Over the past month, we’ve watched an astonishing, high-stakes global drama play out in The Hague. A group of countries from the poorer, less powerful bloc some call the global south, led by South Africa, dragged the government of Israel and, by extension, its rich, powerful allies into the top court of the Western rules-based order and accused Israel of prosecuting a brutal war in Gaza that is “genocidal in character.”
The responses to this presentation from the leading nations of that order were quick and blunt.
“Completely unjustified and wrong,” said a statement from Rishi Sunak, Britain’s prime minister.
“Meritless, counterproductive and completely without any basis in fact whatsoever,” said John Kirby, a spokesman for the United States National Security Council.
“The accusation has no basis in fact,” a German government spokesman said, adding that Germany opposed the “political instrumentalization” of the genocide statute.
But on Friday, that court had its say, issuing a sober and careful provisional ruling that doubled as a rebuke to those dismissals. In granting provisional measures, the court affirmed that some of South Africa’s allegations were plausible and called on Israel to take immediate steps to protect civilians, increase the amount of humanitarian aid, and punish officials who engaged in violent and incendiary speech. The court stopped short of calling for a cease-fire, but it granted South Africa’s request for provisional measures to prevent further civilian death. For the most part, the court ruled in favor of the global south.
Accusing the state created in the aftermath of the slaughter that required the coinage of the term genocide is a serious step. Scholars of genocide have raised alarms about statements from Israeli leaders and its conduct in the war while stopping short of calling the killing genocide. Some have welcomed South Africa’s application as a necessary step to preventing genocide.
The court was not asked to rule on whether Israel had in fact committed genocide, a matter that is likely to take years to adjudicate.
Whatever the eventual outcome of the case, it sets up an epic battle over the meaning and values of the so-called rules-based order. If these rules don’t apply when powerful countries don’t want them to, are they rules at all?
“As long as those who make rules enforce them against others while believing that they and their allies are above those rules, the international governance system is in trouble,” Thuli Madonsela, one of South Africa’s leading legal minds and an architect of its post-apartheid Constitution, told me. “We say these rules are the rules when Russia invades Ukraine or when the Rohingya are being massacred by Myanmar, but if it’s now Israel butchering Palestinians, depriving them of food, displacing them en masse, then the rules don’t apply and whoever tries to apply the rules is antisemitic? It is really putting those rules in jeopardy.”
Reading the document South Africa prepared, I wondered if the leaders of the Western world who dismissed the allegations out of hand had read the same evidence that I had. It is a harrowing chronicle of a charnel house of horrors that shows in detail how Palestinians in Gaza have endured relentless bombing and displacement. I was struck by how thoroughly documented the allegations were and how selective the jurists were in their sources of evidence. The document includes 574 footnotes that cite blue-chip sources, like United Nations agencies, major nonpartisan humanitarian aid organizations like Save the Children and mainstream news organizations like The New York Times, the BBC and Reuters.
The military campaign has “wreaked more destruction than the razing of Syria’s Aleppo between 2012 and 2016, Ukraine’s Mariupol or, proportionally, the Allied bombing of Germany in World War II,” the report quoted researchers as saying. The researchers, hardly some raving left-wing activists, are experts cited in one of the most respected news organizations in the world, The Associated Press.
Nor did South Africa seek to elide or obfuscate the atrocity of Hamas’s attack on Israel or the ongoing threat to Israel: In fact, the South African document explicitly condemns the Oct. 7 attack and notes the ongoing rocket attacks from Gaza and Lebanon.
It goes on to quote statements from top Israeli officials, like President Isaac Herzog, stating that “it’s an entire nation out there that is responsible,” making no distinction between civilians and Hamas fighters. Israel’s minister of defense, in the days after the attack, called for a “complete siege,” adding “there will be no electricity, no food, no water, no fuel, everything is closed.” He said that in fighting Hamas the country faced “human animals and we are acting accordingly.”
A politician tweeted that the objective was “erasing the Gaza Strip from the face of the earth.” The minister of agriculture said Israel was “now rolling out the Gaza nakba.”
These are serious charges that will take years to investigate and untangle. The bar to proving that the Israeli government has engaged in genocide is very high, and appropriately so. It is the most heinous crime a nation can commit, and there is special resonance, given that the term “genocide” was coined by the legal scholar Raphael Lemkin, a Polish Jew, during the Holocaust to give a legal definition to the slaughter and ensure it never happened again.
Israel mounted a vigorous and detailed defense, arguing that the statements South Africa cited were not official government policy in prosecuting the war. (The Hebrew-speaking American journalist Yair Rosenberg argued in The Atlantic that some of the statements from Israeli officials quoted in the South Africa referral have been taken out of context, truncated or mistranslated.) Israel argues that Hamas is the force that would commit genocide if given the chance and that the country’s military campaign in Gaza against Hamas is one of self-defense.
The New York Times
