Gaza City on January 15, 2024. Abdul Rahman Salama/Xinhua via Getty Images
“To keep you is no benefit, to destroy you is no loss,” was the Khmer Rouge slogan when they seized power in war-torn Cambodia in April 1975. Declaring the start of their reign “Year Zero,” they set in motion a policy to transform the country into an agrarian communist utopia. The first step was to empty the cities, a “cleansing” process bathed in blood. Anyone associated with the overthrown government, ethnic minorities, religious adherents, college educated professionals, property owners and merchants were executed. Their extended families were not spared. The zero-fication also involved the destruction of schools, universities, hospitals, factories and, indeed, any institutional or infrastructural entity that did not comport with the Khmer Rouge vision for Kampuchea, as the country was renamed. Urbanites were forced to march to rural areas where they were put to backbreaking work on collective rice farms and subjected to intensive reeducation. The regime was guided by the presumption that hard labor and ideological conformity would create a classless society of “New People.” Over the next four years, one-quarter of the country’s population died. One million people were executed or tortured to death and a further million perished from starvation, disease or exhaustion.
Since the start of Israel’s current bombing campaign on October 7, the Gaza Strip has become an enclave of death, displacement and destruction. An estimated 33,000 people have been killed, including 12,660 children and 7,000 missing and presumed dead beneath the rubble. More than 65,000 Palestinians have been wounded, many with lost limbs and other permanent disabilities. The IDF has targeted doctors, humanitarian workers, artists, scientists and professors, along with their families. Entire family lines have been obliterated. More journalists have been killed in three-and-a half months—an estimated 125 so far—than during any other war, irrespective of length.
The scope, scale and speed of Israel’s bombing campaign constitutes the most intense assault anywhere since World War II. There is no reciprocal high-intensity violence because Gaza has no army. Large portions of the 141-square-mile Strip have been “cleansed” of their inhabitants.[1] Almost 85 percent of the population—1,955,000 people—has been displaced. Over a quarter million homes have been totally or partially destroyed in what may constitute “domicide”—a newly emerging crime against humanity which pertains to massive destruction of housing and basic infrastructure in residential areas. The destruction includes schools (326), hospitals and clinics (208), mosques (247), churches (3), heritage sites (199), factories (1,690), libraries, archives and cultural centers. All of Gaza’s universities have been leveled.[2] Even the dead are not safe. Military bulldozers have destroyed cemeteries and soldiers have desecrated graves.
At the start of this war, Israel exploited its capacity to exercise necropolitical control over aid-dependent Palestinians by cutting off Gaza’s access to food, medicine, fuel, electricity and telecommunications. Three months in, the food system, like the healthcare system and the infrastructure for clean water and sanitation, has completely collapsed. Man-made famine conditions have reached the catastrophic phase. Four out of every five starving people in the world are Palestinians in Gaza.
Unlike the Khmer Rouge, the Israeli government’s exterminationist policy is not fueled by an ideological vision to remake Gaza anew. Total destruction is the goal.
From Open-Air Prison to Crime Scene
Life in Gaza was a chronic humanitarian crisis of impoverishment, deprivation and suffocating siege long before Israel launched its latest full-scale war, the fifth in this century. In 2005, Israel unilaterally “disengaged” from Gaza by withdrawing its military presence and evacuating Jewish settlers. The boundaries of Gaza were sealed, enwalling Palestinians within. But the occupation did not end because Israel continued to exercise effective control over the people, the airspace and the borders.
In 2007, Israel declared Gaza a “hostile entity” and tightened its siege. The transfer of food was limited to a “humanitarian minimum” based on a calculation of the caloric intake people need to survive.[3] Further evidence of Israel’s continuous control was the ongoing capacity to invade Gaza and arrest people who were then transferred to prisons inside the Green Line.
Initially, Israeli security officials declared their military objective was the destruction of Hamas. The timing clearly was a reprisal for the surprise dawn attack. But the claim that Israel was waging a war of national self-defense against Hamas, with the rescue of hostages as a priority, was immediately contradicted by the nature of the ensuing campaign. From the start, and as several Israeli politicians have made clear, this campaign was a total war on the 2.3 million Palestinians of Gaza, half of whom are children. In the past three months, Israel has committed a staggering number and variety of crimes under international law.
