Genocide can never be justified, South African delegation tells world court

“Genocide can never be justified — in any circumstances,” Vaughan Lowe KC said at the International Court of Justice on Thursday, on behalf of South Africa in its genocide case against Israel.

South Africa has asked the court to indicate “provisional measures”: binding, interim orders to immediately suspend its military operations in Gaza, to stop killing and injuring Palestinians and to stop “deliberately inflicting conditions of life calculated to bring about [their] destruction”.

The provisional measures hearing — which is being heard Thursday and Friday — is only the first part of South Africa’s case against Israel. Its bigger case, to be argued in due course, is that Israel has violated the Genocide Convention in a number of ways, including by committing acts of genocide against the Palestinian people.

South Africa had already set out its case in a detailed 84-page written application, submitted to the court in December. What was new, or highlighted, in the oral submissions on Thursday was an anticipation of possible arguments that would be coming from Israel’s side the next day.

Prof John Dugard SC, the leader of South Africa’s legal team, said that the people of South Africa and Israel “both have a history of suffering”.

“Both states have become parties to the Genocide Convention in the determination to end human suffering,” he said.

But Dugard sought to dispel any argument that the court did not have jurisdiction to entertain the case on the basis that there should have been further bilateral discussions between the two countries.

He said it was “incontrovertible” that a dispute existed between the two countries: “South Africa strongly believes that what Israel is doing in Gaza amounts to genocide; Israel denies this and claims that such an accusation is legally and factually wrong and moreover is obscene.”

In saying genocide was never justifiable, Lowe was addressing the issue of self-defence: a possible argument by Israel that Israel’s actions are defensive, in the face of Hamas’ own attack, particularly the horrific attack of October 7 last year.

“No matter how outrageous or appalling an attack or provocation, genocide is never a permissible response,” Lowe said. “Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, must stay within the limits set by international law.”

Lowe also dealt with why South Africa has asked the court to order that Israel immediately suspend its military operations.

“Israel says that Palestine and Palestinians are not its target, and that its aim is to destroy Hamas. But months of continuous bombing … and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be man-hunt for members of Hamas.” 

He said the attack was “indiscriminate” and prevented humanitarian relief reaching people in Gaza.

A suspension of military operations was the only way to secure the humanitarian relief, he said.

There was also the question of genocidal intention, he said. “If any military operation, no matter how it is carried out, is carried out pursuant to an intention to destroy a ‘people’, in whole or in part, it violates the Genocide Convention, and it must stop.”

Tembeka Ngcukaitobi SC addressed another issue that some commentators have raised: that Israel has said it is targeting Hamas and not Palestinians; and that where statements have been made that have strayed from this messaging, these were not from Israel’s government and it would therefore be hard to draw a causal link between those inflammatory and inciteful statements and the actions of the soldiers on the ground.

Ngcukaitobi said Israel’s special genocidal intent was “rooted in the belief” that the enemy was not just Hamas, but was “embedded in the fabric of Palestinian life in Gaza”.

He referred to a televised speech by prime minister Benjamin Netanyahu to the Israeli forces on 28 October 2023 — preparing for the invasion of Gaza — in which Netanyahu urged the soldiers to “remember what Amalek has done to you”. Ngcukaitobi said this was a reference to the Biblical command by God to Saul for the retaliatory destruction of the Amalekites: “Put to death men and women, children and infants, cattle and sheep, camels and donkeys”. “The genocidal invocation to Amalek was anything but idle,” he said. It was repeated by Netanyahu in a letter to the Israeli armed forces on 3 November 2023, he said. He then showed a video of soldiers on the ground, “dancing and singing “There are no uninvolved…” and that they obey one commandment, “to wipe off the seed of Amalek”.

Ngcukaitobi referred to other statements – by Defence Minister Yoav Gallant, by an Israeli Army Coordinator of Government Activities in the Territories, and Minister for National Security Itamar Ben-Gvir. “These statements are not open to neutral interpretations, or after-the-fact rationalisations and re-interpretations by Israel. The statements were made by persons in command of the state. They communicated state policy. If the statements were not intended, they would not have been made,” he said.

It has been reported that Israel intends to bring its own footage to the proceedings on Friday.

In his portion of the address, Max du Plessis SC, said: “In the speeches to this court today, South Africa has chosen to avoid the showing of graphic videos and photos. It has decided against turning this court into a theatre for spectacle. It knows … the temptation for both sides in a dispute to parade pictures to shock.”

Adila Hassim SC, in her address, also said South Africa would use audio-visual material “with restraint and only where necessary, and always with respect to the Palestinian people”.

Though not graphic or violent images, two photographs, in Blinne Ní Ghrálaigh KC’s address, might be remembered as the most poignant moment of South Africa’s case on Thursday.

The first was of a white board at a hospital in Northern Gaza that looked as though it was originally used for planning purposes – with neat columns and rows, drawn in green permanent marker. On it was a hand-written message by a Médecins Sans Frontières doctor: “We did what we could. Remember us”.

The second photo was of the same whiteboard, after an Israeli strike on the hospital on November 21, 2023. The board lay dusty against a wall, crumpled and riddled with bullet holes. The doctor who wrote the message, Dr Mahmoud Abu Nujaila, was killed in the strike, Ní Ghrálaigh said.

The hearing continues on Friday.

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