South Africa has charged Israel with genocide, and the case is strong.
Repost of a retracted Daily Kos diary, originally published January 5, 2024
Below is a repost of an article that was originally published to Daily Kos January 5, 2024 and retracted by the administrators within three hours of publication. Nothing has been added; everything is as it was in the original article. I post it here for posterity and reference purposes.
South Africa has charged Israel with genocide, and the case is strong.
On December 29, 2023, South Africa brought a case against Israel to the International Court of Justice, charging Israel with genocide.
Several experts, weighing in, conveyed in their evaluations the strength of South Africa’s case, primarily due to its exacting thoroughness. One such expert, Francis Boyle, professor of international law and the person who “single-handedly won two World Court orders for the Republic of Bosnia-Herzegovina against Yugoslavia to cease and desist from committing all acts of genocide,” predicted with certainty that South Africa will prevail:
“[B]ased on my careful review of all the documents so far submitted by the Republic of South Africa, I believe South Africa will win an order against Israel to cease and desist from committing all acts of genocide against the Palestinians.”
“[W]e have to understand we here in the United States of America have the power to stop this. But we have to figure out how to use the order that South Africa will win….”
(Emphases added.)
2023 was a year full of legal documents, due to all of the cases brought against former president Donald Trump. We have gotten fairly skilled at reading lengthy legal documents, items running sixty pages or longer. We’ve become adept at this.
I urge you to read South Africa’s 84-page petition to the International Court of Justice. The level of detail is the body of the cae and cannot be easily summarized, but even the most ardent skeptic of genocide in Gaza should step back after reading this document in order to think twice.
As it happens, in a November interview, Craig Mokhiber, a top U.N. diplomat of thirty years who in October abruptly submitted his resignation due to the stance of the United States in this conflict, gave his own summary of the basis of a case of genocide against Israel:
“I’ve said, ‘What’s so special about this case?’ First of all, the catalog of the specific acts that are in the Genocide Conventions that have been perpetrated here. You know, you can often find, like, the requirement of serious harm. That’s happened here. Mass killings—that’s happened here. Right? But you have things like imposing conditions of life that are designed to bring out the destruction of a group, in whole or in part. Here we have a very special case where Gaza has literally had conditions of life intentionally imposed on them.
“At least since 2015 one could argue before, where food and water and sanitation and medicine and infrastructure and movement and other political rights have been intentionally imposed to make it a place where conditions of life are unbearable. That’s a difficult thing to prove in other cases, but here it’s on the record because it’s been investigated and monitored and documented so much.
“You have on the record multiple public statements of genocidal intent expressed by the President, the Prime Minister, senior cabinet ministers, senior military officials, think tanks associated with the government, on the record, in speeches, in declarations saying, ‘We will not distinguish between combatants and non-combatants,’ ‘They’re all guilty,’ statements of intent to wipe out all of the Gaza Strip, statements dehumanizing Palestinians in viciously racist sort of ways that would be evident of genocide as well. Even the Prime Minister invoking a Biblical passage of Amalek, calling for wiping out the entire population, as the verse goes: men, women, children, sucklings, as well as their livestock (sheep, goats) and their asses, and sparing none.
“This is very rare, and this, to me, is the sound of impunity, because it’s only if you think you’re not going to be held accountable that you would so publicly declare these kinds of intentions. So, in my years as a human rights lawyer, I’ve never seen such an obvious case, at least a prima facie case, of genocide that should be subject to investigation and prosecution under the rule of law, and to wait for a court of law to decide that later before you mobilize around genocide prevention is also, for us, a breach of those obligations.”
In late December, a very detailed and wide-ranging oral summary also was released by an interested member of the public on the YouTube channel beacebrocess. The information laid out in the approximately 45 minute presentation mirrors that listed in South Africa’s petition.
I too had stated affirmatively in early November that the state of Israel was committing genocide. Most of the elements that I had listed are incorporated in South Africa’s document. My diary was published November 1, and in the intervening period things have only gotten worse, strengthening the claim that Israel is engaged in the “crime of crimes.”
South Africa itself, in the first paragraph of the introduction of its application, states:
The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.
It goes on to sum up, on page 74, an abbreviated list of these violations:
117. As detailed above, contrary to Article I of the Convention, Israel has perpetrated and is perpetrating genocidal acts identified in Article II. Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention. The compelling circumstances are set out in detail in the Application, and include that:
— Nowhere is safe in Gaza.
— Israel is dropping ‘dumb’ bombs and bombs weighing up to 2,000 lbs (900 kgs) on one of the most densely populated places in the world.
