What is the Significance of South Africa’s Recent Memorandum to the “International Justice”?

The American website “CounterPunch” highlighted the memorandum submitted by South Africa to the International Court of Justice following the Israeli Knesset’s passage of laws that obstruct humanitarian operations for Palestinians. The site pointed out that the African nation faces the challenge of having abundant evidence of Israeli genocide.

According to the report translated by “Arabi 21,” the timing was highly appropriate for the decision that the Israeli Knesset began to undertake concerning the weakening and distancing of the only humanitarian value agency serving Palestinians, “UNRWA,” by passing laws criminalizing its activities with a majority of 92 votes against 10 on October 28.

The site added that the attack on “UNRWA” was accompanied by a simultaneous legal attempt from South Africa, which on December 28, 2023, filed a request to the International Court of Justice accusing Israel of violating the United Nations Convention on the Prevention of Genocide, alleging acts of “genocide” against Palestinians in Gaza with the aim of their destruction as part of the Palestinian national and ethnic group.

By May 10, South Africa submitted four requests to amend its requests seeking additional interim measures along with amendments to the original interim measures imposed by the International Court of Justice.

According to the site, this acceleration in proceedings raised questions about whether Israel’s rights in legal proceedings and the right to be heard were affected, especially after it had committed to submitting written observations by May 15, before a sudden announcement of an oral hearing session on May 12.

The site noted that these discussions took place before the intensified and ongoing escalation against Gaza, and the ongoing killing, intimidation, and displacement of Palestinians in the West Bank. In such cases, due legal proceedings remain merely a fantasy and speculation, especially regarding civilians. With increasing recurrence, disturbing evidence emerges indicating that Israeli units follow a programmed approach to destroying viable infrastructure and livelihoods in the Gaza Strip.

On October 22, the Israeli human rights organization B’Tselem expressed shock at the massive scale of “crimes currently being committed by Israel in northern Gaza in its campaign to depopulate it, regardless of the remaining population,” confirming that “it is impossible to describe, not only because hundreds of thousands of people are suffering from hunger and disease without access to medical care and continuous bombardment and shooting, which is beyond comprehension, but also because Israel has isolated them from the world.”

The site also mentioned that the practices of the Israeli army’s Combat Engineering Battalion 749 show a record of systematic destruction of cultural, structural, and intellectual life in the Gaza Strip, according to Younes Al-Tirawi and Sami Vanderlip for the site “Drop Site News.” Members of the official D9 company of the battalion said, “Our mission is to level Gaza.”

In the operation that saw the destruction of Al-Azhar University, Sergeant First Class David Zoldan, the operations officer in Company “A” of the Israeli battalion, rejoiced with his fellow soldiers upon seeing the explosion: “Hiroshima and Nagasaki together, did you see?”

The site added that such statements are continually repeated and are easily found; they are freely stated at the highest levels of government. On October 21, the Israeli National Security Minister Itamar Ben-Gvir said at a “settler” conference held in a restricted military area that the residents of Gaza will have the opportunity “to leave for other countries.” His justifications for this ethnic cleansing remain constant, reflecting biblical thinking: “The land of Israel is ours.”

In a press release issued by South Africa’s Department of International Relations and Cooperation on October 28, the government announced the submission of a “memorandum” to the International Court of Justice concerning its ongoing case against Israel, which spans 750 pages with 4,000 pages of supporting evidence and attachments. While its request in December 2023 was 84 pages.

South Africa’s representative in The Hague, Ambassador Vusimuzi Madonsela, told Al Jazeera, “The problem we face is that we have too much evidence.”

The site explained that Zain Dangor, the Director-General of the Department of International Relations and Cooperation in South Africa, was more practical. It might be possible for Israel to inflate its file of atrocities, but a line had to be drawn in the submissions made.

He said, “Our legal team will always say we need more time, there are more facts coming, but we have to say: we need to stop now, and you need to focus on what you have.”

While the contents of the official memorandum remain confidential, the evidence for it is quite clear. It includes, for example, evidence indicating that Israel “violated the Genocide Convention by promoting the destruction of Palestinians living in Gaza, physically killing them using a variety of destructive weapons, depriving them of access to humanitarian aid, causing living conditions intended to physically destroy them, ignoring and rejecting many of the interim measures imposed by the International Court of Justice, and using famine as a weapon of war to achieve Israel’s goals in reducing the population of Gaza through mass death and forced displacement of Palestinians.”

Despite this comprehensive compilation of crimes, legal commentators wonder to what extent this latest attempt will succeed in linking Israeli officials’ decisions to the intent of genocide. It’s nearly impossible to argue that Israel commits war crimes and violates humanitarian law. However, proving genocide, as international jurisprudence has repeatedly shown over the years, is indeed a difficult start. The “dolus specialis” – the specific intent to destroy, in whole or in part, a protected group – is essential to proving genocide.

For instance, Kathleen Powell from the University of Cape Town has some reservations; she said, “If they can find genocidal statements from government officials and show that this directly led to a particular program resulting in destruction on the ground, it could be a very strong case. However, linking them will be very difficult.”

The site concluded its report by indicating that Dangor has no doubt about it; he said, “Genocide without intent can still be crimes against humanity. But here, the intent is glaringly clear.” It suffices to say that Israeli legislators and officials, supported by the actions of the Israeli army, make proving this intent easier with each passing day.