It is day 100 of the Israeli Government and Military attack on Gaza. According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), 100,000 Palestinians have been killed, reported missing or wounded since October 7th, 2023.
This weekend, worldwide protests were organised in solidarity with the Palestinian people as part of a Global Day of Justice. Protests have occurred around the world, e.g., in Washington DC, London, Rome, Paris, Milan, Jakarta, Dublin, Indonesia, Johannesburg, Edinburgh, Karachi, Pakistan and Kuala Lumpur, among many other places.
A total of 31,497 Palestinians in the Gaza Strip have been killed as of today, 13 January 2024, Euro-Med Monitor estimated. Of those killed in the Israeli air and artillery attacks on the Strip, 28,951 (92%) were civilians, including 12,345 children, 6,471 women, 295 health personnel, 41 civil defense personnel, and 113 journalists. Meanwhile, 61,079 individuals have been injured, hundreds of them critically.
According to the most recent OCHA report, those missing include those reported missing and trapped under rubble and those arrested and subsequently disappeared by the IDF. 1,955 million people (85% of the total population of the Gaza Strip) have been displaced (some several times as the IDF has penetrated the Gaza Strip and continued bombing further south). 69,700 housing units have been completely destroyed, and 187,300 housing units have been partially destroyed.
Many have been forced to move multiple times as the focus of the IDF campaign shifts. About 1.4 million people are sheltering in UNRWA facilities, with most of the rest staying with friends, family, or strangers, or sleeping rough. About 1 million people – half of Gaza’s population – are now living in and around the southern border settlement of Rafah. About 280,000 lived there before the war began. The Council on Foreign Relations estimated that by early December, only about 1,100 people had been allowed to leave Gaza via the Rafah crossing to Egypt.
The situation in the Gaza Strip prior to October 7th 2023, was already dire due to 16 years of Israeli government and military blockades and 4 outbreaks of war with Israel. There was already 45% unemployment and excessive poverty. Attacks on factories and industrial sites in Gaza will only increase the levels of poverty and unemployment. In 2022, the UNCTAD (UN Commission for Trade and Development) report on the socio-economic situation of Palestinians noted:
In addition, as detailed in this report, the inhabitants of the Gaza Strip are confined in one of the most densely populated spaces in the world, in chronic conflict conditions, with inadequate access to clean water, without electricity for half the day and without a proper sewage system. Two-thirds of the population live in poverty, with a 41 per cent probability of dropping out of the labour force and, for those who continue to seek work, there is a 45 per cent probability of being unemployed.
According to B’tselem:
Everyone in Gaza is going hungry. About 2.2 million people are surviving day by day on almost nothing, routinely going without meals. The desperate search for food is relentless and usually unsuccessful, leaving the entire population – including babies, children, pregnant or nursing women and the elderly – hungry.
The Gaza Strip was already in the throes of a humanitarian crisis before the war, mainly due to Israel’s 17-year blockade. About 80% of the population relied on humanitarian aid. Some 44% of households were food insecure and another 16% were at risk of food insecurity. Given this starting point, it is clear why Gaza plummeted into a full-blown catastrophe so quickly.
Displacement of north Gazans towards the south means that there is insufficient food and water, sewage treatment facilities, medical support (which also means that disease is spreading), insufficient housing and an ongoing humanitarian crisis. Despite some humanitarian aid getting through, it is insufficient to ward off the disaster. Meanwhile, bombing persists, and civilian casualties are rising despite the Israeli government and military’s claims that they are trying to avoid civilian casualties.
Moreover, as most eyes are on Gaza, as of January 10th, 2024, there have been over 347 Palestinians killed in the West Bank and East Jerusalem, and more than 4000 Palestinians injured there, according to the UN (an earlier report from the UN in November can be found here). These deaths were carried out by both the IDF and Israeli settlers; there have been raids in Ramallah, Nablus and Jenin (as well as in its refugee camps). 16 isolated communities in the Occupied Territories have been forcibly transferred from their homes, according to B’Tselem, by armed right-wing Israeli settlers.
