Posted on January 2, 2024, by & filed under Genocide, News.

South Africa's 84 page long Application to the International Court of Justice to begin proceedings against Israel for its genocide in Gaza is a devastating document laying out Israel's genocidal acts and statements in horrifying detail.

The following article by ICAHD USA co-chair Robert Herbst was first published in Mondoweiss on 31 December 2023.

On Thursday, December 28, South Africa filed an Application Instituting Proceedings at the International Court of Justice to commence proceedings in a legal forum against Israel for its genocide in Gaza, and to press for “provisional measures” – a preliminary order requiring the Israel Government and military to cease their genocidal acts in Gaza pending a full hearing by the court.

South Africa’s Application is 84 pages long and devastating – to the State of Israel, to its Jewish political and military leaders and personnel committing the genocidal acts and speaking openly of their genocidal intent, to those in Israel, America, and Europe standing so firmly in support of them, and to the Jewish people in whose name Israel purports to act.

The Application lays out these genocidal acts and statements in horrifying detail, after noting the contextual background so often missing in diplomatic and mainstream media discussion of the Gaza war. Israel’s acts of genocide, says South Africa:

“are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity” – all of which have occurred “in the broader context of Israel’s [] 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza[.]”

Indeed, one of the most salient parts of the Application is its meticulous documentation of the misery that Israel imposed on Gazans before October 7, imposing a stringent blockade and effectively sealing them off from the outside world, reducing the area available for farming, severely reducing their ability to fish in the 20-mile zone stipulated in the Oslo Accords, and severely restricting food imports by calories per head to a humanitarian minimum after its “disengagement” and Hamas’s election victory in 2006, restricting electrical power, and polluting the coastal aquifer, the sole source of natural drinking water, all severely impairing daily living and the economy, resulting in a 45 percent unemployment rate and a 60 percent poverty rate, with 80 percent of the population dependent on some form of international assistance. And in the three years before October 7, Israel killed approximately 7,500 Gazans, including approximately 1,700 children. Over 18 months of weekly, peaceful protests at the separation fence against the blockade, Israeli snipers killed hundreds and wounded over 36,000, including nearly 9,000 children. Almost 5,000 unarmed people were shot in the lower limbs, deliberately, many standing hundreds of meters away.

All that would be bad enough. But, as the Application demonstrates, Israel has descended to a whole new level of criminality that clearly meets the definition of genocide under the 1948 Convention on the Prevention and Punishment of Genocide: “acts intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.”

Gaza’s 2.3 million people clearly form a substantial part of that group, which numbers 5.5 million under occupation. The Application thoroughly documents these genocidal acts that violate the Convention: “killing Gazans en masse, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.”

As the Application explains:

“Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm. Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes [more than 60% of Gaza’s housing stock], alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.”

Israel now has to decide how to respond, both to the merits of South Africa’s claims and to the request for preliminary relief. Israel has an obligation as a UN member and a party to the Genocide Convention to respond, and it faces a judgment rather than merely an advisory opinion if it loses. This well-crafted, well-documented accusation of genocide is therefore an important and immediate legal and moral challenge to the Jewish State less than a century after the Holocaust.

Israel has already issued its first broadside condemning South Africa for launching its case against it, calling upon the ICJ “to completely reject South Africa’s baseless claims.”  The Israeli Foreign Ministry’s statement called it a “blood libel” by a nation cooperating with a terrorist organization, and claimed that its army directs its military efforts only against Hamas.

Genocidal intent

No one who reads South Africa’s Application for themselves could possibly credit Israel’s claim above because the statements of senior Israeli officials demonstrating genocidal intent are displayed in all their infamy – from the Prime Minister, President and Minister of Defense on down — proving that Israel is deliberately fighting a war against the entire Palestinian population of Gaza. Here are some of the most disgusting morsels:

Prime Minister Netanyahu: invoking the Biblical story of the total destruction of the Amalek by the Israelites, which Biblical passage reads in relevant part: “Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.”