— Palestinians in Gaza are being killed at a rate of approximately one person every six minutes.
— At least 21,110 Palestinians have been killed to date in Gaza, with a further estimated 7,780 are missing, presumed dead under the rubble.
— An estimated 7,729 Palestinian children had already been killed by 12 December 2023; at least 4,700 other children and women are reported missing, presumed dead under the rubble, leading UNICEF to describe Israel’s military attacks as a ‘war against children’.
— Hundreds of Palestinians in Gaza are being wounded daily, many with life-changing and life-threatening injuries.
— Besieged and bombed hospitals are no longer able to treat the sick and wounded; only 13 of Gaza’s 36 hospitals are still functioning.
— 1.9 million Palestinians in Gaza — approximately 85 per cent of the population — have been forcibly displaced from their homes.
— Palestinians in Gaza are being corralled into ever smaller areas of Gaza, without sufficient shelter, where they continue to be bombed by Israel.
— Israel continues to prevent sufficient humanitarian assistance to Palestinians in Gaza, including preventing sufficient access to food, water, shelter, medicine and medical assistance.
— Vulnerable Palestinians, including the sick and infirm, children and expectant mothers are at particular risk.
— Infectious diseases are spreading rapidly.
— International experts are warning of imminent mass starvation.
118. Israel has also failed to prevent or to punish: genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, contrary to Articles III and IV of the Genocide Convention.
This list, in its brevity, cannot convey the import of the details that are included in the report. I again urge readers to absorb it in full.
Israel has responded to these charges, calling them “baseless” and a “blood libel.” (Israel had also called the call by U.N. Secretary General António Guterres for a humanitarian ceasefire in October a blood libel.) When asked about this characterization, Lindiwe Zulu, South Africa's Minister of Social Development and an MP with the African National Congress, stated, “It’s very unfortunate at this point, because what people can see on their TVs, in their homes and everywhere they are, it speaks for itself.”
Responding to Israel’s foreign affairs spokesperson declaring that South Africa was cooperating with a terrorist organization, Lebohang Pheko, a senior research fellow and political economist at the Trade Collective, said,
“I think it’s extremely regrettable that we are in a realm where there’s so little nuance . . . and the compass of human ethics is so skewed that acts of terror and acts of state aggression, as they have been conducted by a country like Israel, are actually then in some way moderated, defended, and viewed as somehow defensible, in fact.
“And I think that this false equivalency, for example, between a settler-colonized state like Palestine, which is under-resourced, versus a militarized state, a military state, like Israel, who are then trying to pretend that there’s an equivalency and are also trying to act as though that anybody who speaks against them are then anti-semitic and so forth. And even the languaging, the nuance, is extremely difficult and makes it difficult to then see the trees within the woods.”
The United States also responded to South Africa’s application before the International Court of Justice, calling it “meritless, counterproductive, and completely without basis in fact whatsoever.” Those were the words of John Kirby, U.S. National Security Council spokesperson. Francis Boyle noted that the United States faces its own level of danger:
“I would also say, with respect to the Biden administration, they are currently in violation of the Genocide Convention Implementation Act, that makes genocide a crime under United States law. And again, once we — South Africa wins this order, the Biden administration also will stand in violation of the Genocide Convention Implementation Act.”
Also, a previous case was filed in federal court by the Center for Constitutional Rights against the United States in November, saying the Biden administration was complicit in the genocide currently occurring in Gaza. That case is pending. While I am not a lawyer, it stands to reason that if South Africa is successful in bringing its action that the case against the United States at the International Criminal Court would be strengthened. (I welcome those with international law experience to weigh in on this point.)
It is not just South Africa saying that genocide is occurring at this very moment in Gaza. The U.N. Palestinian Rights Committee in December also made a clear, albeit non-binding, determination. “Our discussion today is entitled, ‘The Responsibility to Prevent Genocide,’” the chair of the panel, Hari Prabowo, said at the top of his concluding remarks, “but sadly it’s clear that genocide is already happening. So our question now is the responsibility to stop the ongoing genocide.”
Unlike the U.N. Palestinian Right Committee’s summation, the determination at the International Court of Justice would be binding with the force of law.
Israel has indicated its intent to respond to the charges at the International Court of Justice when the body takes up the matter.
Francis Boyle, drawing on his experience, said that “we can expect an order within a week,” at least in response to South Africa’s emergency petition which asks the International Court of Justice to render immediate relief, as the risk of irreparable harm suffered by the Palestinian people is so great. If granted, the Court would direct Israel to halt all military activity in the region.