On 29th December 2023, South Africa filed a case at the International Court of Justice (ICJ), alleging that Israel is engaging in genocidal acts in Gaza. South Africa claims Israel is violating its obligations under the 1948 Genocide Convention, to which Israel is a ratifying party. The main issue in establishing the truth behind these allegations lies in finding whether there is an “intent” to destroy the Palestinian people as such, as required by Article 2 of the Genocide Convention to define a genocide.
BBC reports that Israel has strongly rejected the allegation: “Israel rejects with disgust the blood libel spread by South Africa”, the foreign ministry said. Furthermore, Lior Haiat, a spokesman for Israel’s foreign affairs ministry, said South Africa was “cooperating with a terrorist organisation that is calling for the destruction of the State of Israel”. Moreover, Haiat claimed that Hamas was “responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them”. Following its submission to the ICJ, South Africa’s president said in a statement that “South Africa is gravely concerned with the plight of civilians caught in the present Israeli attacks on the Gaza Strip due to the indiscriminate use of force and forcible removal of inhabitants,” as the BBC reports.
The 84-page document submitted by South Africa states that Israeli acts 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”. Making this statement, South African President Ramaphosa has compared Israel’s policies in Gaza and the occupied West Bank with his country’s past apartheid regime of racial segregation imposed by white-minority rule that ended in 1994, as reported in Al Jazeera. Article 2 of the Genocide Convention states that genocide involves acts committed with the “intent to destroy, either in whole or in part, a national, ethnic, racial, or religious group”. Al Jazeera’s senior political analyst Marwan Bishara pointed out that “where the disagreement lies is whether there is intent or no intent”. However, “the three leading Israeli officials have declared the intent, starting with Israeli President Herzog when he said there are ‘no innocents’ in Gaza, the defence minister who said Israel will impose collective punishment on the people of Gaza because they are ‘human animals’,” Bishara said.
While it is difficult to determine the intent of committing genocidal acts against the Palestinian people, it might be easier to assess the existence of an apartheid regime. Article 7 of the Rome Statute of the International Criminal Court defines apartheid as a crime against humanity, an institutionalised regime of systemic discrimination and segregation of an ethnic group with the intention to maintain this domination. When turning to the International Criminal Tribunals for Yugoslavia and Rwanda, the notion of ethnic group depends on the subjective perception of the perpetrator. Therefore, Palestinians constitute a racial group because they have been targeted as such by Israeli measures, and vice versa. However, crimes perpetrated by Israel are currently happening in the Occupied Palestinian Territory only – therefore, Israeli authorities are committing crimes against humanity, but not the crime of apartheid.
In conclusion, while it may be difficult to refer to the situation in the Occupied Palestinian Territory as an apartheid regime under international law, there might be substantial legal basis for assessing the nature of Israeli actions in Gaza as “genocidal acts”. Beyond Israeli statements that deny such actions in the strongest possible way, the ICJ now has the duty to establish the liability of the case, having accepted its admissibility. The power of such a judgment should not be underestimated. It might not restrain Israeli, but it could have an enormous impact on the international community.
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