Israel in the Dock
If any country knows about the devastating impact of apartheid as a system of government then it is South Africa. For many years, racial segregation denied non-whites many opportunities. When the system was finally dismantled with the help of Nelson Mandela in the 1990s, it took a lot of hard work to bring stability. The effects of apartheid are still felt to this day.
Thus when the South African government denounces Israel as an ‘apartheid state’, it is something that should be taken seriously. As Thamsanqa Malusi, a South African human rights lawyer, put it, the crime of apartheid is something that “resonates strongly with South Africa”.
South Africa continues to take on the mantle of protecting the rights and lives of Palestinians by now accusing Israel of genocide before the International Court of Justice. It is seeking an emergency injunction against Israel’s devastating military campaign in Gaza.
The South African advocate, Tembeka Ngcukaitobi, has submitted that the way that the military attack has been carried out demonstrates that “the intent to destroy Gaza has been nurtured at the highest level of state”.
Israel’s prime minister, Benjamin Netanyahu, responded publicly to the case by saying:
“Israel is fighting murderous terrorists who carried out crimes against humanity: They slaughtered, they raped, they burned, they dismembered, they beheaded - children, women, elderly, young men and women.”
The attacks by Hamas in October of last year were certainly horrifying but the response of the Israeli state has been continuous and overwhelming since that date. It is hard to disagree with the desperate intervention of South Africa that brings this question to the International Court of Justice to decide.
The evidence that they present will be heart-breaking and difficult for the court to ignore.
The United Nations Office for the Coordination of Humanitarian Affairs reports that there have been more than 23,000 deaths in Gaza since October with many more than that suffering serious wounds and injuries. Many of those are not fighters but instead women and children, a lamentably predictable outcome when the supposed ‘safe zones’ instead became the targets for the Israeli military.
South Africa’s brief is interesting and worth reading in full but can be summarised in five key arguments:
The mass killing of Palestinians.
The bodily and mental harm inflicted on the people of Gaza.
The forced displacement of the population and food blockade.
The destruction of any form of healthcare system.
The prevention of Palestinian births.
Will this be enough to prove genocide, a term defined in the relevant Convention as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”?
The evidence suggests that the practical element (or the actus reus) is present. Much more difficult will be proving the intent (or mens rea).
Nevertheless, this is something that South Africa has made a good effort at documenting. There are public statements from Netanyahu referring to the Palestinian people as ‘Amalek’ (an enemy of Israelites in the Hebrew Bible) as well as from the president, Isaac Herzog who suggested that the entire civilian population of Gaza is a legitimate military target.
In theory, this should be enough to at least check the military bombardment by Israel ahead of further investigation into conditions in Gaza. In practice, the law often does not work in such a simple (and just) way at this high level. Geopolitics plays a significant role and it is hard to imagine what a single court ruling could do against a state that has financial, political and military support from many Western governments like Germany, the U.S. and the UK.
This should not deter the judges. The world is watching and a finding of genocide based on international law would be a powerful message to send.
This week in the podcast, a powerful legal tool that has been used by local authorities against the Gypsy and Traveller communities comes under scrutiny. We also consider how that same mechanism might also be used against protestors.
Episode link: https://uklawweekly.com/2023-uksc-47/
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Marcus