in which Gaza is utterly destroyed as an area capable of human habitation.”
Professor Lowe is clearly flabbergasted that partisans of the far, far right Netanyahu government continue to attempt to gaslight us all and to assert that nothing out of the ordinary is happening in Gaza. The the contrary, he said, we have the “evidence of continued bombings, attacks on people in so-called ‘safe areas’ to which they have been directed by Israel, attacks on aid convoys, and of mass graves and the horrors of which the corpses speak.”
Lowe deals summarily with the smarmy claim that the Israeli government is only exercising its right to self defense:
First, the right of self-defence does not give a State a licence to use unlimited violence. No right of self-defence can ever extend to a right to inflict massive, indiscriminate violence and starvation collectively on an entire people. Second, nothing—not self-defence or anything else—can ever justify genocide. The prohibition on genocide is absolute, a peremptory norm of international law. Third, the Court ruled in 2004 that there is no right of self-defence by an occupying State against the territory that it occupies. (Emphasis added.)
If I owned a fleet of small aircraft I’d arrange for these words to be sky-written over every major city in the world. What Lowe is saying is that in some instances, two legal principles might come into conflict with one another. Where, for instance, does free speech stop and libel begin? But there are some laws that trump others. Genocide is the ultimate in this regard. It trumps every other law. There is no legal principle you can invoke to justify genocide, not even the right to self-defense, which is enshrined in the UN Charter and is generally sacrosanct.
Remember this the next time you hear a glib US government spokesman dance around the Gaza genocide by saying that Israel has a right to defend itself from Hamas.
Max du Plessis explained Israel’s command that Palestinians who had taken refuge in Rafah must now leave is genocidal in effect: “Not only is there nowhere for the 1.5 million displaced people and others in Rafah to safely flee—so much of Gaza having been reduced to rubble—but that if Rafah is similarly destroyed there will be little left of Gaza or prospects for the survival of Palestinian life in the territory.” In particular, he said, the last functioning hospitals are in Rafah, and if they are destroyed as all the others have been, health care in the Strip will be dead.
At the same time, du Plessis pointed out, virtually all aid has now been blocked by the Israel government, which seized the Rafah border checkpoint from Egypt and closed it. Gaza cannot feed itself in the best of circumstances, but it is now a basket case needing hundreds of trucks of food and medical aid a day to survive. Hunger and disease are spreading, since most of the trucks are now barred.
Du Plessis said, “Deliberately herding 1.5 million Palestinians into Rafah and then carrying out a full-scale bombardment while sealing off entry and exit for life-saving aid to an already devastated population, while exposing them to famine and human suffering, leaves only one inference, regrettably, and that is of genocidal intent.”
Prominent attorney and senior counsel (SILK) Tembeka Ngcukaitobi pointed to the extensive statements made publicly by Israeli officials that prove their genocidal intent: The Israeli Minister of Defence: Yoav Gallant said that Israel is “taking apart neighbourhood after neighbourhood” and “will reach every location” in Gaza.
Finance Minister and Cabinet heavyweight Bezalel Smotrich : “[T]here are no half measures. Rafah, Deir al-Balah, Nuseirat—total annihilation.” He goes on to say: “We are negotiating with the ones that should not have existed for a long time.”
Ngcukaitobi cited reams of quotations showing genocidal intent from government officials—quotes that somehow I never see quoted by CNN anchors in the United States.
On 26 January, the court had found that Israel was violating specific provisions of the Genocide Convention, to which Tel Aviv is signatory, regarding targeting a group of people because of their ethnicity:
(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; and
(d) imposing measures intended to prevent births within the group.
All of these genocidal actions have continued and intensified ever since.
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