South Africa’s compelling case against Israel for genocide at ICJ

Today, South Africa made a remarkably persuasive case against Israel for committing acts of genocide and for the ICJ to implement immediate restraining measures on Israel pending legal proceedings. As a criminal defense attorney who has also worked on an international prosecutorial team with a UN criminal tribunal, I am familiar with how this case is made and South Africa made a clear case that Israel has committed acts of genocide in Gaza; and that Israel’s potential defenses are meritless.

South Africa, a nation whom itself survived apartheid, made a powerful argument by starting at the beginning and reminding the Court that this did not start on October 7th. They provided important context for Israel’s latest atrocities starting with the Nakba since 1948, the 75-year apartheid, more than 50 years of occupation, and a 16-year siege of Gaza. Context matters, it is what distinguishes a hate crime from a simple assault, a 1st degree murder from an accidental manslaughter, a genocide from a poorly conducted military operation.

After providing this context, South Africa continued to present the shocking details of Israel’s attacks the past 3 months, the numerous statements of genocidal intent by Israeli military and political leaders, and their denial of humanitarian aid, food, electricity, and water into Gaza. For any criminal defendant, this case would be indefensible. It is not a whodunnit, it’s not a question of motive or intent, it’s simply a question of whether enough Gazan people have been killed and injured badly enough, yet. The same three things that would make a criminal defendant guilty anywhere in the world, are the standards by which the ICJ judges Israel.

Israel’s statements showing intent to commit genocide are defenseless.

First, when a criminal defendant makes explicit and repeated statements of criminal intent, those are typically used against them in court. South Africa picked a few to highlight today, including Israel’s Defense Minister, Yoav Gallant, stating “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly.” As well as calls from members of Israel’s parliament to wipe Gaza off the face of the earth, and Netanyahu’s reference to Gazans as Amalek, a religious reference to a group who were ordered to be attacked, sparing no one— not men, women, children, or infants.

Now Israel could argue that Israel’s military and political leaders’ genocidal statements were just hyperbole, letting off steam, that they didn’t mean them. The problem for Israel is that after their military and political leaders made explicit statements of an intent to commit a genocide in Gaza, South Africa has compelling argued that they then committed mass atrocities in line with those statements, with their soldiers on the ground compulsively filming themselves committing these illegal acts, celebrating them, and repeating their leaders’ genocidal statements. In any courtroom in the world this would tend to make the intention of the original statements very clear. In many possible cases of genocide, it is difficult to prove the required intent to exterminate members of the group. As South Africa pointed out, here, it is explicitly and publicly stated among all levels of leadership.

Israel’s acts of genocide are defenseless.

South Africa laid out a forceful argument that Israel committed acts of genocide during and after all of the statements of genocidal intent made by Israeli leaders. They succinctly described the harrowing impact of Israel’s attacks, “On average 247 Palestinians are being killed and are at risk of being killed each day. Many of them literally blown to pieces. They include 48 mothers each day, 2 every hour. And over 117 children each day…On average 629 people are injured each day…Each day over 10 Palestinian children will have 1 or both legs amputated, many without anesthetic…”.

Israel has described this as self-defense, a legal defense for criminal defendants. But, as South Africa highlights, Gaza has approximately 2.3 million people, in one of the most densely populated places in the world. Using bunker buster bombs and 2,000 lb bombs in residential areas, including areas declared safe by Israel, is how they achieved the above numbers. As I am sure miliary experts will testify in future proceedings, Israel is one of the most highly resourced militaries in the world with top-of-the-line equipment. Precision is required to avoid war crimes, and they have the absolute capacity for precision attacks. The 2,000 lb bombs they rain down on Gazan homes and refugee camps were chosen from their massive artillery of weapons. And they have caused entirely predictable destruction to life and infrastructure. As South Africa frankly pointed out, regardless of Hamas’s actions on October 7th, Israel cannot commit genocide. Genocide is never justified and no exceptions can be made for Israel.

Israel’s denial of humanitarian aid, water, food etc. is defenseless.

South Africa painfully described how Israel has denied humanitarian aid, water, food etc. This has caused a collapse of the health care system, leading to malnutrition, lack of water, spread of disease and the “worst” humanitarian crisis the head of the World Food Programme has ever seen in his life, anywhere in the world. Israel’s position appears to be that denying humanitarian aid is self-defense, that the starvation of innocent families and children is just a side effect of trying to starve Hamas. The laws of war have never allowed that. If they did, then every nation and person ever charged with genocide had an argument that their genocidally drastic measures were necessary for their aims. Those arguments have failed.

For supporters of Palestine and human rights, who had begun to despair at the daily atrocities in Gaza, South Africa’s case against Israel and its strong presentation today have instilled hope. The evidence here is overwhelming. States have been convicted of genocide for less. South Africa cited many cases where provisional measures were granted, and those cases presented far less human suffering and destruction. To find against them would be a mockery of all precedent and the international legal system itself.

MLFA expresses gratitude to South Africa for the diligent legal work they put in to preparing this case, it was an act of humanity and solidarity. As they said today, “The world should be absolutely horrified, there is no safe space in Gaza. The world should be ashamed.”

Sufia Khalid is a Staff Attorney in MLFA’s Federal Criminal Defense department where she represents individuals unjustly and discriminatorily charged with national security related crimes, both at the trial level and in appellate courts around the country. Sufia previously worked in the Office of the Prosecutor at the United Nations criminal tribunal on war crimes committed by the Khmer Rouge, including genocide. She has a background in international law and public defense and has been with MLFA since 2019.