South Africa’s case charging Israel with genocide, in which provisional measures were announced on January 26, is a marker in the Middle East conflict raging currently, and posits a moral prism to view the competing narratives. Raphael Lemkin, a legal scholar and a World War II refugee from Western Ukraine who lost considerable family in the Shoah, is widely considered the architect of the Genocide Convention, which was a direct reaction to the Holocaust. Legal defences aside, that the State of Israel, a state sanctioned largely by the world’s shame over allowing the Nazi Holocaust to occur, today faces a credible charge of genocide is a tragic irony of history.Lemkin spent much of the war studying Nazi documents and ordinances to analyse the motive underlying Nazi repression and massacres, which today we understand to be archetypically genocidal, including implementing Lebensraum, a colonial stratagem previously employed by the Germans in Namibia and used to depopulate territories for settling Germans.It is not the seemingly indiscriminate killings of civilians in Gaza by Israeli bombardment, which may be a war crime in itself, but the motive behind it which is called into question in South Africa’s case. Lemkin in his writing explained that genocide refers to a plan “aimed at destruction of the essential foundations of the life of national groups so that these groups wither and die like plants that have suffered a blight”.According to the Lemkin Institute for Genocide Prevention, a now deleted post by the @IsraelPM X handle “is an expression of genodical intent”, in which it was written “[t]his is a struggle between the children of the light and the children of darkness, between humanity and the law of the jungle”.There were lots of other statements too and the question sought to be answered in the International Court of Justice case is whether the nature of the Israeli military campaign itself, and/or the public declarations of collective punishment, and/or the cutting off of water, food and fuel supplies, were sufficient for the court to prescribe emergency interim measures that Israel must follow.At the same time, the attacks on Palestinians in the West Bank, often by or in aid of Israeli settlers, also raises concerns on genocidal intent. For its parts, South Africa’s arguments in the ICJ did not link the settlement policies in the West Bank to the situation in Gaza. The ICJ is considering a separate advisory opinion on the policies and practices of Israel in the Occupied Palestinian Territories, including East Jerusalem.In a preliminary ruling on January 26, the ICJ found South Africa’s case to be “plausible”, or sufficiently prima facie for it to direct provisional measures. Israel – which Benjamin Netanyahu has said was set up to ensure that a Holocaust “never again” happens – is prime facie indicated to be in violation of the Genocide Convention. The ICJ took note of the conduct of Israeli forces, statements of UN officials and Israeli officials, and the situation in Gaza in itself. It also took note of the UN’s Committee on the Elimination of Racial Discrimination which found “racist hate speech” and an expert group’s report that found “discernibly genocidal and dehumanising rhetoric”. Israel’s self-declared steps to comply with the Genocide Convention were held to be insufficient to remove the risk of “irreparable prejudice” to the rights of the Palestinian people under the Genocide Convention.Also read: By Invoking Genocide Convention, ICJ Makes It Clear Israel’s Killing of Palestinians is Not ‘War’ But CrimeIn his separate opinion as judge ad joc appointed by Israel – and not, as he emphatically notes, its agent – Aharon Barak, a former Chief Justice of the Israeli Supreme Court, has anguish seeping through his words. He evokes the memory of Lemkin. Barak was a five year old when Nazis put him with his family in a ghetto, and he is himself a survivor of the genocide in Lithuania. He writes that “[g]enocide is more than a word for me”, and the “idea that Israel is now accused of committing genocide is very hard for me personally…” His statement that the “every Israeli soldier carries with him (or her) in their backpack, the rules of international law” will jar those watching the bombardment live. However, even though Barak finds no plausible links to genocidal intent, he struggles with the situation and votes for humanitarian aid and the direction to stop incitement to genocide – the latter to “decrease tensions and discourage damaging rhetoric”.It’s a make or break moment in international law. Although no state has formally joined the case with South Africa, the divide in those indicating support and those against runs through a global north-south divide. Of the BRICS countries, Brazil has supported South Africa explicitly, and Russia and China have been sympathetic. India has been silent on the case. The global north has come out against the case itself, and as traditional exponents of what they call the international ‘rules-based order’, countries such as Germany, which has referred to the historical necessity to support Israel, are faced with difficult choices. Canada has been another vocal supporter of Israeli actions, in contrast to its oft stated position as a stronger supporter of international law. However, the EU Commission was quick to announce after the order that ICJ judgments are binding and it expects compliance. This can only lead to a churn in the international system, and a shift towards more real politik or a passing of some of the power enjoyed by traditional exponents. South Africa’s role in bringing the case is in itself indicative of that shift.In bringing the case, South Africa is not just exercising its legal right as a signatory to the Genocide Convention, but also discharging an obligation flowing from the moral authority of Nelson Mandela, who was an ardent supporter of the Palestinian cause, and considered himself in solidarity with, and in debt to, the Palestinian leadership for its support of the African National Congress’s struggle against apartheid. Consistent with this history was Israel and Apartheid South Africa’s real politik mutual support. There are also suggestions that South Africa’s case is due to the need to shore up domestic support for President Cyril Ramaphosa, but it is hard to argue that South Africa’s motives are strictly cynical.South Africa’s right to bring a case was a particularly Lemkinesque insertion into the Genocide Convention, which made the crime of genocide a crime against all humanity – hostis generis humani – thereby making it the duty of every country to prevent such actions.Also read: What Explains the Desensitisation of the Western Leadership Towards Horrors in Gaza?Israel has been ordered to not carry out genocide, to disallow and prosecute the public and direct incitement to genocide, to allow humanitarian aid, and to report to the court with a copy to South Africa within 30 days. The court has no sheriff it can send to coerce compliance, but is a moral expression of international law; Israel and its supporters will find their arguments harder to make now that the ICJ has said there is a prima facie case of genocide they are answerable for.The Israeli State now faces a choice – probably being articulated by many of its supporters – of hunkering down into an us-versus-the-rest-of-the-world mindset, and accusing the court of being a backer of terror, or of travelling, or be forced to travel, down the hard path to a re-think. The early signs are not encouraging.Avi Singh is an advocate who specialises in transnational and international law and is a professor at the International University College, Turin. He has also practiced before international criminal tribunals.
