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JANUARY 10, 2024<\/p>\n
A Crack in the 75-Year-Old Wall of Impunity: South Africa\u2019s Court Challenge of Israeli Genocide<\/strong><\/p>\n BY\u00a0CRAIG MOKHIBER \u2013 PHYLLIS BENNIS<\/strong><\/p>\n \u00a0<\/strong>1948 was a year of tragic irony.<\/strong><\/p>\n That year saw the adoption of both the Universal Declaration of Human Rights and the UN Convention on the Prevention and Punishment of the Crime of Genocide, together promising a world in which human rights would be protected by the rule of law. That same year, South Africa adopted apartheid and Israeli forces carried out the Nakba, the violent mass dispossession of hundreds of thousands of Palestinians. Both systems relied on western colonial support.<\/strong><\/p>\n In short, the modern international human rights movement was born into a world of racialized colonial contradictions. Seventy-five years later, the world is watching in horror as Israel has continued the Nakba through its months-long, systematic ethnic purge of Gaza \u2014 again with the complicity of powerful western governments led by the United States.<\/strong><\/p>\n The horrors of the original Nakba were met with decades of absolute impunity for Israel, feeding further violence. But this time, three decades since the overthrow of apartheid in South Africa, the post-apartheid \u201cRainbow Nation\u201d is taking the lead in challenging Israel\u2019s genocidal assault.<\/strong><\/p>\n On December 29, South Africa became the first country to file an application to the UN\u2019s high judicial arm, the International Court of Justice, instituting\u00a0genocide proceedings against Israel\u00a0for \u201cacts threatened, adopted, condoned, taken, and being taken by the Government and military of the State of Israel against the Palestinian people.\u201d<\/strong><\/p>\n In wrenching and horrifying detail, South Africa\u2019s 84-page document describes a litany of Israeli actions as \u201cgenocidal in character, as they are committed with the requisite specific intent\u2026 to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, and ethnical group.\u201d<\/strong><\/p>\n A Horrifying Civilian Toll in Gaza and the West Bank<\/strong><\/p>\n 2023 was the bloodiest year in the Palestinian territories since the destruction of historic Palestine and the founding of the state of Israel.<\/strong><\/p>\n In the first half of the year, Israeli assaults on Palestinians in the West Bank\u00a0had already reached a fever pitch, with successive waves of mass arrests, settler pogroms, and military attacks against Palestinian towns and refugee camps, including\u00a0the ethnic cleansing\u00a0of entire villages. At the same time, millions of civilians in Gaza were suffering unbearable hardship under a 17-year-long Israel-imposed siege.<\/strong><\/p>\n On October 7, Gaza-based militants launched a devastating attack on Israeli military and civilian targets and seized more than 200 military personnel and civilian hostages. In an appalling act of mass collective punishment, Israel immediately cut off all food, water, medicine, fuel, and electricity to the 2.3 million Palestinian civilians trapped in Gaza. Then it began a relentless campaign of annihilation through massive bombing and missile strikes followed by a ground-level invasion that brought shocking reports of massacres, extrajudicial executions, torture, beatings, and mass civilian detentions.<\/strong><\/p>\n More than 22,000 civilians and counting\u00a0have since been killed in Gaza, the overwhelming majority children and women \u2014 along with record numbers of\u00a0journalists\u00a0and\u00a0more UN aid workers\u00a0than in any other conflict situation. Thousands more are still trapped under the rubble, dead or dying from untreated injuries, and now more are dying from\u00a0rampant diseases\u00a0caused by Israel\u2019s denial of clean water and medical care, even as the Israeli military assault continues.\u00a0Eighty-five percent of all Gazans\u00a0have been forced from their homes. And now\u00a0Israeli-imposed starvation is taking hold.<\/strong><\/p>\n The Legal Standard for Genocide<\/strong><\/p>\n Genocide analysts and human rights lawyers, activists, specialists around the globe \u2014 no strangers to human cruelty \u2014 have been shocked by both the savagery of Israel\u2019s acts and by the brazen public declarations of genocidal intent by Israeli leaders.\u00a0Hundreds of these experts\u00a0have sounded the genocide alarm in Gaza, noting the point-by-point alignment between Israel\u2019s actions and its officials\u2019 stated intent on the one hand, and the prohibitions enumerated in UN Genocide Convention on the other.<\/strong><\/p>\n The South African application \u201cunequivocally 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.\u201d But it reminds the Court: \u201cNo armed attack on a State\u2019s territory, no matter how serious \u2014 even an attack involving atrocity crimes \u2014 can, however, provide any possible justification for, or defense to, breaches of the [Genocide Convention] whether as a matter of law or morality.\u201d<\/strong><\/p>\n Unlike many aspects of international law,\u00a0the definition of genocide is quite straightforward. To qualify as genocide or attempted genocide, two things are required. First, the specific intent of the perpetrator to destroy all or part of an identified national, ethnical, racial, or religious group. Second, commission of at least one of five specified acts designed to make that happen.