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Following an application by South Africa under the Convention on the Prevention and Punishment of the Crime of Genocide (briefly known as the Genocide Convention), the International Court of Justice (ICJ) has made provisional rulings on the question of whether Israel is committing genocide. Having found that at least some of the rights of Palestinians for which South Africa sought protection are “plausible”, the ICJ issued a provisional finding that “there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the court to be plausible, before it gives its final decision”.
In its provisional order it concluded that “pending its final decision” it was appropriate for it to “indicate certain measures in order to protect the rights claimed by South Africa that the Court has found to be plausible”. In summary, the court ordered Israel to take measures to prevent breaches of the Genocide Convention.
In response to an appeal by South African Jews for a Free Palestine to make an opening for consideration of this development, the director of the Cape Town Holocaust and Genocide Centre (CTHGC) replied: “It is important to note that the designation of genocide is a legal matter, determined not by historians, journalists or civil society organisations, but by international tribunals specifically established for that purpose. Should such a tribunal reach a determination in relation to the situation in Gaza, I would act accordingly with regard to the centre’s educational programming.”
The CTHGC’s mission statement on its website explains: “The Cape Town Holocaust & Genocide Centre works towards creating a more caring and just society in which human rights and diversity are respected and valued.
“Through our exhibitions, events and workshops, we endeavour to commemorate the victims and survivors of the Nazi regime and the numerous genocides that happened before and since the Holocaust.”
In response to an approach appealing to it to take note of events, the South African Jewish Board of Deputies stated: “As the representative body of the Jewish community in the Western Cape, the Cape South African Jewish Board of Deputies (Cape SAJBD) categorically rejects the false and inflammatory accusation of genocide being levelled against the State of Israel. These claims are both legally and morally unfounded. To date, the International Court of Justice — the highest judicial authority globally, has made no ruling declaring that genocide is taking place.”
The SAJBD explains its purpose thus: “The SAJBD is the umbrella representative spokesbody and civil rights lobby of the SA Jewish community. It promotes the safety and welfare of South African Jewry …”
It is notable that the SAJBD considers that the defence of Israel is one of its functions.
These two replies to the SAJFP (I am a member but not a spokesperson) are complementary. A point that they have in common is the denial of a forum for a matter that is the subject of intense world-wide discussion. It is odd, however, that the director of the CTHGC feels inhibited about participating.
The SAJBD and the CTHGC may not like the ICJ’s provisional order, but it is a decision that exists. One would have thought that even pending the final rulings by the ICJ, its provisional decisions would be of immediate relevance to the stated Mission of the CTHGC.
The vigorously pejorative adjectives used by the SAJBD signal that, in its opinion, the provisional order ought to be regarded by right-minded people as wrong. In other words, having considered South Africa’s application the ICJ could and should have reached a different conclusion — one which rejected it altogether. A study of South Africa’s application to the ICJ and the provisional order should therefore point to flaws. Israel insists that its conduct is consistent with international law. How then does its conduct, so far as Zionists are concerned, fall outside the scope of the Genocide Convention?
The Genocide Convention defines the crime thus:
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group
(e) Forcibly transferring children of the group to another group.
This definition describes the crime in two components, in a manner which is familiar to lawyers. One describes the prohibited conduct or situation caused by those accused of the crime, and the other states the prohibited intention or state of mind with which they conducted themselves. Lawyers use the convenient Latin phrases actus reus to refer to the first element, and mens rea for the second element — the mental element. There is much legal theory behind these concepts, but it is unnecessary to discuss this here.
Professor Norman Finkelstein described the nature of the evidence placed before the ICJ as follows: “The ICJ is the highest judicial body of the United Nations (UN), so what was the South African strategy? The strategy was to only cite UN-affiliated organisations, or the most reputable humanitarian organisations. So they cite the World Health Organisation, they cite Save the Children, they cite Unicef, they cite Oxfam, for example. Why was that very clever? Because you couldn’t seriously discount the evidence without simultaneously discounting the whole United Nations system, because their whole case was built on the UN system. And no judge sitting on the highest judicial body of the UN could very well come along and credibly argue that all the UN organisations are lying, that all the UN organisations are antisemitic, that all the UN organisations are engaged in a concerted conspiracy against Israel.”