The Genocide Case at the International Court of Justice
As people know, South Africa has brought a case against Israel on charges of genocide and failure to prevent genocide at the International Court of Justice (ICJ). Other countries and groups have joined in support of the charges, including Bolivia, Jordan, The Maldives, Turkey, Morocco, Namibia, Pakistan, Colombia and Brazil. Other groups of countries have welcomed the charges including the Arab League and The Organisation of Islamic Countries.
Additionally, this is only the second time that a state not involved in a conflict has brought a case against a state involved in a conflict, the first being The Gambia against Myanmar concerning the genocide of the Rohingya in 2019. Other cases still being considered relate to Gambia-Myanmar and Russia-Ukraine. It took 14 years before the Bosnia-Serbia case was decided by the ICJ.
Unlike the International Criminal Court (ICC), which examines charges brought against individuals and is not linked to the UN, the ICJ relates to charges brought by a state against another state, and, in this case, it is because both South Africa and Israel are both signatories to the International Convention on Genocide. It is also important to note that the ICC has opened a separate case against both Israel and Hamas relating to violations of International Humanitarian Law.
The definition of genocide as per the Convention on the Prevention and Punishment of the Crime of Genocide (1948):
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.”
To prove genocide there are two elements that must be demonstrated:
“1. a mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
2. A physical element, which includes the following five acts, enumerated exhaustively:
Killing members of the group
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
Imposing measures intended to prevent births within the group
Forcibly transferring children of the group to another group
The intent is the most challenging element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnic, racial or religious group. Cultural destruction does not suffice, nor does an intention to disperse a group simply. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.
Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”
Crucial is whether what is happening in Gaza is deliberately done to inflict conditions of life designed to bring about the physical destruction of Palestinians (in whole or in part). We must examine the broad context: the history of Gaza, the bombings, the later invasion, and the forced displacement. Also relevant is the insufficiency of goods in Gaza to ensure survival and continued bombing. Israel claims that their target is Hamas despite killing Palestinian civilians and rendering Gaza uninhabitable, with the Israeli military inflicting starvation and disease on the civilian population; the majority of those killed have been women and children.
The question becomes one of establishing the intent of the Israeli government and military. Given their actions and the statements of politicians whereby the Palestinians in Gaza are being held responsible for the actions of Hamas, the conclusion seems obvious; yet, the decision whether to proceed with a further examination of the situation and whether provisional measures (such as an enforced ceasefire) should be implemented lies in the hands of the ICJ.
Since the charges are only for genocide and failure to prevent genocide, other war crime changes are not considered by the ICJ, such as war crimes against protected people (e.g., deaths and attacks against medical professionals, aid workers, and journalists), protected buildings (e.g., hospitals, schools, and religious buildings) and accusations of collective punishment of the Palestinians for the actions of Hamas. These war crimes will likely be considered in a separate case that has been opened at the ICC.
As part of the filing of charges of genocide and failure to prevent genocide, provisional measures are included by South Africa to prevent further acts of genocide. This case is being treated urgently to determine if genocide is being committed, and if so, a case will be formally opened. If it is accepted that the accusation of genocide is warranted, the ICJ may put forward provisional measures. According to Human Rights Watch, the provisional measures are something that can be done immediately while examination of whether genocide has been committed is ascertained.
While the case may take several years to reach a final ruling, South Africa has asked the court to order provisional measures to protect the Palestinian people in Gaza from further harm, ensure Israel’s compliance with the Genocide Convention, and safeguard South Africa’s ability to have the case fairly adjudicated. South Africa has asked the ICJ to issue these measures “as a matter of extreme urgency,” saying that Palestinians in Gaza are in “urgent and severe need of the Court’s protection.” Arguments on the request for provisional measures are the subject of the January 11 and 12 hearings.
Among the provisional measures sought are for Israel to immediately suspend its military operations in Gaza and abide by its obligations under the Genocide Convention. South Africa also seeks measures to prevent the destruction and ensure the preservation of any evidence related to the underlying case – including by giving fact-finding missions, international mandates, and other bodies access to Gaza.
