The definition of genocide is simple: a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part. Its determination is much more complex. The legal threshold is high.
Nonetheless, judges at the international court of justice (ICJ) in The Hague could issue an interim ruling on the charges against Israel within weeks. A decision on which of the provisional measures requested by South Africa should be taken requires only that they find its case plausible, not proven, or that they believe there is a risk of genocide occurring. Resulting orders might not mean ordering a ceasefire, but restoring water supplies or punishing inciting statements.
The evidence of war crimes – ranging from indifference to the mass killing of civilians to using starvation as a weapon – has mounted by the day. So have the inflammatory and dehumanising statements made by Benjamin Netanyahu, his ministers and others. Israel will lay out its case to the UN’s highest court on Friday. However, its immediate response was not to contest the evidence, but to attack South Africa as acting as “the legal wing of Hamas” and committing “blood libel”. There is a widespread belief in Israel that it is obscene to use the genocide convention, created in response to the Holocaust, against the nation that arose from that horror, and following the 7 October attack by Hamas. Yet as South Africa made clear, self-defence can never justify action that amounts to genocide.
In addition to the bombing, which has killed at least 23,570 people according to Palestinian authorities, mostly women and children, South Africa’s lawyers cited bodily and mental harm including through the blocking of life-saving aid. They argue that there is “chilling, overwhelming and incontrovertible” evidence of intent, citing statements by Mr Netanyahu and other ministers and key figures that dehumanise Palestinians or refuse to distinguish between Hamas fighters and civilians.
The prime minister and others have invoked the Old Testament tale of Amalek: God commanded Saul to kill its people without sparing anyone. The defence minister, Yoav Gallant, spoke of “human animals”. The Israeli president, Isaac Herzog, said that “It’s an entire nation out there that is responsible.” Footage shows troops chanting “no uninvolved citizens”. Legislators have said far worse. Mr Netanyahu’s 11th hour announcement that Israel had no intention of displacing civilians permanently, and was fighting Hamas and not Palestinians, was entirely cynical – and arguably irrelevant: much of Gaza is now uninhabitable.
The urgency of this case is obvious. But its broader importance is to reinforce that the genocide convention is a matter for everyone. States have a responsibility not just to refrain from genocide, but to prevent it. The Gambia made this clear in bringing charges against Myanmar over the Rohingya. The US, UK and many others rightly supported that case, yet dismiss this one. There is not sufficient internal pressure for Israel to shift course, and while Joe Biden criticises civilian suffering and acknowledges indiscriminate bombing, he is not prepared to halt military aid.
Israel’s decision to contest this case, rather than boycott the court as in the past, shows that it is worried. Even an interim decision in South Africa’s favour would strike a symbolic blow. And while the ICJ has little means of implementing its judgment, individual countries or blocs might impose sanctions.
But whatever the judges decide, the civilian death toll and human suffering in Gaza and the words of Israeli ministers are unconscionable. That, and not this legal process, is ultimately what is destroying the standing of Israel and its western allies.