The material to which Norman Finkelstein drew attention all related to the situation in Gaza and the state to which its population had been reduced — the actus reus, as explained above.
Israel filed no written response to South Africa’s case. The ICJ however summarised its oral submissions thus (para. 64):
“Israel denies that there exists a real and imminent risk of irreparable prejudice in the present case. It contends that it has taken — and continues to take — concrete measures aimed specifically at recognising and ensuring the right of the Palestinian civilians in Gaza to exist and has facilitated the provision of humanitarian assistance throughout the Gaza Strip. In this regard, the Respondent observes that, with the assistance of the World Food Programme, a dozen bakeries have recently reopened with the capacity to produce more than two million breads a day. Israel also contends that it continues to supply its own water to Gaza by two pipelines, that it facilitates the delivery of bottled water in large quantities, and that it repairs and expands water infrastructure. It further states that access to medical supplies and services has increased and asserts, in particular, that it has facilitated the establishment of six field hospitals and two floating hospitals and that two more hospitals are being built. It also contends that the entry of medical teams into Gaza has been facilitated and that ill and wounded persons are being evacuated through the Rafah border crossing. According to Israel, tents and winter equipment have also been distributed, and the delivery of fuel and cooking gas has been facilitated. Israel further states that, according to a statement by its defence minister of 7 January 2024, the scope and intensity of the hostilities was decreasing.”
The ICJ did not comment explicitly on this in the provisional order they issued on 26 January 2024. Tactfully, quoting from United Nations sources in South Africa’s application, they merely said: “While steps such as these are to be encouraged, they are insufficient to remove the risk that irreparable prejudice will be caused before the court issues its final decision in the case.”
The evidence of the actus reus described above has to be seen in the context of the evidence South Africa had placed before it relating to the mens rea —the state of mind. This evidence was presented to the ICJ in Part D of the application under the heading, “Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials and Others”.
What follows are the exact words used by Israelis from the president, through ministers, current and former members of the Knesset, political leaders, commentators and Israel Defence Forces soldiers from the most senior commanders to the rank and file on the ground in Gaza. Each individual statement has a footnote which includes a hyperlink by which it can be checked. The linking text emphasises that the statements are typical.
They are explicit, unambiguous and vivid in expressing what the fate of Gaza and its population is intended to be. After quoting many examples, paragraph 106 reads:
“Similar genocidal rhetoric is also commonplace in Israeli civil society, with genocidal messages being routinely broadcast — without censure or sanction — in [the] Israeli media. The media reports call for Gaza to be but rather ‘Gaza should be razed’, on the repeated claim that ‘[t]here are no innocents … There is no population. There are 2.5 million terrorists’. One local official reportedly called for Gaza to be ‘desolate and destroyed’ like the Auschwitz Museum, ‘demonstrating the madness of the people who lived there’. Former MKs have called for a level of destruction akin to that of Dresden and Hiroshima, asserting that it would be ‘immoral’ for the Israeli army not to show themselves to be ‘vengeful and cruel’. In an Israeli news interview, one former MK called for all Palestinians in Gaza to be killed saying (italics in the original):
“‘I tell you, in Gaza without exception, they are all terrorists, sons of dogs. They must be exterminated, all of them killed. We will flatten Gaza, turn them to dust, and the army will cleanse the area. Then we will start building new areas, for us, above all, for our security.’”
The oral transcript of the proceedings before the ICJ in December 2023 is available. One of the Counsel for Israel, Professor Malcolm Shaw, explained (paragraph 49) that —
“Some of the comments to which South Africa refers are clearly rhetorical, made in the immediate aftermath of an event which severely traumatised Israel, but which cannot be seen as demanding genocide. They express anguish and the necessity to restore control over Israel’s own territory under severe threat and safety to its citizens.”
He referred to Prime Minister Benjamin Netanyahu’s statement that “The IDF is the most moral army in the world, the IDF does everything to avoid harming the uninvolved” (paragraph 50; italics in the original).
Subsequently, on 27 February 2025 South Africa deposited with the United Nations’ Security Council a dossier of openly available evidence of Israel’s alleged acts of genocide. The dossier is stated to be presented “… for international consideration by members of the United Nations, as part of the obligations upon South Africa and other states, under Article 1 of the Genocide Convention, to act to prevent genocide by assisting in ensuring accountability for genocide and deterring further acts of genocide and the risk thereof, which continue to pose a grave and imminent risk to the rights of Palestinians”.