The South Africa application begins with the following charges (here is the application in full):
This Application concerns acts threatened, adopted, condoned, taken and being taken by the Government and military of the State of Israel against the Palestinian people, a distinct national, racial and ethnical group, in the wake of the attacks in Israel on 7 October 2023. South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’), 1 whether as a matter of law or morality. The acts and omissions by Israel complained of by South Africa 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, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.
The acts and omissions by Israel complained of by South Africa 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, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.
South Africa’s position is that despite Hamas’s actions on October 7th, 2023, what is happening now is genocide and the failure to prevent genocide, and nothing can justify the commission of genocide. The Israeli government blames Hamas for the situation, denies genocide and claims its actions constitute the self-defence of Israel. The Israeli government also argues that South Africa’s case is a “profound distortion”, barely distinguishable from that of Hamas; rejected the provisional measure for an immediate ceasefire as obstructing Israel from defending itself and accused the South African government of antisemitism. (This final claim assumes that somewhere in the tradition of Rabbinical Judaism, the murder of innocent civilians, the majority women and children, is somehow acceptable. Arguing that the accusation of genocide is antisemitic is antisemitic, implying that this is something consistent with Judaism rather than the actions of the government and military of Israel.)
Whether these charges succeed is important and could shift the discussion around how international humanitarian law, as well as genocide, are raised and prosecuted. Even if it fails, the Israeli military and government are forced to defend themselves. Moreover, this has implications for their supporters and allies, like the US.
ICJ Rulings have no independent enforcement power
We can expect the ICJ decision within weeks, both on whether what is happening is genocide and hence require further investigation (which will take years) and whether the ICJ should impose provisional measures against the Israeli government and military. Even if the ICJ imposes provisional measures like ordering an immediate ceasefire, they have no powers of enforcement, and it is up to the members of the UN Security Council to uphold its judgement, with permanent members of the Security Council holding veto power.
Even if the ICJ calls for provisional measures, Israel may ignore them, and the US (who has been vetoing demands for an immediate ceasefire at the Security Council and allowing the Israeli government to run roughshod over International Humanitarian Law for some time) may veto. Considering how slowly the ICJ and ICC move on such cases, it could take years for a full decision on genocide. The US government is already complicit with the actions of the Israeli government and the IDF in this genocidal war. Ignoring potential provisional measures will further alienate the US, even from its closest allies.
The US has not only been vetoing Security Council resolutions demanding an immediate ceasefire but also providing weaponry and funds for Israel to continue this aggression against the Palestinians in Gaza (they may claim it is against Hamas, but the most significant number of victims are civilians). The US can repeat the nonsense of mitigating civilian losses, but at this point, one wonders who believes them or the Israeli government and military. How long will the US allow Israel to continue its destruction of the Gaza Strip and genocide of Gazans under the pretext of “defending itself”? At least this puts further pressure on the US; defending the indefensible will only further weaken their credibility internationally as “defenders of human rights.” Allowing this war to continue only will allow the further commission of genocide.
There is also “considerable concern” about avoiding a full-blown regional conflict. In allowing the continuation of the Gaza war, bilateral attacks between Israel and Hezbollah across the Israel-Lebanon border (including the assassination of Saleh al-Arouri, the leader of Hamas in exile), the bombing of the Yemeni Houthi’s military following sea raids and attacks on transport ships, one wonders how much a further escalation is being avoided. The rapidity with which the US (and UK) acted against the Yemeni Houthi’s attacks on ships compared to how they are opposing a ceasefire in Gaza has demonstrated clearly that so-called concern with civilian losses is nothing compared to a threat to international trade. Usually, the powers that be pretend to be subtle, but it seems they cannot even be bothered anymore.
Standing in solidarity with the Palestinians remains a priority; most importantly, Palestinians must have the right to determine their own future. It is the Palestinians that must make decisions on their lives, not Israel, not the US and not its allies; the Palestinians must have the final say… having faced ethnic cleansing since 1948, it is way past time that they have this basic right of self-determination. They have lost far too much, and this is an endless cycle of violence. Solidarity is essential, and we must stand with the oppressed, never the oppressors.
Ceasefire now! Palestine must be free!
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