<\/strong><\/p>\n South Africa\u2019s petition to the ICJ is filled with clear and horrifically compelling examples, identifying Israeli actions that match at least three of the five acts that constitute genocide when linked to specific intent. Those include killing members of the group, causing serious physical or mental harm to members of the group, and, perhaps most indicative of genocidal purpose, creating \u201cconditions of life calculated to bring about their physical destruction.\u201d As South Africa documents, Israel has shown the world, at levels\u00a0unprecedented in the 21st<\/sup>\u00a0century, what those conditions look like.<\/strong><\/p>\n For specific intent, South Africa points to\u00a0dozens of statements\u00a0made by Israeli leaders, including the President, Prime Minister, and other cabinet officials, and as well as Knesset members, military commanders, and more.<\/strong><\/p>\n Accustomed to decades of U.S.-backed impunity, Israeli officials have been emboldened, describing openly their intent to carry out \u201canother Nakba,\u201d to wipe out all of Gaza, to deny any distinction between civilians and combatants, to raze Gaza to the ground, to reduce it to rubble, and to bury Palestinians alive, among many other similar statements.<\/strong><\/p>\n Their deliberately dehumanizing language includes descriptions of Palestinians as animals, sub-human, Nazis, a cancer, insects, vermin \u2014 all language designed to justify wiping out all or part of the group. Prime Minister Netanyahu went so far as to invoke a Biblical verse on the Amalek, commanding that the \u201centire population be wiped out, that none be spared, men, women, children, suckling babies, and livestock.\u201d<\/strong><\/p>\n The U.S. May Also Be Complicit in Israel\u2019s Genocide<\/strong><\/p>\n The petition to the ICJ is sharply focused on Israel\u2019s violations of the Genocide Convention. It does not deal with the complicity of other governments, most significantly of course the role of the United States in funding, arming, and shielding Israel as it carries out its genocidal acts.<\/strong><\/p>\n But the active role of the United States in the Israeli onslaught, while hardly surprising, has been especially shocking. As a State Party to the Genocide Convention, the U.S. is obliged to act to prevent or stop genocide. Instead, we have seen the United States not only failing in its obligations of prevention, but instead actively providing economic, military, intelligence, and diplomatic support to Israel while it is engaged in its mass atrocities in Gaza.<\/strong><\/p>\n As such, this is not merely a case of U.S. inaction in the face of genocide (itself a breach of its legal obligations) but also a case of direct complicity \u2014 which is a distinct crime under the Genocide Convention. The\u00a0Center for Constitutional Rights, on behalf of Palestinian human rights organizations and individual Palestinians and Palestinian-Americans, has filed a suit in U.S. federal court in California focused on U.S. complicity in Israel\u2019s acts of genocide.<\/strong><\/p>\n South Africa\u2019s Genocide Complaint is a Rallying Cry for Civil Society<\/strong><\/p>\n In a situation such as this, framed by shocking Western complicity on one side and a massive failure of international institutions fed by U.S. pressure on the other, South Africa\u2019s initiative at the ICJ may hold significance beyond the Court\u2019s ultimate decision.<\/strong><\/p>\n This case comes in the context of the extraordinary mobilization of protests, petitions, sit-ins, occupations, civil disobedience, boycotts, and so much more by human rights defenders, Jewish activists, faith-based organizations, labor unions, and broad-based movements across the United States and around the world.<\/strong><\/p>\n As such, this move puts South Africa, and potentially the ICJ itself, on the side of the global mobilization for a ceasefire, for human rights, and for accountability. One of the most important values of this ICJ petition may therefore be in its use as an instrument for escalating global civil society mobilizations demanding their governments abide by the obligations imposed on all parties to the Genocide Convention.<\/strong><\/p>\n Predictably, Israel has already rejected the legitimacy of the case before the Court. Confident that the U.S. and its allies will not allow Israel to be held accountable, the Israeli government is defiantly continuing its bloody assault on Gaza (as well as the West Bank). If Israel and its Western collaborators are once again successful in blocking justice, the first victims will be the Palestinian people. Then the credibility of international law itself may be lost as collateral damage.<\/strong><\/p>\n But South Africa\u2019s ICJ action has opened a crack in a 75-year-old wall of impunity through which a light of hope has begun to shine. If global protests can seize the moment to turn that crack into a wider portal towards justice, we may just see the beginnings of real accountability for perpetrators, redress for victims, and attention to the long-neglected root causes of violence: settler-colonialism, occupation, inequality, and apartheid.<\/strong><\/p>\n Craig Mokhiber is an International human rights lawyer and former Director of the New York Office of the UN\u2019s High Commissioner for Human Rights, who stepped down from his post in 2023 and penned a now-viral letter on unfolding genocide and the UN\u2019s failures.\u00a0Phyllis Bennis is a fellow of the Institute for Policy Studies and serves as international adviser to Jewish Voice for Peace.<\/em><\/strong><\/p>\n