It includes material which follows the same pattern as the application to the ICJ, but of course it cannot be taken into account as the court had already given its provisional judgment. Section I (Introduction), paragraph 10, summarises the contents of the dossier as follows:
- “Israel’s failure to comply with the ICJ’s Orders, and the situation in Gaza prior to the ceasefire (Section II)
- Reports of patterns of conduct by Israel (Section III)
- Statements of intent and incitement to genocide (Section IV)
- Events in 2025 before and after the ceasefire (Section V)
- The requirement for urgent action by third states and the United Nations
- Security Council (Section VI)”
The dossier has four annexes, collating the statements of intent and incitement by Israeli government officials, military officers and soldiers and public figures. Every quotation is supported by a link to its source. The statements quoted are again explicit, unambiguous, and encourage or relish and express approval for genocide.
For example, Annex 2 commences: “This annex contains recorded instances of genocidal statements, incitement to genocide and dehumanising rhetoric by Israeli soldiers –– including senior military officers in command. The rhetoric often echoes genocidal statements and themes by senior Israeli governmental officials, calling for the destruction of Gaza, a second ‘Nakba’, and the full Israeli occupation of Gaza. Further, soldiers directly responsible for operating lethal weaponry against Palestinians in Gaza, or in command of soldiers who operate such weaponry, repeatedly assert that there are no innocent or ‘uninvolved’ Palestinians in Gaza, and echo the words of the Israeli Prime Minister, calling for the annihilation of the Palestinian ‘Amalek’.”
Names, capacity and authority, ranks, and the exact words used and their context are stated. The dossier’s contents are so detailed that they overtake the attempt by Shaw to explain the words used as related to the anguish of the moment. They explicitly contradict any claim of self-defence. He must surely be chagrined to read what has been said subsequently by those whose words he sought to explain before the ICJ.
It is not difficult to understand the Zionists’ hostility to the ICJ’s provisional order. The explanation lies at the very heart of Zionism: Palestinians are not protected by the Genocide Convention.
The newly-founded UN decided, after World War II, that the European Holocaust had created a “Jewish problem”. It resolved that the solution lay in Palestine, and Zionism seized the moment. Zionism interprets the European Holocaust as granting an exemption to the application of the Genocide Convention in the territory it named Israel.
From the Zionist perspective, this is simple logic: how could a state for Jews be established where others lived, if those others are inflexibly protected by the Genocide Convention? Even before World War II, David Ben-Gurion, who became Israel’s first prime minister, had said: “I am for compulsory transfer. I do not see anything immoral in it.” He saw to the ethnic cleansing of Israel, and killing Palestinians was part of the means by which it was done.
In his account of what happened, The Ethnic Cleansing of Palestine (2006), Ilan Pappé writes: “The Zionist project could only be realised through the creation in Palestine of a purely Jewish state, both as a safe haven for Jews from persecution and a cradle for a new Jewish nationalism. And such a state had to be exclusively Jewish not only in its socio-political structure but also in its ethnic composition.”
The definition of Zionism is to be found in Israel’s Basic Law of 2018:
“1. (a) The Land of Israel is the historical homeland of the Jewish People, in which the State of Israel was established.
(b) The State of Israel is the nation state of the Jewish People in which it realises its natural, cultural, religious and historical right to self-determination.
(c) The realisation of the right to national self-determination in the State of Israel is exclusive to the Jewish People.”
So far as Zionism is concerned, if the Genocide Convention is to be interpreted to protect Palestinians then this would render futile the UNs’ decision in 1947 to establish a Jewish state as defined above. Professor John Mearsheimer, in an interview in which he describes the history of Israel, draws attention to the demography which made this inevitable.
He debunks the myth that Palestine was “a land without people for a people with no land”. He shows that from the outset — the start of the 20th century — it was understood by Zionists that it would be impossible to establish a Jewish state without “committing great crimes”. Mearsheimer refers to the work of David Ben-Gurion and Vladimir Jabotinsky, two of the leading architects of Zionism. In The Iron Wall the latter wrote in 1923: “There can be no voluntary agreement between ourselves and the Palestine Arabs. Not now, nor in the prospective future. I say this with such conviction, not because I want to hurt the moderate Zionists. I do not believe that they will be hurt. Except for those who were born blind, they realised long ago that it is utterly impossible to obtain the voluntary consent of the Palestine Arabs for converting ‘Palestine’ from an Arab country into a country with a Jewish majority.”