President Herzog: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”

Minister of Defense Gallant:  Israel is “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.”

“Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.”

Minister for National Security Ben-Gvir: “[t]o be clear, when we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.”

Minister of Energy and Infrastructure Katz: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

Minister of Finance Smotrich: “We need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”

Minister of Heritage Eliyaahu: “The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes … We must talk about the day after. In my mind, we will hand over lots to all those who fought for Gaza over the years and to those evicted from Gush Katif” [a former Israeli settlement].  “There is no such thing as uninvolved civilians in Gaza.”

Minister of Agriculture Dichter: “We are now actually rolling out the Gaza Nakba.”

Knesset Deputy Speaker and Foreign Affairs and Security Committee Member Vaturi: “Now we all have one common goal — erasing the Gaza Strip from the face of the earth.”

Israeli military officials have echoed their political leaders’ calls to genocide:

Israeli Reservist Major General and adviser to the Defense Minister Eiland: “This is what Israel has begun to do — we cut the supply of energy, water and diesel to the Strip . . . But it’s not enough. In order to make the siege effective, we have to prevent others from giving assistance to Gaza . . . The people should be told that they have two choices; to stay and to starve, or to leave. If Egypt and other countries prefer that these people will perish in Gaza, this is their choice.”  

“When you are at war with another country you don’t feed them, you don’t provide them electricity or gas or water or anything else . . . A country can be attacked in a much broader way, to bring the country to the brink of dysfunction. This is the necessary outcome of events in Gaza.”

“Israel has no interest in the Gaza Strip being rehabilitated and this is an important point that needs to be made clear to the Americans.”  

“The State of Israel has no choice but to make Gaza a place that is temporarily, or permanently, impossible to live in.” 

“If there is an intention for a military action at Shifa [Hospital], which I think is inescapable, I hope that the head of the CIA got an explanation of why this is necessary, and why the US must ultimately back even an operation like this, even if there are thousands of bodies of civilians in the streets afterward.” 

“Israel needs to create a humanitarian crisis in Gaza, compelling tens of thousands or even hundreds of thousands to seek refuge in Egypt or the Gulf . . . Gaza will become a place where no human being can exist.”  

“Who are the ‘poor’ women of Gaza? They are all the mothers, sisters or wives of Hamas murderers. . . . The international community warns us of a humanitarian disaster in Gaza and of severe epidemics. We must not shy away from this, as difficult as that may be. After all, severe epidemics in the south of the Gaza Strip will bring victory closer . . . It is precisely its civil collapse that will bring the end of the war closer. When senior Israeli figures say in the media ‘It’s either us or them’ we should clarify the question of who is ‘them’. ‘They’ are not only Hamas fighters with weapons, but also all the ‘civilian’ officials, including hospital administrators and school administrators, and also the entire Gaza population who enthusiastically supported Hamas and cheered on its atrocities on October 7th.”

Ninety-five-year-old Ezra Yachin, a veteran of the Deir Yassin massacre during the 1948 Nakba, called up for reserve duty as a motivational speaker to “boost morale” among Israeli troops ahead of the ground invasion, said to social media while being driven around in an Israeli army vehicle, in IDF fatigues:  “Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live . . . Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him . . . We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”

The Application draws the only possible conclusion:

The above statements by Israeli decision-makers and military officials indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group “as such.” They also constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished. The clear inference from the acts of the Israeli army on the ground — including from the vast number of civilians killed and injured, and the scale of displacement, destruction and devastation wrought in Gaza — is that those genocidal statements and directives are being implemented against the Palestinian people.  

The Application goes on to quote IDF soldiers stationed on the ground in Gaza whose observations support that conclusion, along with similar widespread genocidal rhetoric among non-cabinet Knesset members, Israeli media and civil society generally.  The fundamental theme is that there are no innocents in Gaza, only 2.3 million terrorists, who must be wiped out — Dresden and Hiroshima often cited as positive examples.

