BEFORE you continue reading, understand this, if you don't already: South Africa's submission to the International Court of Justice yesterday was not to prove that Israel is guilty of genocide in Gaza. The essence was that a prima facie case can be made that acts that may amount to genocide are being committed, and that the court must urgently take interim measures to prevent them from continuing.
The case was brought under the Genocide Convention of 1948. This convention was established just after World War 2 and the Holocaust to diagnose genocide at an early stage and create a mechanism to stop it. South Africa did not want to wait until all Palestinians in Gaza were killed or forced to leave the territory and then request a judgment on whether it might be genocide.
South Africa asks the court to order Israel to immediately cease its military assault on Gaza; that the dire conditions in Gaza be alleviated by making food, water, electricity, medical services, sanitary services and shelter immediately available; and that no evidence of wrongdoing be destroyed.
And what about Hamas, you ask? Hamas is not a state, not a UN member, and therefore not part of the court's jurisdiction. Hamas leaders and soldiers will have to be dealt with by the International Criminal Court — officials of this court are already investigating possible war crimes by Israelis.
Israel stands with its back against the wall this morning. And its biggest ally, America, will find it difficult to continue its unconditional support.
The needle of justice moved yesterday.
The South African legal team's submissions were thorough, professional and without hyperbole, but the picture they painted based on official sources and statements was absolutely damning. More than 1% of Gaza's population, 23,210, most of them women and children, have died in Israel's bombing and other military actions in the last three months.
The team used videos and maps but emphasised that shocking images were not included to avoid a “theatre of spectacle".
Israel presents its case this morning in the Peace Palace in The Hague. The expectation is that it will not avoid a “theatre of spectacle" and will focus on the cruelty of the Hamas attack on October 7.
However, Israel must be careful to stick to the facts. The country's government and military have launched an unprecedented propaganda campaign in the last few months, mostly echoed by Western media, but most of it is false evidence.
No, 30 babies were not beheaded. No, a foetus was not cut from his mother's belly by a Hamas fighter. No, there was not a widespread campaign of rape — maybe not even a single rape.
The family of a woman allegedly raped and murdered by Hamas, Gal Abdush, strongly denies with evidence that she was raped.
On January 4, the Israeli newspaper Haaretz reported: “The police are having difficulty locating victims of sexual assault from the Hamas attack, or people who witnessed such attacks, and decided to appeal to the public to encourage those who have information on the matter to come forward and give testimony. Even in the few cases in which the organisation collected testimony about sexual offences committed on October 7, it failed to connect the acts with the victims who were harmed by them." חוקרת פשעי המין ב-7 באוקטובר: "אנחנו מאמינים שיש קורבנות שלא מסרו עדות. אני זמינה עבורם" - משפט ופלילים - הארץ (haaretz.co.il)
A young (Jewish) South African investigative journalist, Nathan Geffen, conducts an in-depth investigation into truth and falsehood in the Israel/Gaza conflict in today's edition. Read it here:
It is difficult to see that the world court, with the evidence before the 17 judges (including one from South Africa and one from Israel), will not recommend interim measures.
As Irish lawyer Blinne Ní Grálaigh, KC, pointed out, the court has issued such measures in recent cases against Serbia, Myanmar and Russia, and none of those was as serious and urgent as the Gaza case.
What particularly struck me about South Africa's team is that two of the senior advocates, Adila Hassim and Tembeka Ngcukaitobi, grew up as children under apartheid. And there they stand in their black robes on behalf of their country in the highest world court to fight for the humanity of others who are being treated as sub-human.
Hassim took the court calmly and methodically through the consequences of Israel's attack on Gaza: more than 7,000 people missing and probably buried under the rubble; 355,000 homes destroyed; more than nine out of 10 Palestinians in Gaza suffering from starvation; 60,000 injured without much chance of proper medical help; almost no sanitary services; a 2,000% increase in diarrhoea among children.
Ngcukaitobi highlighted the blatant genocide rhetoric of Israel's prime minister, Benjamin Netanyahu, President Isaac Herzog, cabinet members, generals, members of the Knesset and soldiers.
The minister of defence, Yoav Gallant, calls the Palestinians human animals, Netanyahu compares them to the biblical Amalekites who had to be exterminated with their offspring.
A video was played of Israeli soldiers dancing and singing in Gaza about how the “seed of the Amalekites" should be wiped out and that there is no such thing as “uninvolved civilians". The soldiers believe the genocide rhetoric of their leaders is acceptable and act on it, Ngcukaitobi said.
Grálaigh said there is now an abbreviation regularly seen in Gaza's hospitals: WCNSF — wounded child, no surviving family. More than 625,000 children have not been to school for three months, 90,000 students no longer go to university and a large number of teachers and lecturers are dead. Caesarean sections and amputations are done without anaesthesia.
“The entire reputation of international law to evenly protect the rights of people is at stake," she said.
British lawyer Vaughan Lowe said the genocide convention makes it clear that no genocide is ever permissible under any circumstances, no matter how heinous the offences committed against the state.
Whatever the court's ruling, it was a historic day for international law and human rights.
Nelson Mandela and Desmond Tutu would have been very proud.
♦ VWB ♦
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