We cannot be like the West and turn our back on the Palestinian people and the question of their freedom
The siege of Gaza is not just a humanitarian catastrophe — with over two million lives at stake — it is an international crime.
It comes amid an escalation over the past three weeks that has produced a grim list of international crimes, expanding in degree and kind daily; in the context of the illegal Israeli occupation of Palestinian lands that, as of this year, will have lasted as long as the formal implementation of apartheid in South Africa.
International human rights organisations (including Amnesty International and Human Rights Watch) found that the daily mistreatment of Palestinians by Israeli authorities is apartheid. The words of the courageous Miriam Makeba, delivered before the UN Special Committee against Apartheid 60 years ago, ring true of Gaza today:
[M]y country has been turned … into a huge prison. I feel certain that the time has come for the whole of humanity to shout out, and to act with firmness, to stop these crazy rulers from dragging our country into a horrifying disaster.
The past few weeks have been unprecedented, even for a place in which war crimes and crimes against humanity have become commonplace, routine even. The deliberate targeting of civilians and taking of hostages is a war crime, as is the indiscriminate bombing of civilians and civilian infrastructure.
The starvation of civilians as a method of warfare is a war crime. So too is the indiscriminate use of incendiary weapons like white phosphorus. The carrying out of these and other ‘inhuman acts’ in a manner that is widespread or systematic — whether it be by an organisation like Hamas or a state like Israel — is a crime against humanity.
As a legal term, genocide is often misused. The crime of genocide requires a specific intent to destroy a national, ethnical, racial or religious group, either as a whole or ‘within a geographically limited area’.
In the case of the Srebrenica genocide, the International Tribunal for the former Yugoslavia found that, in addition to direct acts of killing, this genocidal intent could be inferred from the forcible transfer of the Bosnian Muslim population from the enclave. In particular, the tribunal pointed to the “manner in which the transfer was carried out — through force and coercion, by not registering those who were transferred, by burning houses … sending a clear message that they had nothing to return to, and significantly, through its targeting of literally the entire Bosnian Muslim population”.
In the context of their overwhelming control of the fate of Gaza, Israeli officials have made public statements that may well meet the requirements of genocidal intent, or at the very least incitement to genocide (including references to “human animals” and “one goal: Nakba!”).
They have done so with the support and encouragement of leaders of countries in the West, who have themselves — as if by reflex — resorted to the racialised epitaphs of “barbarians” and “savages”, notwithstanding their own histories of colonialism and genocide fueled by these very words.
The international institution tasked with prosecuting such crimes has been rendered irrelevant by its feckless chief prosecutor.
It took one day for the International Criminal Court’s Karim Khan to make a statement following Russia’s invasion of Ukraine (calling on “all sides” to respect International Humanitarian Law), and less than one week to open a formal investigation.
In the case of Palestine, it took the prosecutor’s office over a decade to open an investigation, and apparently it took the threat to forcibly displace over a million people for the ICC prosecutor to say anything. When Khan did speak on 13 October, and was asked specifically about the order to evacuate northern Gaza in 24 hours, he demurred: reiterating Israel’s right of self-defence and stating that civilians can’t be targeted deliberately.
The following day the World Health Organization called the evacuation order a “death sentence” for the patients in 22 hospitals in northern Gaza. The Prosecutor’s statement on Sunday — after three weeks and the killing of over 3 000 children killed in Gaza — was simply too late. South Africa should call for his removal, or leave the Rome Statute altogether.
The ICC is not the only avenue for justice; domestic courts are empowered under international law to prosecute international crimes — few more so than those of South Africa.
Anyone in South Africa that renders military service to either Hamas or Israel — or encourages, incites or solicits such services — without the express permission of the National Conventional Arms Control Committee is liable for prosecution under the Foreign Military Assistance Act. Moreover, anyone anywhere in the world that commits a war crime, crime against humanity or genocide is liable for prosecution under the “universal jurisdiction” provisions of South Africa’s ICC Act.
Notably, the constitutional court, in deciding when to exercise this expansive jurisdiction, stated that South African authorities should consider the likelihood of the international crimes in question being investigated and prosecuted with “the necessary zeal”’ by the state concerned. It seems certain that Israel will prove unwilling, and Palestine unable, to pursue prosecutions for international crimes in either territory.
As such, South Africa should open an investigation into the crimes committed in both Israel and Palestine.
As the first, and to date only, state to have initiated a prosecution of the crime against humanity of apartheid, South Africa should consider opening an investigation into its perpetration by Israel. South Africa is also in the final stages of signing up to the 1973 Apartheid Convention. Once it has done so, that convention should guide its response to this conflict more broadly.
In particular, South Africa should lead the process of resurrecting the “Group of Three”: the committee established under the Apartheid Convention to ensure its implementation.
The international body tasked with maintaining international peace and security has once again confirmed its irrelevance. The veto-wielding US has held the UN Security Council — and by extension over two million Palestinians in Gaza — hostage to its demands for the legal recognition of the right of self-defence for Israel (and itself) against “terrorism”.
This is a cynical excuse, not least of all because no two states have done more to stretch the bounds of the right to self-defence — and exceed them at will — than the US and Israel (along with apartheid South Africa). As was the case with apartheid South Africa, the UN’s more democratic institutions such as the General Assembly must take the lead, alongside the Human Rights Council and the International Court of Justice.
The conflict requires a political solution, but if (as South Africa has insisted in recent weeks) “UN resolutions and international law matter”, then these must frame both the solution that emerges and the means by which the parties are forced to negotiate. This will require the same courageous and creative use of international law and institutions that Makeba inspired 60 years ago; led now (as then) by states and scholars of the Third World (and likely, now as then, in the face of fierce resistance from those of the West).
This may include the diplomatic, economic and legal isolation of Israel for so long as it continues its cruel and vengeful blockade of Gaza, its illegal occupation of Palestinian territory and its systematic oppression of Palestinians through its apartheid laws and policies.
It must include the recognition of the right of Palestinian people under international law to resist colonialism and apartheid, including through the use of force; an inalienable right that cannot be extinguished by its abuse any more than the right of Israel to defend itself generally is extinguished by its repeated and flagrant abuse of that right over the past half-century.
This will not be easy, but South Africa must stay the course. The West has turned its back on the Palestinian people and the question of their freedom, just as Western leaders ignored the pleas of Makeba in the decades that followed her address in 1963.
But the West is not the world, and the world must choose a different path; lest Makeba’s pleas when she returned to the UN the following year become prophetic:
I ask you and all the leaders of the world, would you act differently, would you keep silent and do nothing if you were in our place? … I appeal to you, and to all the countries of the world to do everything you can to stop the coming tragedy.
Christopher Gevers teaches international law and human rights at the University of KwaZulu-Natal.