Mon 28 October 2024:
Lawyers submit hundreds of pages of evidence to meet Monday ICJ deadline to prove, on paper, that Israel is guilty of genocide in Gaza.
Johannesburg, South Africa – While South African legal researchers were in an undisclosed location last week, racing against time to finalise hundreds of pages of evidence proving Israel’s intent to commit genocide in Gaza, in Israel, leaders gathering near the Gaza border were calling for the besieged and bombarded Strip to be emptied of Palestinians.
During the “preparing to settle Gaza” conference, held at a restricted military zone in Be’eri last Monday, Israeli Security Minister Itamar Ben-Gvir was recorded calling for the “migration” of Gaza’s current inhabitants, and the possibility of future Israeli settlement expansion there – something considered illegal under international law.
“[We will] tell them, ‘we are giving you the chance, leave from here to other countries’,” Ben-Gvir said, while Israeli forces continued their more than yearlong bombardment of Gaza. “The Land of Israel is ours.”
South African diplomats assert that statements like these offer undeniable evidence of Israel’s genocidal intent – something they must prove before the International Court of Justice (ICJ) in an ongoing case.
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Monday (October 28) is the deadline for South Africa to submit a detailed memorial against Israel to the ICJ, lawyers and diplomats told Al Jazeera. Its legal submission aims to definitively establish that Israel’s military actions in Gaza amount to genocide.
Despite new evidence emerging daily, senior South African officials instructed the legal team to stick to what they had already collected to meet the approaching deadline.
The legal team is however confident that the hundreds of pages of evidence are more than enough to sustain their case.
“The problem we have is that we have too much evidence,” Ambassador Vusimuzi Madonsela, South Africa’s representative to The Hague, explained to Al Jazeera.
Zane Dangor, the director-general of South Africa’s Department of International Relations and Cooperation, said: “The legal team will always say we need more time, there’s more facts coming. But we have to say you have to stop now. You [have] got to focus on what you have.”
The 500-page South African legal submission aims to expose a pattern of mass casualties in Gaza, where almost 43,000 Palestinians have been killed since October 2023, which South African officials argue exceeds any proportional military response to Hamas’s attacks on October 7 last year.
South Africa has maintained since its interim application in December last year that Israel’s intent goes beyond military objectives, aiming instead at the wholesale depopulation of Gaza through extreme violence and forced displacement.
In its initial application, South Africa submitted 84 pages pleading with the court to find Israel guilty of suspected genocide and order it to, among other things, halt its invasion in Gaza.
During oral arguments in The Hague, the South African legal team relied on statements made by Israeli politicians at the time, video clips of the destruction in Gaza and maps that showed how Palestinian land had been encroached on.
‘Unprovable’?
The ICJ set firm its Monday deadline for South Africa to prove, on paper, that Israel is guilty of genocide.
However, this is a feat described by international law experts as “nearly unprovable”.
Professor of international law at the University of Cape Town, Cathleen Powell, said South Africa’s challenge is to prove genocidal intent on behalf of the state of Israel and to show a link between comments made by officials and the programmatic nature of the destruction of Gaza.
“If they can find genocidal statements from state officials and show that that directly led to a particular programme that led to destruction on the ground, then that’s probably a very strong case, but it is a very difficult link to prove.”
She said there was no doubt war crimes were being committed in Gaza, but invoking the genocide convention meant that South Africa had to prove that the state was responsible.
“It is difficult to attribute the intent of officials to the state. You have to find something different on behalf of the state [of Israel] to show genocidal intent,” Powell explained.
Legal insiders said if South Africa fails to prove dolus specialis – the specific intent to destroy a group, either in whole or in part – its case would fall flat.
South Africa’s Dangor said his country’s case was rock solid.
“It’s a textbook case of genocide,” Dangor said, adding that the “intent is clear”.
“Genocidal acts without intent can be crimes against humanity. But here, the intent is just front and centre.
“You are seeing statements from leaders, but also ordinary Israelis saying ‘kill all Gazans, even the babies’,” he said.
‘Working flat out’
Working within tight deadlines, South Africa assembled an elite team of legal minds, including three top senior counsels from South Africa, an international law professor, a British barrister, and numerous junior counsel and researchers.
Close to 100 people have been working on different parts of the case for the last nine months, insiders detailed.
While top government officials provided oversight, teams worked separately in drafting the document, which has been marked “Top Secret” until it is filed before the court.
“We have been working flat out to put together the submission,” Ambassador Madonsela noted.
