News Release

Examining South Africa’s Genocide Case Against Israel

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South Africa has released the names of its delegation to the Hague in its genocide case against Israel, led by the country’s minister of justice, Ronald Lamola.

On Jan. 11, Progressive International will hold a “special briefing from the Peace Palace in The Hague alongside representatives of the South African government.”

The Israeli human rights group B’Tselem just released the report “Israel is starving Gaza.”

South Africa’s 84-page, heavily footnoted Application to the International Court of Justice will form the basis of arguments the Court will hear Thursday morning, 10 a.m.-12 noon local time at The Hague.

In the section requesting provisional measures, South Africa states: “Israel has engaged in and failed to prevent or to punish acts and measures which are genocidal, constituting flagrant violations of Israel’s obligations under” numerous articles of the Convention on the Prevention and Punishment of the Crime of Genocide. This includes “killing Palestinians in Gaza, including a large proportion of women and children — estimated to account for around 70 per cent of the more than 21,110 fatalities — some of whom appear to have been summarily executed. … Causing the forced evacuation and displacement of around 85 per cent of Palestinians in Gaza — including children, the elderly and infirm, and the sick and wounded — as well as causing the large scale destruction of Palestinian homes, villages, refugee camps, towns and entire areas in Gaza, precluding the return of a significant proportion of the Palestinian people to their homes. …”

JOHN QUIGLEY, quigley.2@osu.edu
Professor emeritus of international law at Ohio State University, Quigley’s books include The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press) and The Ruses for War: American Interventionism Since World War II. He was featured on the recent news release “Beyond U.S. Isolation at UN, What’s Not Being Done.”

He said today: “An act of genocide was committed by Israel on Oct. 13 2023, when the Israel Defense Force ordered the evacuation of upwards of one million persons from the northern sector of Gaza. That population was ordered to move immediately to an area of Gaza to the south of Wadi Gaza, a valley that transects the Gaza Strip. The Genocide Convention is a treaty that defines a criminal offense and proscribes its commission, whether by individual persons, or by states. Under Article 2, the actus reus, as here relevant, is the act of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.’ The ‘group’ must be ‘national, ethnical, racial or religious.’ …

“The requirement to move immediately with only what could be carried, in circumstances in which fuel, water, food, and other necessities of life would be lacking, was calculated to bring about destruction of part of the population. In public explanations of the Oct. 13, 2023 evacuation order, relevant officials of Israel made clear that they anticipated ‘physical destruction’ of at least a part of the population.

Section D. of the South African Application enumerates “Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials  and Others.” These include statements by the President and Prime Minister of Israel. The South African Application notes: “On 9 October 2023, Defence Minister Yoav Gallant in an Israeli Army ‘situation update’ advised that Israel was ‘imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.'”

Quigley noted: “The wording of the Genocide Convention was written to encompass acts that had yet to lead to the mass atrocities that served as the inspiration for the Convention. The idea was to penalize the described acts when carried out with the described intent out of concern that were they not stopped, they might lead to mass atrocities. No minimum level of harm is specified.

“The Genocide Convention’s listing of the elements of the crime contains no element of motive. The commission of the described acts with the requisite intent is all that is required. As a result, genocide is not negated if carried out in response to a prior wrong. Nor is there an element that might require an animus adverse to the victim population. If an act calculated to bring about the partial physical destruction of one of the listed groups is carried out with knowledge that the act will have that result, genocide is present.

“Beyond the issue of an act of genocide lies the issue of complicity in that act. States that provide assistance to Israel, militarily or financially, are potentially liable. ‘Complicity in genocide’ is defined as a crime in Article 3 of the Genocide Convention. ‘Complicity’ is not further defined in the Genocide Convention. ‘Complicity’ is, however, defined in international law for purposes of the responsibility of states for international wrongs generally. With respect to a state, the standard for complicity that is accepted as a matter of customary international law is found in Article 16 of the International Law Commission’s 2001 document ‘Responsibility of States for Internationally Wrongful Acts:’ ‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.’ As a result, a state is complicit if it provides assistance with knowledge that genocide is being committed.”