On October 13, after a week of relentless bombing, the Israeli military issued the first round of evacuation orders. Over a million people living in the north were admonished to run or die. Hundreds of thousands heeded the call, hoping to survive the indiscriminate onslaught by relocating to areas the military claimed would be safe. But the so-called “safe corridors” and designated safe zones where displaced people concentrated were bombed. The death and destruction accelerated following Israel’s ground invasion on October 27. Cities, refugee camps and villages were transformed into cratered wastelands. Hospitals, clinics and ambulances were subjected to unrelenting attacks. A new acronym entered the lexicon: WCNSF—wounded child, no surviving family. Deliberate attacks on civilians are war crimes, and forced displacement can be a war crime and a crime against humanity.
Not for the first time, Israel used white phosphorous munitions, unguided (“dumb”) bombs and 2,000-pound US-made large-capacity “bunker busters.” Failure to distinguish between military targets and civilian sites, the use of non-discriminating weapons and disproportionate use of force are war crimes.
On December 7, more than 660 Palestinian men and boys were detained in Gaza, stripped to their underwear and then transferred to prisons inside Israel. An additional unknown number were taken to military bases where degradation and abuse are rampant and systematic. On December 19, soldiers raided a building in Gaza City where three families were sheltering. They separated the men from women and children and then summarily executed eleven men in front of their relatives. Torture, cruel and inhumane treatment, and extrajudicial executions of captive people in the context of war are war crimes.
At the end of December, the United Nations reported that one quarter of Gaza’s population was on the brink of starvation. Save the Children has warned that deaths from starvation and disease could soon outpace those caused by bombs.[4] The situation continues to worsen as Israel impedes the transfer of food and other humanitarian aid by restricting the number of convoys permitted to enter the Strip. At the Rafah crossing, miles of trucks loaded with aid are stalled as they wait for clearance by Israeli inspectors during which they are unloaded and reloaded multiple times. If the cargo includes a single “forbidden” item—an arbitrary and inhumane designation that includes certain medical supplies, oxygen cylinders, gas generators and tents—the truck is turned away. Siege warfare and intentionally starving a population are war crimes and crimes against humanity.
Palestinians of Gaza are being killed, wounded and displaced in unprecedented numbers. By mid-January, 978,000 people were crammed into UN-run shelters in the southern town of Rafah, with hundreds of thousands more unregistered.[5] Yet Israel continued to issue orders for already-displaced people to make way as ground operations expanded into southern areas. The people have nowhere else to run because the boundaries are sealed, and no area is safe from bombs or snipers.
Does this criminality rise to the level of genocide? That is a question the International Court of Justice (ICJ) was asked to answer. (The ICJ, a UN body based in The Hague, deals with disputes between states and provides advisory opinions on matters of international law.) On December 29, the government of South Africa filed an application with the ICJ alleging that Israel’s conduct violates the Genocide Convention and asked for an expedited hearing and provisional measures, including an order for the immediate cessation of military operations.
The Crime of Crimes
Genocide often is referred to as the crime of crimes because, as per its definition, an intent to destroy groups of people is an exceptionally egregious wrong. History is replete with mass killing of people on the basis of their collective identities and the total destruction of societies. Israeli prime minister Benjamin Netanyahu invoked one such example when he exhorted soldiers to smite Palestinians, analogizing the people of Gaza to the ancient Israelites’ mortal enemy, the Amalekites. But it was the German Nazis’ industrialized extermination of millions of Jews and other “undesirable” peoples during the Holocaust that created the incentive to define and criminalize such practices as genocide. In 1948, the United Nations, then three years old, passed the Convention on the Prevention and Punishment of the Crime of Genocide. This was the first international human rights law. It imbued people with the right not to be willfully destroyed, at least not because of their race, ethnicity, nationality or religion.
