The powerful case brought by South Africa against Israel at the international court of justice under the genocide convention is a wake-up call for many western governments and media outlets that uncritically supported Israel’s savage war. They should now reflect on the fact that they may have supported a genocide. South Africa’s case marked the first time since 7 October 2023 that the story of Gaza and the Palestinians has been so powerfully told through official channels, piercing through propaganda and obfuscation. It is hard not to be overwhelmed.
What has been remarkable about the last three months is the chilling disregard shown towards Palestinian civilian lives. Too many lazy talking points were used to enable so many in Europe and North America to look away, or worse, to justify complicity in what South Africa argues is a genocide, through their support for Israel both diplomatically and with arms supplies.
South Africa’s case powerfully disrupted these talking points. Unlike many who have pretended that what happened on 7 October is an external attack in which Palestinian groups crossed a sovereign border, South Africa highlighted the context of the continuing denial of self-determination and the refugees’ right to return. Despite Israeli claims to the contrary, Gaza remains occupied because Israel has effective control of the territory. South Africa argues that Israel has used starvation as a method of warfare against the impoverished ghetto, a ghetto that Israel has subjected to four highly disproportionate onslaughts since 2000.
By describing Israel’s rule over the Palestinians as an apartheid, South Africa is not only speaking from historical experience but also reiterating what many human rights organisations and UN experts have already demonstrated. Amnesty International and Human Rights Watch have detailed in extensive reports the apartheid system of domination, segregation and institutionalised discrimination that Israel has imposed on all Palestinians. By claiming that Israel is a democracy, too many politicians and commentators have pretended that these apartheid reports do not exist.
The insistence that Gaza is occupied and that the siege is integral to an apartheid system is significant, because it challenges Israel’s argument that it acted in self-defence. This is not a case of an external attack, so the outbreak of violence cannot be understood as nihilistic terrorism, irrational violence, or ancient hatred. In any event, South Africa argued that the self-defence argument is irrelevant, because nothing can ever justify genocide. States cannot commit genocide or impose apartheid in the name of security or self-defence.
Many in the west have dismissed the charges of genocide as an explanation for the various destructive measures that Israel has deployed in Gaza. This dismissive attitude has been aided by a media that have pretended Israeli statements about burning Gaza or expelling Palestinians don’t exist. In contrast, South Africa detailed these statements, arguing that a “distinctive feature” of this case is the existence of “overwhelming” evidence for genocidal intent, as well as incitement to genocide. Seemingly undeterred by the case at The Hague, Israeli lawmakers produced many of these genocidal statements in the days before the hearing.
One of the bizarre arguments made against South Africa so far is that the country should not involve itself in global politics, and should focus instead on its internal affairs. But nobody has criticised the EU and the US for involving themselves in international affairs. South Africa’s intervention seeks to protect lives that western countries seem not to care about – and for that reason, it is both justifiable and honourable. South Africa has emphasised that it has a legal obligation to prevent genocide. Should the court issue provisional measures against Israel, every state that is a member of the genocide convention will be put on notice that they, too, have an obligation to prevent genocide.
It’s not surprising that those who have supported Israel are trying to dismiss South Africa’s case. But people of conscience should expect and demand a judicial intervention to save Palestinian lives. Of course, we shouldn’t expect much from the Israeli judge Aharon Barak, who was appointed by Benjamin Netanyahu to the panel of judges at The Hague to represent Israel in this case. “I agree totally with what the government is doing,” Barak has already said.
For the other judges, the consequences of a failure to intervene would be grave. The urgency of an intervention was clear when the UN stated, days before the court hearing, that Gaza, which is home to 2.3 million people, is now “uninhabitable”, and that the risks of famine and diseases are horrifying, and will lead to many more deaths.
For too many men, women and children in Gaza, this intervention will be too little, too late. But as Blinne Ní Ghrálaigh, the formidable Irish lawyer representing South Africa, argued in the hearing, what is at stake is saving many more lives. Without a halt to Israeli military activity, there will be no end to the decimation of Gaza and the destruction of Palestinian people. Should the court fail to act, she argued, it would be departing from its own previous rulings and the reputation of international law will further be tarnished. The court must now rise to that challenge.
Nimer Sultany is reader in public law at Soas University of London. He is a Palestinian citizen of Israel
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