Genocides are never declared in advance. But this court has the benefit of the past 13 weeks of evidence that shows, incontrovertibly, a pattern of conduct and related intention that justifies a plausible claim of genocidal acts.
This is according to Dr Adila Hassim SC, who is part of South Africa’s legal team who yesterday presented its case to the International Court of Justice (ICJ) in The Hague, Netherlands, against Israel for what it said were "genocidal" acts in Gaza.
The ICJ application related to alleged violations by Israel of its obligations under the Genocide Convention. South Africa argued that "Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza".
South Africa presented a strong case in just over three hours yesterday, with Israel due to present its case today.
There are several provisional measures that South Africa is requesting, which include that the State of Israel must immediately suspend its military operations in and against Gaza.
Hassim told the court that for the past 96 days, Israel had subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare.
Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea.
They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall.
Hassim said this conduct rendered essentials to life unobtainable.
She said it was not necessary for the court to come to a final view on the question of whether Israel’s conduct constituted genocide.
It was necessary to establish only whether at least some of the acts alleged were capable of falling within the provisions of the Convention regarding genocide.
“On analysing the specific and ongoing genocidal acts complained of, it is clear that at least some, if not all, of these acts fall within the Convention’s provisions,” she said.
She added that as the UN Secretary-General explained five weeks ago, the level of Israel’s killing was so extensive that “nowhere is safe in Gaza”.
“As I stand before you today, 23 210 Palestinians have been killed by Israeli forces during the sustained attacks over the last three months, at least 70% of whom are believed to be women and children. Some 7 000 Palestinians are still missing, presumed dead, under the rubble.”
Hassim said Palestinians in Gaza were subjected to relentless bombing, wherever they went. They were killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families.
They have been killed if they failed to evacuate, in the places to which they fled, and even while they attempted to flee along Israeli declared “safe routes”.
The level of killing was so extensive that those whose bodies were found were buried in mass graves, often unidentified.
In the first three weeks alone following October 7, Israel deployed 6 000 bombs per week. At least 200 times, it had deployed two-thousand-pound bombs (907kg) in southern areas of Palestine designated as “safe”. These bombs had also decimated the North, including refugee camps.
“Two-thousand-pound-bombs are some of the biggest and most destructive bombs available. They are dropped by lethal fighter jets that are used to strike targets on the ground, by one of the world’s most resourced armies.”
“This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No one is spared, not even newborn babies. The scale of Palestinian child killings in Gaza is such that UN chiefs have described it as ‘a graveyard for children’.
“The devastation is intended to and has laid waste to Gaza beyond any acceptable legal, let alone humane, justification,” she said.
In arguing that there were clearly genocidal acts on the part of Israel, Hassim said that that country had deliberately imposed conditions on Gaza that could not sustain life, and were calculated to bring about its physical destruction.
“There is no indication at all that Israel accepts responsibility for rebuilding what it has destroyed… The situation is such that experts are now predicting that more Palestinians in Gaza may die from starvation and disease than airstrikes,” Hassim added.
Advocat Tembeka Ngcukaitobi SC, meanwhile, argued that Israel had a genocidal intent against the Palestinians living in Gaza.
“That is evident from the way in which Israel’s military attack is being conducted. It is systematic in its character and form; the mass displacement of the population of Gaza, herded into areas where they continue to be killed, and the deliberate creation of conditions that ‘lead to a slow death’.”
Ngcukaitobi said there was also the clear pattern of conduct: the targeting of family homes and civilian infrastructure; laying waste to vast areas of Gaza; the bombing, shelling and sniping of men, women and children where they stand; the destruction of the health infrastructure; and, lack of access to humanitarian assistance.
“So much so, that as we stand today, 1% of the Palestinian population in Gaza has been systematically decimated, and one in 40 Gazans have been injured, since 7 October. These two elements alone are capable of evidencing Israel’s genocidal intent in relation to the whole, or part of the Palestinian population in Gaza.”
The court was also told that those wounded by Israel in Gaza were being deprived of life-saving medical care: Gaza’s healthcare system – already crippled by years of blockade and prior attacks by Israel – was unable to cope with the sheer scale of the injuries.
Israel was blocking the delivery of life-saving aid, including essential medical kits for delivering babies, in circumstances where an estimated 180 women were giving birth in Gaza each day.
Irish lawyer, Blinne Ní Ghrálaigh KC, who formed part of South Africa’s legal team, told the court that there was an urgent need for provisional measures to protect Palestinians in Gaza from the irreparable prejudice caused by Israel’s violations of the Genocide Convention.
She pointed out that the United Nations Secretary-General and its chiefs described the situation in Gaza variously as “a crisis of humanity”, a “living hell”, a “bloodbath”, a situation of “utter, deepening” and unmatched “horror”, where “an entire population is “besieged and under attack, denied access to the essentials for survival”, “on a massive scale”.
As the UN’s Under Secretary-General for Humanitarian Affairs recently stated: “Gaza has become a place of death and despair… Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment.
“The daily statistics stand as clear evidence of the urgency and the risk of irreparable prejudice: on the basis of current figures, on average 247 Palestinians are being killed and are at risk of being killed each day, many of them blown to pieces.”
Ghrálaigh said they included 48 mothers each day — two every hour; and over 117 children each day, leading UNICEF to call Israel’s actions a “war on children”.
In calling for the court's urgent intervention, she said more mass graves would be dug if nothing is done about the situation.
“Each day yet more desperate people will be forced to relocate from where they are sheltering, or will be bombed in places they had been told to evacuate to. Entire multi-generational families will be obliterated; and yet more Palestinian children will become ‘WCNSF’: ‘Wounded Child – No Surviving Family’ — the terrible new acronym borne out of Israel’s genocidal assault on the Palestinian population in Gaza," she said.