All this convincingly proves that Israel’s response to the October 7 attack was not primarily targeted at Hamas, as Israel claims, but rather at the Gaza population as a whole, designed to inflict maximum collective punishment on non-combatants, and to encourage, if not require, the entire Gazan population to leave, after which they would not be permitted to return.  This huge ethnic cleansing dwarfs that of 1948. With its intent to destroy a large part of the Palestinian group remaining in Palestine clearly established, Israel’s acts set forth in excruciating detail in the Application constitute genocide.

Genocidal acts

And they are truly nauseating to read, digest and contemplate.  They are summarized as follows: “(1) killing Palestinians in Gaza, including children, in large numbers; (2) causing serious bodily and mental harm to Palestinians in Gaza, including Palestinian children; and inflicting on them conditions of life intended to bring about their destruction a group.  Those conditions include: (3) expulsions from homes and mass displacement, alongside the large-scale destruction of homes and residential areas; (4) deprivation of access to adequate food and water; (4) deprivation of access to adequate medical care; (5) deprivation of access to adequate shelter, clothes, hygiene and sanitation; and (6) the destruction of the life of the Palestinian people in Gaza; and (7) imposing measures intended to prevent Palestinian births.”

I am going to try to give you a sense of the evidence South Africa’s lawyers have compiled in each of these sections, but to really appreciate the gruesome reality of what Israel has done and continues to do, it is worth reading them in their entirety.

1. Killing Palestinians

The heavy unguided bombs Israel has used in Gaza have a “predicted lethal radius” of up to 360 metres – that’s between a fifth and a quarter of a mile (4 to 5 city blocks) — and are “expected to cause severe injury and damage as far as 800 metres – a half mile (10 city blocks) in all directions from the point of impact.”  So imagine you are standing in Times Square in New York City.  Look 4 blocks to the North and South, and to the East and West.  That’s the kill zone of each of these bombs.  There is no way that those using these munitions, supplied by the United States, in one of the most densely populated areas in the world, are not intentionally killing huge numbers of non-combatants – women, children, whole families, together – by the hundreds at a time, and are doing so intentionally. Over 115 Palestinian children have been killed every day. “It is estimated that more Palestinian children were killed in the first three weeks in Gaza alone (a total of 3,195) than the total number of children killed each year across the world’s conflict zones since 2019.”  This is deliberate, wholesale slaughter.

“Palestinians in Gaza have been killed in their homes, in places where they sought shelter, in hospitals, in UNWRA schools, in churches, in mosques, and as they tried to find food and water for their families. They have been killed if they failed to evacuate, in the places to which they fled, and even while they attempted to flee along Israeli declared “safe routes.” Reports are multiplying of Israeli soldiers performing summary executions, including of multiple members of the same family — men, women and older people.”  

“To date, Israel has killed: over 311 doctors, nurses and other health workers, including doctors and ambulance drivers killed on duty;103 journalists, amounting to over one per day, and more than 73 per cent of the total number of journalists and media workers killed globally in 2023; 40 civil defence workers — responsible for helping to dig victims out of the rubble — killed while on duty; and over 209 teachers and educational staff. 144 United Nations employees have also been killed, the “highest number of aid workers killed in UN history in such a short time.”

2. Causing serious bodily and mental harm to Palestinians in Gaza

The majority of the 55,000 wounded are women and children. One thousand of those kids have lost one or both legs. The white phosphorus Israel uses causes “deep and severe burns, penetrating even through bone, and capable of reigniting after initial treatment. There are no functioning hospitals in the North of Gaza, in particular, so injured persons are reduced to “waiting to die,” without surgery or medical treatment beyond first aid, and dying slow, agonizing deaths from their injuries or from infection.

