‘THE 2.3 million Palestinians in Gaza, including over a million children, are extremely vulnerable. There is a grave threat to their existence.”
On December 29, 2023, an “Application Instituting Proceedings” was made to the International Court of Justice in The Hague. It was done in the name of the Republic of South Africa against the State of Israel regarding breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”).
The application is historic. Those teaching in schools of law in universities worldwide are already stating on social media that they will be using the text when teaching students about the International Court of Justice in The Hague.
That South Africa – a country which has experienced international pressure through the years of its apartheid history and struggle for freedom – should be the state to make the application is noteworthy. The document is 84 pages long, containing 151 numbered paragraphs and 574 footnotes to evidence and international case law.
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The press release on December 29 states: “South Africa today filed an application instituting proceedings against Israel before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.
“According to the application, ‘acts and omissions by Israel … are genocidal in character, as they are committed with the requisite specific intent … to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group’ and that ‘the conduct of Israel – through its state organs, state agents, and other persons and entities acting on its instructions or under its direction, control or influence – in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention’.
“The applicant further states that ‘Israel, since October 7, 2023, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide’ and that ‘Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza’.”
It is clear from the full text – all 84 pages of which we have read – that South Africa, as a party to the Genocide Convention, takes its obligations most seriously. Given the history and imprescriptibility of the Holocaust and the way that many Jews – and Israeli Jews in particular – live with a deep and abiding fear of the horror of the Holocaust beginning again, this is a grave situation indeed.
The October 7 attacks have awakened this fear, and for those of us who have not had to flee for our lives, understanding what it means to live in such fear, and to have such fear taught through media and education programmes, is not straightforward.
In the full text of the application, the country states: “South Africa is acutely aware of the weight of responsibility in initiating proceedings against Israel for violations of the Genocide Convention. However, South Africa is also acutely aware of its own obligation – as a state party to the Genocide Convention – to prevent genocide.”
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The text of South Africa’s application is full of examples of statements from medical bodies such as the World Health Organisation and Doctors Without Borders, and statement after statement from senior United Nations representatives. The detail is profound and careful. The public hearings will be heard in the International Court of Justice on January 11 and 12, this week, in The Hague.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the court is at the Peace Palace in The Hague (Netherlands).
Acts of violence are messy. Facts are often hard to determine. On the unprecedented scale we are witnessing in Gaza – one where no-one can fail to see that the suffering is at horrifying levels – we are already witnessing the contestation and fabrication of “facts” and the wide use of propaganda. In war, it is a truism, the first casualty is truth.
This is precisely why it is vital that documents such as the application initiating proceedings from South Africa are meticulous in their documentation, sources and precedents for decision-making.
As people with friends and colleagues in the Gaza Strip and grieving many losses ourselves after 15 years working with academic and NGO colleagues in Gaza, the prospect of a hearing for what we are witnessing ourselves is a source of some solace.
Just today, one of us received a message from a medical colleague trying to work in Gaza serving 2.3 million people.
They said: “People are coming to my clinic with severe malnutrition, dryness and drinking-water deficiency represented in corneal ulcers due to eye tears loss, or retinal detachments leading to irreversible vision loss in young people, and in this point, I am facing teens with senile changes after severe psychological trauma that comes in the age of 60s, like having cataract in the eye lenses and white hair lashes. […] I am alone – the only primary eye care doctor working for four cities and refugee camps.”
This is why we commend South Africa’s initiative to bring evidence of crimes in breach of the Genocide Convention to the International Criminal Court for adjudication. This is why we read South Africa’s Application Instituting Proceedings, publicly, in Nelson Mandela Place in Glasgow, marking the end of the Twelve Days of Christmas.
Glasgow’s witness and solidarity with South Africa, Gaza and the Occupied Palestinian Territories
In 1986, Glasgow, memorably and with its signature humour, brought attention to the plight and injustice in Apartheid South Africa by changing the name of St George’s Place in the city centre to Nelson Mandela Place.
This meant that all letters to the South African consulate-general, who was based on the fifth floor of the Stock Exchange building, would bear the name of the country’s most famous political prisoner.
In a speech at the City Chambers in Glasgow on October 9, 1993, Nelson Mandela said: “While we were physically denied our freedom in the country of our birth, a city 6000 miles away, and as renowned as Glasgow, refused to accept the legitimacy of the apartheid system, and declared us to be free.”
Over the past three decades, since the post-apartheid government was elected in South Africa, we have witnessed the reduction to ruins of countries from Iraq to Afghanistan, Syria to Yemen and beyond. In the past three years, we have witnessed the mass destruction of life in Tigray, Ethiopia. As we write, we are witnessing devastating wars in Ukraine, Sudan and the Gaza Strip.