Zionism emerged in the late 19th century as a reaction to antisemitic violence in Europe. Being born in violence, Zionism needs violence to survive. Without violence Zionism would have no point, and it creates violence if necessary.
If Palestinians in their own land are defined to be a problem, then it is one that can be solved only by violence. Relying on violence fosters an illusion of invincibility, and it is only an illusion because those responsible will inevitably have to face the consequences.
The International Criminal Court is established by the Rome Statute. Its preamble sets out the context of the ICC and what is expected of it; the first, second, fifth and last clauses of the Preamble state:
“The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity …
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
Resolved to guarantee lasting respect for and the enforcement of international justice,
Have agreed as follows …”
It may take time, but justice will be done for the human spirit finds impunity to be intolerable.
Zionists object to the statement that Israel is an apartheid state, but why do they do so? The forced removal of Palestinians parallels the eradication of so-called “black spots” under South Africa’s Group Areas Act and other apartheid legislation.
Strange also is the Zionist objection to its final solution of the “Palestinian problem” being compared to the Nazi attempt to clear Europe of its Jews. The stated intentions of Israelis as set out in South Africa’s ICJ application and the dossier are indistinguishable from the policies proclaimed by the Nazis — to rid the land of an unwanted national, racial, ethnical or religious group. The images from the European ghettos and concentration camps can now be replaced by pictures from Gaza. Other than to exterminate, for what reason was, and is, starvation imposed?
The present will become the past, and historians will write about today and try to understand what happened. They will wonder how those who claimed to have been shaped by the European Holocaust so readily replicated its atrocities.
Despite noting that the question of whether what is happening is genocide is still to be taken by the ICJ, the SAJBD has decided that it has the authority to determine the matter. Subjectively describing the accusation as “false” and “inflammatory”, it asserts that it is “legally and morally unfounded”. No reasons are given for contradicting the weight of international authority, including Israeli: B’Tselem (the Israeli Information Centre for Human Rights in the Occupied Territories) and Physicians for Human Rights-Israel recently issued a joint report entitled “Our Genocide”:
“An examination of Israel’s policy in the Gaza Strip and its horrific outcomes, together with statements by senior Israeli politicians and military commanders about the goals of the attack, leads us to the unequivocal conclusion that Israel is taking coordinated action to intentionally destroy Palestinian society in the Gaza Strip.”
Without giving reasons, the SAJBD apparently assumes that Jews exclusively are entitled to Palestine, may do everything necessary to this end, and that no further explanation is needed. This calls to memory that during apartheid South Africa was described as “a white man’s country”, and those whose opinion mattered knew this.
Antisemitism — an irrational dislike for Jews — is real and it exists. It is racist and antisemitic for the SAJBD to claim that it is promoting the “safety and welfare of South African Jewry” by defending the hideously indefensible. This is racism. It assumes that all Jews think alike and all are Zionists.
When Nelson Mandela said: “[W]e know too well that our freedom is incomplete without the freedom of the Palestinians” it was not just struggle rhetoric. It was also a grim warning against views such as the SAJBD’s, which provide antisemites in South Africa with the ammunition they want.
The SAJBD would do better by encouraging doykait — South African Jews are where we should be, and we belong and are accepted where we are. Our interests are best served by identifying with all South Africans in the task of making our troubled country a better one, and this includes supporting the Palestinians.
So far as the Cape Town Holocaust and Genocide Centre is concerned, its refusal to provide a forum to discuss what is happening is a failure to carry out its self-imposed mandate. It claims that its mission is “to draw attention to the dangers of indifference, apathy and silence”. One topic on which the CTHGC might show some concern, interest and encourage discussion is whether what is happening to Palestinians might be described as a holocaust, if not yet defined formally as a genocide.
Mervyn Bennun, a retired UK university law lecturer and research associate at the University of Cape Town, is a member of SA Jews for Free Palestine and the Palestine Solidarity Campaign.