“The extreme levels of bombardment and lack of any safe areas are also causing severe mental trauma in the Palestinian population in Gaza.” That comes on top of severe trauma from prior attacks, which left 80 percent of Palestinian children experiencing higher levels of emotional distress, demonstrating bedwetting (79 percent) and reactive mutism (59 percent), and engaging in self-harm (59 percent), and suicidal thoughts (55 percent). Eleven weeks of relentless bombardment, displacement, and loss have only magnified and intensified that trauma, which is unimaginable for the estimated tens of thousands of Palestinian children who have lost at least one parent and those who are the sole surviving members of their families.

3. Mass expulsion from homes and displacement of Palestinians

Over 1.9 million out of 2.3 million Gazans, 85% of the population, have been forced from their homes, notwithstanding that there is nowhere safe to flee. Israel has accomplished this through evacuation orders and killing those who cannot leave or refuse to do so. In early December, Israel dropped leaflets urging Gazans to leave areas in the South to which they had previously been told to flee, reneging even on its false promises of safety. According to the UN Secretary General, “the people of Gaza are being told to move like human pinballs – ricocheting between ever-smaller slivers of the south, without any of the basics for survival.” Besides wreaking terror among the displaced, the increased population density which results renders the continuing Israeli bombardments even more lethal.  This cannot be an accident; it is knowing and willful. Because 60% of Gaza’s housing stock has been damaged or destroyed, the forced evacuation from homes is “necessarily permanent.”  And the extent of the destruction of Gaza has rendered an open-air prison now “largely unlivable.”  With housing and civilian infrastructure “razed to the ground,” this permanent mass forced displacement is “genocidal, in that they are taking place in circumstances calculated to bring about the physical destruction of Palestinians in Gaza.”

4. Deprivation of access to adequate food and water to Palestinians in Gaza

Between October 9 and 21, Israel imposed a complete siege on Gaza – no electricity, food, water, or fuel. Since October 21, a few aid trucks have been allowed in, well below the previous 500 trucks a day. Since November 21, importation of some fuel has been permitted, but “well below the minimum requirements for humanitarian operations,” as it cannot easily be moved around Gaza from the entry points. So it cannot reach most of the people in need.

The December 22 Security Council Resolution is of little or no help because it does not properly address the four elements identified by the UN for allowing effective humanitarian aid:  security, staff, logistics, and the resumption of commercial activities. The relentless Israeli bombardment, the inability of UN staff to live and work in safety, the UN trucks destroyed or left behind in the hurried evacuation of North Gaza, and the interruption of communications have all “massively hampered the aid operation.”

“Most of the Palestinian people in Gaza are now starving, with levels of starvation rising daily.”  

“Four out of five of the hungriest people anywhere in the world are in Gaza.”

“An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition.”

The World Health Organization is calling Israel’s actions in cutting off Gaza “from water, food, anything which is necessary for any sort of life” “a cruel campaign,” brought “against the whole population of Gaza.”

The conditions created by the siege are exacerbated by Israel’s continuing strikes on Gaza, including on its bakeries, water facilities and last remaining operating mill, and its razing of agricultural lands, crops, orchards and greenhouses.

Water is also severely depleted. Israel continues to cut off piped water for the North of Gaza, and the North’s water desalination plant is non-functioning. From 15 October 2023, Israel began piping a small amount of water to the South, in part to “push the civilian population to the southern [part of the] Strip.” The damage from Israeli airstrikes and shelling has also rendered most of the water system inoperable. The World Food Programme has reported that there is only 1.5 to 1.8 litres of clean water available per person per day, for all uses (drinking, washing, food preparation, sanitation and hygiene). This is far below the ‘emergency threshold’ of 15 litres per day for “war or famine-like conditions,” or the ‘survival threshold’ of 3 litres per day. 

Experts are now predicting that more Palestinians in Gaza may die from starvation and disease than airstrikes, and yet Israel is intensifying its bombing campaign, precluding the effective delivery of humanitarian assistance to Palestinians. It is clear that Israel is through its actions and policies in Gaza, deliberately inflicting on Palestinians conditions of life calculated to bring about their destruction.