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At a time when international institutions are being frustrated in their rigorous efforts to work for a sustainable, permanent ceasefire and a just peace, South Africa gives us a glimmer of hope by discharging its obligations as a party to the Genocide Convention.
If there is one refugee tragedy that outlasts all other calamities, it is the destruction of lives and livelihoods of the Palestinian people who have been yearning for a life of dignity since the Balfour Declaration in 1917. For the past 75 years since the Nakba, Palestinians have been abandoned to live on the edges and borders of time and space, under perpetual occupation and many as perpetual refugees.
They have been violated, displaced, dehumanised and are now being massacred before the eyes of the world, whose most powerful leaders largely either remain silent, seemingly powerless to make the violence stop, or complicit in the continuation of the violence.
We have learned that silence in the face of unprecedented destruction of life is not passivity; it is a violent activity. Powerlessness is self-inflicted, and complicity is a deliberate decision to abet a crime deemed by international legal experts, academics and now – through its application to The Hague – the South African government, as amounting to ethnic cleansing and genocide.
We believe that the unfolding preventable tragedy before our eyes – and any forms of complicity and points of collusion in the disaster befalling the Palestinian people – must be fully investigated, and perpetrators held to account.
As fellow humans, we have a responsibility to stand with the suffering and destitute. Loss, weariness, fear, powerlessness and defeat are part of the fugitive nature of our human existence, but we must overcome them to rescue humanity from the shackles of violence.
If perhaps horror and loss can be used to help us stay connected in these times of profound grief, if powerlessness and defeat are allowing us to build radical solidarity from beneath old and enduring violent powers and logic, then those suffering will never be forgotten, abandoned to cry alone or permanently annihilated.
Why it matters
Glasgow's former Lord Provost, after speaking with Mandela when he received the Freedom of the City of Glasgow, was reported by the BBC as saying: “He confirmed there was a grapevine and through that he’d received these snippets of information. So, at the time, he had known about the award, and it kept him and his fellow prisoners going.”
We, too, as people who know those suffering in regions of the world experiencing persecution and conflict, can confirm that it matters what we do.
That there is no action however small or seemingly insignificant does not mean the world to those losing hope. It may not make a difference today or tomorrow and it most certainly won’t be perfect, but again, to quote a sermon from Martin Luther King: “We shall overcome because the arc of the moral universe is long, but it bends toward justice.”
What you can do
The UK acceded to the “Genocide Convention” on January 30, 1970. As such, and as a nation within the UK, Scotland too has responsibilities regarding the prevention and punishment of the crime of genocide.
In light of the Republic of South Africa’s Application Instituting Proceedings at the International Criminal Court, you might request through your MP that they write to the Foreign Secretary and Prime Minister, and through your MSP that the First Minister (below) write to the Prime Minister and Foreign Secretary, or other most appropriate representative, asking firstly if HM Government supports the action of South Africa and will also discharge its obligations under the Genocide Convention, and secondly, if HM Government will not support the action, if it will supply detailed evidence as to why, in the light of the evidence provided by South Africa, the UK will not uphold its obligations as a party to the Genocide Convention for more than 50 years.
It is imperative in a matter of such grave international import that states are held accountable. It is imperative that the public understands the decisions of the UK Government and the evidence is fully transparent. In the event of a decision in The Hague that a breach of the Convention has occurred, UK decision-makers will be accountable and may face proceedings for their failure to uphold the Convention.
Imagining conditions for peace
We write today as people grieving far too many losses even at this distance. Grief is an act of love, rage and action. We need grief that transforms itself into a profound form of questioning, which then leads to profound, meaningful actions.
Grief as a form of activism highlights our radical dependence on one another and serves as a reminder that without the other, we are nothing more than breathing bodies.
It opens the door to the realisation of our radical dependency on others, meaning that we must coexist with and among others. In short, we cannot just wipe out those we do not like. This is the basis of the Genocide Convention.
These acts of witness – also known in Arabic as “sumud” (steadfast resilience) and in South Africa as “ubuntu” (that a person is made by other people) – generate a collective oasis from which the conditions for peace can be imagined. In marrying the concepts of sumud and ubuntu, we are calling for a praxis of steadfastness in recognising that one is human through the humility of the other: “You’re human; therefore, I am.”
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And so we stand, and read aloud, the difficult, long, important witness of South Africa, in Glasgow. We stand and feel the weight of the words as speakers and listeners, and evidence in each of our individual bodies.
We do so in gratitude to legal colleagues in South Africa for its hard text and in solidarity and hope, with and for our friends and colleagues in Palestine.
Alison Phipps, Hyab Yohannes and Pinar Aksu are all scholars working in the Unesco Chair for Refugee Integration through Languages and the Arts at the University of Glasgow.
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