What is South Africa’s five-point ICJ argument against Israel?

Israel will defend itself against South Africa’s arguments – from the denial of food and medicines to forced displacement, mass killings and more – on Friday.

Palestinian activists rally prior to the hearing at the International Court of Justice (ICJ) on a genocide complaint by South Africa against Israel, in The Hague, Netherlands, on January 11, 2024 [Remko de Waal/EPA-EFE]

South Africa’s landmark case against Israel for its war on Gaza began on Thursday at the International Court of Justice (ICJ), the World Court based in The Hague. Pretoria is accusing Israel of committing the crime of genocide in breach of the 1948 Genocide Convention.

More than 23,000 people have been killed in Gaza since October 7, according to the enclave’s health ministry. That includes nearly 10,000 children.

In its three-hour long presentation to ICJ judges, the South African team, led by international law academic and barrister, John Dugard, articulated the harrowing plight of Palestinians in Gaza who are trapped under siege, bombarded by continuous Israeli air strikes and attacked by a deadly Israeli military ground invasion.

It could take years for the ICJ to reach a final judgement. But this week’s initial proceedings are focused on South Africa’s specific request for an emergency order against the continuing killings and destruction in the Gaza Strip. Experts say an interim sentence could be out in weeks.

Adila Hassim, one of the advocates representing South Africa, said that it’s not necessary for the court to come to a final sentence on the genocide allegations now, but that it could conclude that at least some of Israel’s actions fall within the definition of the convention, and thus, intervene.

Here are the five main “genocidal acts” that Hassim accused Israel of having perpetrated during the war:

Mass killings of Palestinians

The “first genocidal act is the mass killing of Palestinians in Gaza”, Hassim said, showing the court pictures of mass graves where bodies were buried, “often unidentified”. She said Israel has deployed highly destructive 2000-pound bombs in parts of Gaza that it has itself declared safe. More than 1,800 families have lost multiple family members, while some families do not have any survivors left, Hassim said. No one has been spared, not babies, and especially not children, she added.

Bodily and mental harm

The second genocidal act, Hassim said, “is Israel’s infliction of serious mental and bodily harm,” on the people in Gaza. Close to 60,000 people have been wounded and maimed, most of them women and children, in a place where the health system has collapsed, she added. Hassim cited the arrest of large numbers of Palestinians, including children, who were undressed and loaded onto trucks going to unknown locations. “The suffering of the Palestinian people, physical and mental, is undeniable,” she said.

Forced displacement and food blockade

Hassim said Israel has deliberately imposed conditions that cannot sustain life and that are calculated to bring about the destruction of Gaza through its forced displacement of most of the population. Hassim said thousands of families have been displaced multiple times, with half a million now having no homes to return to. She cited how Israel gave entire hospitals orders to evacuate within 24 hours with no assistance in moving the injured or in moving medical supplies. It did the same with large parts of northern Gaza, where more than one million people were asked to move at short notice.

“The order itself was genocidal,” Hassim said.

The lawyer said Israel has also blockaded food and water from the Strip, causing widespread hunger and that it has removed the ability to distribute what is available by restricting the movement of aid workers. Hassim played a clip that showed hundreds of Palestinians running after a truck carrying aid into Gaza.

Israel, Hassim added, has also deliberately imposed conditions denying Palestinians in Gaza adequate shelter, clothes, bedding and other critical non-food items. She said there’s no safe water to drink, clean and cook, and that disease cases, including diarrhoea, are soaring. She said more Palestinians may die from hunger and disease, yet the siege continues.

Destruction of the healthcare system

The fourth genocidal action, Hassim said, is Israel’s military assault on Gaza’s healthcare system that renders life there unsustainable. Gaza’s healthcare was already crippled by years of attack by Israel, she said, and now, it is simply unable to cope with the sheer number of injured people who need life-saving treatment.

Preventing Palestinian births

Lastly, Hassim added, Israel is blocking life-saving treatment needed to deliver babies. This, she added, amounts to preventing births in Gaza, and is an act of genocide. Hassim also cited Reem Alsalem, UN special rapporteur on violence against women and girls, who had earlier warned that the “reproductive violence inflicted by Israel on Palestinian women, newborn babies infants and children … could be qualified as acts of genocide”.

What next?

Israel will present its oral argument on Friday and British Lawyer Malcolm Shaw will lead its presentation. Legal experts say Tel Aviv is likely to argue that its actions are in self-defence, following Hamas’s October 7 attacks that killed 1,139  and saw more than 200 people taken hostage, according to Israeli authorities.

Israeli officials have railed against the South Africa suit. Prime Minister Benjamin Netanyahu on Thursday said South Africa presented hypocrisy and lies at the court.

“We are fighting terrorists, we are fighting lies,” Netanyahu said. “Today we saw an upside-down world. Israel is accused of genocide while it is fighting against genocide.”

To drive its arguments home, the South African legal team needs not only to prove that the indiscriminate mass killings it calls a genocide are indeed happening, but that there is an intent to commit these acts by Tel Aviv.

“Genocides are never declared in advance,” Hassim, the advocate said in her presentation, adding that all the Israeli actions she detailed were enough proof of genocidal intent.

Tembeka Ngcukaitobi, a second lawyer, cited Israeli officials’ statements as further proof of intent. In particular, he recalled Netanyahu’s comments on October 28 when the prime minister urged troops preparing to enter Gaza to “remember what Amalek has done to you,” – a biblical command from God to entirely destroy a group. “The destruction of Palestinian life is articulated state policy,” Ngcukaitobi added.

Several countries and international organisations have rallied behind South Africa in its case. Malaysia, Bolivia and Turkey are among them.

Tel Aviv has seen backing from the United States, its main weapons supplier and diplomatic patron. As the proceedings kicked off on Thursday, hundreds of pro-Palestinian demonstrators gathered in solidarity, and nearby, pro-Israeli protesters marched, too.

Source: Al Jazeera and news agencies