5. Deprivation of access to adequate shelter, clothes, hygiene and sanitation to Palestinians in Gaza

1.2 million of the 1.9 million displaced Gazans are seeking shelter in the schools and tents run by UNRWA, which are unsafe. Israel has killed hundreds of Palestinians there despite Israel having been provided the coordinates of all UN facilities — facilities which UNRWA acknowledged on December 7 is “on the verge of collapse.” On average, 486 people use a single toilet.  Oxfam reports that newborns in shelters are dying from avoidable causes because of the absence of adequate sanitation, food, water and medical care.

Those in shelters are better off than the other 700,000 displaced, many of whom are in hospital courtyards, makeshift camps, or simply live and sleep in the streets, exposed to the elements.  There is an average of one shower for every 4500 people.

On 20 December 2023, the Director General of the World Health Organization warned that “Gaza is already experiencing soaring rates of infectious disease outbreaks. Diarrhoea cases among children aged under 5 are 25 times what they were before the conflict. Such illnesses can be lethal for malnourished children, more so in the absence of functioning health services.” Sewage is flowing into the streets where Palestinians are living, as it can no longer be managed. “Everywhere you look, is congested with makeshift shelters. Everywhere you go, people are desperate, hungry and terrified.” These conditions — deliberately inflicted by Israel — are calculated to bring about the destruction of the Palestinian group in Gaza.  

6. Deprivation of adequate medical assistance to Palestinians in Gaza

“Almost above all else, Israel’s military assault on Gaza has been an attack on Gaza’s medical healthcare system, indispensable to the life and survival of the Palestinians in Gaza.”

On December 7, the UN Special Rapporteur noted that “[t]he healthcare infrastructure in the Gaza strip has been completely obliterated.”

On December 4, the International President of f Médecins Sans Frontières wrote:

“We are watching as hospitals are turned into morgues and ruins.”

“Medical staff, including our own, are utterly exhausted and in despair.”

Since early December 2023, Israeli army attacks on Palestinian hospitals “have only increased. The Israeli army has continued to attack and besiege hospitals and healthcare centres; to deprive them of electricity and fuel crucial to maintain effective functioning and equipment; to obstruct them from receiving medical supplies, food and water; to force their evacuations and closure; and effectively to destroy them. . . . Israel has transformed Palestinian hospitals in Gaza from places of healing into ‘death zone[s]” and scenes of “bloodbath,” “death, devastation and despair.” Many hospitals have now become mere “place[s] where people are waiting to die.”

“There have now been more than 238 attacks on ‘healthcare’ in Gaza, in which over 61 hospitals and other healthcare facilities have been damaged or destroyed. . . .  The Israeli army has targeted hospital generators, hospital solar panels, and other life-saving equipment, such as oxygen stations and water tanks. It has also targeted ambulances, medical convoys and first responders. Health workers have been killed (on average four killed per day)[.]”

“The systematic destruction of Palestinian hospitals and the killing of specialist Palestinian doctors is not only impacting the care of Palestinians in Gaza at present, it is also undermining the prospect of a future Palestinian healthcare system in Gaza, destroying its capacity to rebuild and to care effectively for the Palestinian people in Gaza.”

“Doctors and medics have continued not only to be killed but also to be rounded up and disappeared by the Israeli authorities. They include the General Director of Al Shifa and his staff, seized and held incommunicado since 23 November 2023.”

“Palestinians have had to evacuate their sick, disabled and wounded in a forced march from the North to the South –– and then again from the South onwards –– dragging hospital beds behind cars, pushing wheelchairs, raising them on makeshift stretchers, or simply carrying them in their arms.”