Tasked with project management, a respected Johannesburg law firm handled the intricate logistical elements, chapter by chapter, including translations and citation verification.
Junior counsel concentrated on drawing a clear link between Israeli officials’ rhetoric and the military actions in Gaza, while senior lawyers crafted the case’s legal arguments to show a systematic campaign.
They had to condense thousands of pages of evidence of “unthinkable brutality” into thematic legal arguments, Dangor explained.
Over nine months, legal researchers were instructed not only to list examples of Israel’s terrible killings and destruction in Gaza but to focus the evidence on what would clearly depict what South Africa argues is “Israel’s ultimate objective” to obliterate Gaza and force out the Palestinians living there.
In the hundreds of pages due to be submitted, South Africa listed a litany of examples where Israeli politicians and senior government officials spoke about “wiping out Gaza” and “forcing Palestinians out”.
South Africa interprets these statements as clearly articulating genocidal intent.
For instance, remarks by Israeli Defence Minister Yoav Gallant in November 2023, in which he referenced plans for Gaza while alluding to possible actions against Lebanon, are positioned as evidence of a broader Israeli agenda.
“I am saying here to the citizens of Lebanon, I already see the citizens in Gaza walking with white flags along the coast … If Hezbollah makes mistakes of this kind, the ones who will pay the price are, first of all, the citizens of Lebanon. What we are doing in Gaza, we know how to do in Beirut,” Gallant said at the time.
While the minister’s comments were cited as examples of genocidal intent, the legal team opted not to argue that Israel’s now invasion of Lebanon was further proof that “it was Israel’s intention all along”.
“That will come in oral hearings,” Dangor said when asked about it.
High-stakes case
Dangor explained that the case has become a landmark in international law for several reasons.
First, it is unprecedented that genocide allegations are being presented to an international tribunal while the atrocities continue to unfold – rather than retrospectively, as seen in cases like the Srebrenica or Rwanda genocides.
Secondly, the case benefits from the real-time documentation of alleged genocidal acts, which captures intent and execution with immediate clarity.
Dangor said this is markedly different from historical cases where evidence emerged much later and in fragments.
Additionally, he emphasised that South Africa’s case uniquely implicates a Western-backed state.
This factor raises the stakes considerably and challenges longstanding assumptions in international legal responses to genocide.
According to Dangor, genocidal acts without intent may fall under crimes against humanity, but in this case, the intent is unambiguously prominent.
South African President Cyril Ramaphosa expressed confidence in the submission, stating before Parliament in August that he believed the case was solid and was hopeful about its outcome. “We are confident that we have a strong case to prove that genocide is happening in Palestine,” he said at the time.
Once submitted, Israel has until July 2025 to submit its counter-arguments. After that, oral hearings at the ICJ are anticipated in 2026 – which means the legal process may extend for years.
If accepted, the case would mark a historic first, as no state has successfully prosecuted another for genocide under the Genocide Convention of 1948.
The potential verdict could resonate far beyond Israel and Palestine, setting a new standard in how international law addresses state-sanctioned violence, experts say.
“What we have been saying is that genocide is a crime of crimes,” said Chrispin Phiri, a spokesperson for South Africa’s Minister of International Relations and Cooperation Ronald Lamola.
Head of the International Association of Genocide Scholars, Melani O’Brien, said South Africa’s submission was the start of an “important and lengthy” process.
“It’s part of the process of the prevention of genocide. It serves as a deterrent,” she said of the case, which is one of the four currently before the ICJ invoking the genocide convention.
O’Brien said while a guilty verdict may not stop Israel, it would pressure other countries to reconsider their relationship with it.
Dangor acknowledged that a guilty verdict might not change Israel’s actions but could force an arms embargo.
“With this level of depravity, wilful killing and immunity, where Israel says, ‘We will commit genocide and get away with it, how dare you call it a genocide’, we are duty-bound to stop it,” he said.
“We don’t have the ability to stop it with military means or economic sanctions. We are hoping that the actions we take can lead to others having to take action. This is because the legal consequences that emerge from a finding of genocide mean that third-party states can no longer find excuses to provide arms [to Israel].”
Speaking at the BRICS summit in Russia last week, Ramaphosa told world leaders that alongside its legal action at the ICJ, South Africa remained “unwavering” in its support of the establishment of a Palestinian state.
“We do believe the world cannot stand by and watch the slaughtering of innocent people continuing,” the president said.
-Source: Al Jazeera
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