A watershed moment occurred in 1993 in the context of the violence attending the disintegration of Yugoslavia, when Bosnia submitted an application to the ICJ accusing Serbia of genocide. Within weeks, the Court instructed Serbia “to take all measures within its power to prevent commission of the crime of genocide.” Fourteen years later, the Court issued its final ruling in Bosnia v Serbia. Despite voluminous documentation of criminality and intent provided by the UN Ad Hoc International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICJ determined that the only incident that rose to the level of genocide was the 1995 Srebrenica massacre. The Serbian government got a pass because the ICJ decided that it had no command responsibility for Republika Srpska forces who committed this genocide.
In 2019, The Gambia submitted an application to the ICJ accusing Myanmar of perpetrating genocide against the Rohingya, a Muslim minority group within the country. The Gambia, which was not in conflict with Myanmar, invoked its duties as a signatory to the Genocide Convention to prevent and punish this crime, and the ICJ accepted the case. (South Africa modeled its application along these lines of signatory duty to enforce the law as well as Israel’s signatory duty to obey the law.) In 2022, Ukraine submitted an application against Russia to the ICJ, accusing Russia of falsely accusing Ukraine of genocide to justify its invasion and aggressive war. The ICJ hastily issued provisional measures calling on Russia to “immediately suspend” its military operations within Ukrainian territory and decided to expedite its consideration of the case.
One month before the South African application was filed, Britain, Canada, Denmark, France, Germany and The Netherlands submitted a joint declaration supporting The Gambia’s allegations against Myanmar, which contained an expansive interpretation of genocide and endorsement of the applicability of the Convention to Myanmar’s deadly and destructive actions against Rohingya.
South Africa Charges Genocide
The South African application to the ICJ is an 84-page masterclass for understanding the Genocide Convention and its applicability to what Israel is doing in Gaza. The document contains abundant details of the cumulatively genocidal consequences of Israel’s military actions since October 7 to kill and make life impossible. It situates these charges in the “broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”[7]
Anticipating the outraged responses of Israel and its supporters that the genocide allegations were pro-Hamas and/or antisemitic and failed to recognize Israel’s right of self-defense, the first paragraph states: “South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory no matter how serious—even an attack involving atrocity crimes—can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention…”
In submitting this application to the ICJ, South Africa was not obligated to prove genocide. That will be decided when South Africa v Israel moves to the trial phase. Rather, the application was designed to persuade the Court of the possibility that genocide is being perpetrated on Palestinians. The evidence put forward to demonstrate Israel’s genocidal intent is a damning collection of statements by political and military officials, including Israel’s president and prime minister, to support or justify the way the war was being waged and the toll it was exacting. The evidence of intent includes the oft-cited quote by Defense Minister Yoav Gallant, uttered in the context of his October 9 order of a complete siege: “We are fighting human animals and we are acting accordingly.”[8] It also includes Gallant’s statements to troops the following day that he had released all constraints on their actions, adding, “Gaza won’t return to what it was before. We will eliminate everything.”[9] Minister of Agriculture Avi Dichter described the eliminationist project: “We are now actually rolling out the Gaza Nakba.”[10]
The following day, representatives of Israel presented the state’s response. While formal courtesies were observed, some derided the South African application as “absurd,” characterized the allegations as unfounded and insensitive to Israel’s right of self-defense and blamed Hamas for the toll of Palestinian casualties. In stark contrast to South Africa’s presentations, the legal arguments were weak, seemingly designed less to persuade impartial jurists than to reinforce Israeli hasbara (nationalist propaganda) that the United States, Germany and some other western governments have echoed by blasting the genocide charge. The most legally specious claim was that the ICJ lacks jurisdiction to hear this case, since there is no conflict between Israel and South Africa. This contention ignores the meaning of “prevent” in the title of the Genocide Convention and the fact that prevention is an obligation for signatories.
A Fateful Moment for International Law
South Africa’s application to the ICJ on behalf of stateless Palestinians—like the war on Gaza that it addresses—is taking political shape as an epic contestation between the Global South and the Global North over the efficacy of international law to protect formerly and currently colonized peoples. The rights of Palestinians are once again a global litmus test.