Those hospitals which are still functioning are described as scenes from a “horror movie.” The critical shortages of staff and supplies –– including anaesthetics, analgesics, medicine and disinfectants –– have led not only to otherwise unnecessary amputations of limbs, but also to amputations without anaesthesia, often undertaken by flashlight. Pregnant women are also being subjected to caesareans without anaesthetic. Patients are being treated on dirty floors covered with blood, with family members having to stand holding saline bags, where saline is even available. There are insufficient staff and resources for adequate wound or post-operative wound care:  unclean wounds –– often infested with worms and flies –– rapidly become infected, necrotic or gangrenous. Patients plead for food and water. Even basic pain-management treatment is often unavailable, and patients are at risk of dying from treatable conditions.

Not to mention the hundreds of thousands of Gazans who still need routine medical care for chronic conditions but are now deprived of that care. And the more than 360,000 documented cases of communicable diseases in UNRWA shelters alone, brought on by unsanitary conditions, hunger and lack of clean water.

7. Destruction of Palestinian life in Gaza

On November 16, 15 UN Special Rapporteurs and 21 members of UN Working Groups observed that the level of destruction that had by then taken place of “housing units, as well as hospitals, schools, mosques, bakeries, water pipes, sewage and electricity networks . . . threatens to make the continuation of Palestinian life in Gaza impossible.”

As the South African Application describes:

Israel has destroyed not only individual homes, houses, and whole apartment blocks; it has destroyed entire streets, and entire neighbourhoods. It has targeted the foundational civil system in Gaza. Israel has targeted the Palace of Justice — the main Palestinian court building in Gaza — housing the Palestinian Supreme Court, the Constitutional Court, the Court of Appeal, the Court of First Instance, the Administrative Court and the Magistrates’ Court, as well as an archive of court records and other historical files. Israel has also significantly damaged the Palestinian Legislative Council complex. It has targeted Gaza City’s Central Archive building, containing thousands of historical documents and national records dating back over 100 years, and forming an essential archive of Palestinian history, as well as more modern records for Gaza City’s urban development. Israel has left Gaza City’s main public library in ruins.  It has also damaged or destroyed countless bookshops, publishing houses, libraries, and hundreds of educational facilities. Israel has targeted every one of Gaza’s four universities — including the Islamic University of Gaza, the oldest higher education institution in the territory, which has trained generations of doctors and engineers, amongst others  — destroying campuses for the education of future generations of Palestinians in Gaza. Alongside so many others, Israel has killed leading Palestinian academics, including: Professor Sufian Tayeh, the President of the Islamic University — an award-winning physicist and UNESCO Chair of Astronomy, Astrophysics and Space Sciences in Palestine — who died, alongside his family, in an airstrike; Dr Ahmed Hamdi Abo Absa, Dean of the Software Engineering Department at the University of Palestine, reportedly shot dead by Israeli soldiers as he walked away, having been released from three days of enforced disappearance; and Professor Muhammad Eid Shabir, Professor of Immunology and Virology, and former President of the Islamic University of Gaza, and Professor Refaat Alareer, poet and Professor of Comparative Literature and Creative Writing at the Islamic University of Gaza, were both killed by Israel with members of their families. 

Israel has damaged and destroyed numerous centres of Palestinian learning and culture, including: the Al Zafar Dmari Mosque and Center for Manuscripts and Ancient Documents; the Orthodox Cultural Centre; the Al Qarara Cultural Museum; the Gaza Centre for Culture and Arts; the Arab Social Cultural Centre; the Hakawi Society for Culture and Arts; and the Rafah Museum — Gaza’s newly opened museum of Palestinian heritage, housing hundreds of cultural and archaeological artefacts. Israel’s attacks have destroyed Gaza’s ancient history: eight sites have been damaged or destroyed, including the ancient port of Gaza (known as ‘Anthedon Harbour’ or ‘Al Balakhiya’) — the archaeological site of a 2,000-year-old Roman cemetery listed on both the Islamic Heritage List and the tentative UNESCO World Heritage List. Israel has also destroyed Gaza City’s ‘Old City’, including its 146-year-old historic houses, mosques, churches, markets and schools. It has also destroyed Gaza’s more recent history of more hopeful times, including the Rashad al-Shawa Cultural Center — site of a historic meeting between United States President Bill Clinton and Palestinian President Yasser Arafat 25 years ago — and an important cultural hub for Palestinians in Gaza, with its theatre, library and event space. And Israel is destroying Gaza’s future academic and cultural potential: alongside the 352 Palestinian schools it has damaged or destroyed, the 4,037 students and 209 teachers and educational staff it has killed, alongside the other 7,259 students and 619 teachers it has injured.

Israel has damaged or destroyed an estimated 318 Muslim and Christian religious sites, demolishing the places where Palestinians have worshipped for generations. Along with its destruction of the physical monuments to the history and heritage of the Palestinians in Gaza, Israel has sought to destroy the very Palestinian people who form and create that heritage: Gaza’s celebrated journalists, its teachers, intellectuals and public figures, its doctors and nurses, its film-makers, writers and singers, the directors and deans of its universities, the heads of its hospitals, its eminent scientists, linguists, playwrights, novelists, artists and musicians. Israel has killed and is killing Palestinian story-tellers and poets, Palestinian farmers and fishermen, alongside Gaza’s local legends, including 84- year-old Elham Farah, from one of Palestine’s oldest Christian families — a reputed accordionist and music teacher, known as ‘Mother Orange’ to generations of Palestinian music students for her shock of red hair, — shot dead by an Israeli sniper outside the Holy Family Church in Gaza City when she returned home for warm clothes, and was left to bleed to death.

Just as Israel is destroying the official memory and records of Palestinians in Gaza through its destruction of Gaza’s archives and landmarks, it is obliterating Palestinian personal lives and private memories, histories and futures, through bombing and bulldozing graveyards, destroying family records and photographs, wiping out entire multigenerational families, and killing, maiming and traumatising a generation of children.

The Israeli army [] is destroying the very fabric and basis of Palestinian life in Gaza. Israel is thereby deliberately inflicting on the Palestinian group in Gaza conditions of life calculated to bring about its destruction.

8. Imposing measures intended to prevent Palestinian births

More than 50,000 pregnant Gazan women give birth each month. Now these pregnant woman and their newborn babies are displaced, lack access to food and water, shelter, clothes, hygiene and sanitation and lack of access to health services. Doctors are having to perform ordinarily unnecessary hysterectomies on young women who “bleed out” after giving birth in order to save their lives, leaving them unable to have more children. Newborns up to three months old are dying of diarrhea, hypothermia and other preventable causes. Without essential equipment and medical support, premature and underweight babies have little to no chance of survival.

The relief sought

After its detailed recitation of the evidence of the Jewish State’s genocidal acts and intent, South Africa asks the ICJ to declare that Israel has breached its obligations as a State Party to the Genocide Convention by committing genocide in relation to Palestinians in Gaza; that Israel must cease forthwith all its genocidal acts; ensure that all persons committing, conspiring, attempting, inciting, or complicit in them are punished by Israeli or international tribunals; collect and conserve the evidence of genocide; perform the obligations of reparation in the interest of Palestinian victims, such as allowing the safe and dignified return of forcibly displaced or abducted Palestinians to their homes and providing for the reconstruction of what it has destroyed in Gaza; and offer assurances and guarantees of non-repetition of its Convention violations.

Request for “Provisional Measures”

In light of the “ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza” and the flagrancy of Israel’s violations of the Genocide Convention, the Application requests the preliminary relief of “Provisional Measures” under ICJ Rules and precedent that permit such measures when at least some of the genocidal acts alleged are “capable of falling within the provisions” of the Convention.  South Africa argues that the mass killing, the serious bodily and mental harm imposed, the deliberate infliction of conditions of life calculated to bring about the destruction of Palestinians in Gaza, and the imposition of measures intended to prevent births within the group, all qualify.