Before the ICJ issued its decision, the countries and organizations that lined up in support of the South African application include Malaysia, Mexico, Chile, Jordan, Turkey, the 120-member Non-Aligned Movement and the Organization of Islamic Cooperation. Bangladesh and Jordan filed declarations of intervention with the ICJ backing South Africa’s claims. China joined the Arab League in calling for an immediate ceasefire. No Western government sided with South Africa, but Belgium vowed to support any ICJ decision.
Namibia is the present-day country where the first genocide of the twentieth century (1904–1908) occurred when colonial Germany exterminated 75 percent of the Ovaherero and half of the Nama populations. In a media statement issued on January 13, Namibian president Hage Geingob condemned Germany for its rankly hypocritical denial that Israel is perpetrating genocide against Palestinians in Gaza and its criticism of South Africa. Britain was accused of hypocrisy for not maintaining the position it took on The Gambia’s charges in the genocide case against Israel.
The US government is deeply implicated in Israel’s deadly and destructive onslaught in Gaza. The Biden administration, in addition to vetoing a UN Security Council resolution for a ceasefire, side-stepped Congress to escalate the transfer of high-intensity weapons to Israel. Providing support and resources that facilitate genocide can be a form of complicity, which is equally illegal to genocide.
On January 26, the ICJ presented its decision. The Court found plausible evidence that Israel is perpetrating and inciting genocide in Gaza. Although not ordering an immediate ceasefire as South Africa had requested, an overwhelming majority of judges endorsed six provisional measures, including to refrain from and prevent any acts that violate the Convention, to preserve evidence of genocide and to submit a report in one month about compliance with these orders. Even the Israeli ad hoc judge, Aharon Barak, voted with the majority on the measures to prevent and punish incitement and to take effective measures to ensure the provision of humanitarian assistance. Only one judge, Uganda’s Julia Sebutinde, voted no across the board.
This decision triggers obligations for every one of the 153 countries that are party to the Genocide Convention, especially those like the United States that have been supporting and abetting what the ICJ ruled to be plausible genocide. Politically, this interim finding has the potential to further galvanize and empower the global movement that has been demanding a ceasefire. It presents an opportunity to put international pressure in the service of Palestinian rights for a change and to redeem international law, which so often and consistently has failed to protect people from state violence. As Blinne Ní Ghrálaigh so eloquently stated during the South African presentation, “Some might say that the very reputation of international law, its ability and willingness to bind and to protect all people equally hangs in the balance.”
[Lisa Hajjar is chair of the sociology department at the University of California, Santa Barbara].
Endnotes
[1] Mouin Rabbani, “Two Months that Shook the World: The First Phase of the Gaza War,” Intercepted (podcast), December 2, 2023.
[2] Shree Paradkar, “How Israel’s ‘Scholasticide’ Denies Palestinians Their Past, Present, and Future,” Toronto Star, January 21, 2024.
[3] Sherene Seikaly, “Counting Calories and Making Lemonade in Gaza,” Jadaliyya, November 12, 2012.
[4] “Deaths by Starvation and Disease May Top Deaths by Bombs as Families Squeezed into ‘Safe Zones,’ Two Months into Gaza Crisis,” Save the Children, December 9, 2023.
[5] Leanne Abraham and Zach Levitt, “See the Rapid Expansion of Tent Camps in Southern Gaza,” New York Times, January 18, 2024.
[6] Darryl Li, “The Charge of Genocide,” Dissent Magazine, January 18, 2024.
[7] “Application instituting proceedings and request for the indication of provisional measures,” International Court of Justice, December 29, 2023.
[8] Mark Landler, “‘Erase Gaza’: War Unleashes Incendiary Rhetoric in Israel,” New York Times, November 15, 2023.
[9] Jessica Buxbaum, “‘Erase Gaza’: How genocidal rhetoric became normalised in Israel,” The New Arab, November 30, 2023.
[10] Sanjana Karanth, “Israeli Minister Admits Military Is Carrying Out ‘Nakba’ Against Gaza’s Palestinians,” Huffpost, November 12, 2023.