According to South Africa, previous decisions of the ICJ in Croatia’s and Bosnia’s genocide cases against Serbia have held that methods of physical destruction other than killing, employed to seek the death of the members of the group, are “capable of falling within the Convention’s provisions.”  These include deprivation of food, medical care, shelter or clothing, lack of hygiene, systematic expulsion from homes, or exhaustion as a result of physical exertion, subjecting the group to a subsistence diet; failing to provide for adequate medical care, and generally creating circumstances that would lead to a slow death, such as the lack of proper food, water, shelter, clothing and sanitation.  The facts detailed in South Africa’s Application support its contention that Israel has employed all these methods of physical destruction and will likely continue to do so.

If the Court agrees, it could order significant preliminary relief before the case comes on for hearing on the merits of South Africa’s claims.

ICJ jurisdiction

This case comes to the ICJ under its “Contentious Case” jurisdiction, which permits it to entertain a dispute between two UN member states who are also parties to a treaty containing a provision whereby, in the event of a disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court. South Africa and Israel are both UN members and parties to the Genocide Convention, Article IX of which provides that disputes between Contracting Parties relating to its interpretation, application or fulfilment, including the responsibility of a State for genocide, shall be submitted to the ICJ at the request of any of the parties to the dispute. South Africa recites that it has repeatedly made clear to Israel since October 30 that its actions in Gaza constitute genocide, most formally and directly by sending a “Note Verbale” on December 21 to the Israeli Embassy in South Africa. On November 17, South Africa was one of five nations to refer the genocide question to the International Criminal Court. Although Israel has not responded to the Note Verbale, its public rejection of any suggestion that its attacks on Gaza meet the legal definition of genocide, or that Israel has violated its obligations under the Convention, serves, under the Court’s statute and case law, to establish, in South Africa’s view, a cognizable “dispute” over the interpretation and application of the Convention, and the Court’s jurisdiction to hear and decide it. It appears to be a strong argument for jurisdiction, and Israel’s initial statement, while brief and preliminary, challenged South Africa’s claims as “baseless” on the merits but did not appear to contest the Court’s jurisdiction.

Potential outcomes and implications

With respect to the merits, South Africa’s lawyers have made a compelling case of Israel’s genocidal acts and intent, and for the preliminary relief sought. South Africa is not alone. The Presidents or other state officials of Algeria, Bangladesh, Bolivia, Colombia, Cuba, Egypt, Honduras, Iran, Iraq, Jordan, Libya, Malaysia, Namibia, Pakistan, Syria, Turkiye, Tunisia, and Venezuela – all State Parties to the Genocide Convention – have, according to the Application, described or referred to Israel’s actions as genocide. They might lend support to South Africa’s case before the ICJ.

As a member of the UN, Israel has an obligation to comply with the judgment of the ICJ in any “contentious case” to which it is a party. If it fails to do so, resort may be had to the Security Council, which can decide upon measures to be taken to give effect to the judgment. Of course, the United States has often protected Israel in the Security Council with its veto before and may well do so again in the event of preliminary Provisional Measures or a merits judgment adverse to Israel. To be sure, Israel ignored the Court’s 2004 non-binding advisory opinion that the separation wall was illegal, issued under its “Advisory Proceedings” jurisdiction. But that was different from the binding judgment that Israel may face here under the Court’s “Contentious Case” jurisdiction. And that was a wall. Genocide just might be different, especially if the Judgment is unanimous and as well documented and reasoned as South Africa’s Application.

Robert Herbst is a civil rights lawyer. He is co-chair of the board of ICAHD-USA and was chapter coordinator for Westchester Jewish Voice for Peace from 2014-2017. He has served as an independent investigator and prosecutor for the Special Court for Sierra Leone and the Residual Mechanism of the International Criminal Tribunal for Rwanda.