Israel has now responded to South Africa’s allegations of genocide in Gaza. In its submissions at the International Court of Justice (ICJ), Israel’s lawyers relied on a combination of legal and political arguments insisting that is not committing genocide.

This is not a post about whether or not the genocide threshold has been met or will be met. The ICJ’s judges are competent and capable of coming to their own conclusions on these allegations. Instead, this article responds to four issues regarding the alleged genocide in Gaza and Israel’s response at the ICJ.

Genocides don’t just happen

Genocide is a process, not an event.

States don’t commit atrocities by mistake. Genocide requires careful cultivation. The population in whose name a genocide is committed must be conditioned, desensitized, made to feel superior, as well as cognitively and physically distanced from the suffering of those singled out for genocidal violence. 

Genocide is likewise not a failure of institutions or politics, but the result of the successful capture of those institutions, the application of discriminatory laws, atrocity denialism, and the manipulation of public opinion combined with the dehumanization of the group targeted with extermination. It is not bloodthirsty monsters that commit genocide. Instead, as both Hannah Arendt and Zygmunt Bauman taught the world in relation the Holocaust, genocide is organized and orchestrated by bureaucrats.

Why does this matter? Because if Israeli authorities and the international courts had addressed widespread allegations of war crimes, crimes against humanity, and apartheid committed against Palestinians, the very grounds of South Africa’s case against Israel would almost certainly not exist. 

To be sure, Hamas might still be the genocidal entity that it is, but it would almost certainly have little popular support, let alone power, if the basic rights of Palestinians had respected, protected, and promoted as opposed to systematically violated over decades. And again, the grounds that South Africa put forward in its application to the ICJ to claim that genocide has been taking place in Gaza would likely not exist.

Had the illegal blockade on Gaza not been imposed for the last seventeen years, Gazans might not be starving to death and have enough medical care to survive this war. If those Israeli officials who incite the ethnic cleansing and apartheid were in jail rather than normalizing ethnic cleansing on TV and in cabinet, there would be no grounds to suggest they incited genocide. If settlers were prohibited from stealing land in the West Bank and sanctioned or punished for doing so, it would be much harder to connect any risk of genocide in Gaza to the mistreatment of Palestinians in the West Bank. The theft of land, after all, is a central, motivating feature of all genocides.

Impunity defines this conflict. South Africa’s case is a symptom of the failure to meet the demands of justice. Had Palestinians and Israelis had the opportunity to plead their cases and seek and secure meaningful accountability, perhaps there’d be no reason for the ICJ proceedings.

The key point is the obligation to prevent genocide 

The full name of the Genocide Convention is the Convention on the Prevention and Punishment of the Crime of Genocide. As International Law Professor Rob Howse writes: “the genocide convention is concerned above all with prevention, and thus should be applied long before a situation metastasizes into full-blown and possibly unstoppable annihilation.”

In 2007, the ICJ decided that all parties to the Convention are under the obligation to prevent genocide wherever there is a serious risk of it being committed, and that this obligation exists even in the absence of a legal determination that genocide has been committed. 

What constitutes a serious risk of genocide? The very same facts laid out above: systematic impunity for and denial of atrocities; the capturing of institutions and government bureaucracies by those who endorse collective punishment and ethnic cleansing; and the dispossession of resources, theft of land, and placation of those do both.

The risk of genocide is also evident in the various statements by Israeli leaders dehumanizing Gazans and inciting large-scale violence against civilians and the impunity with which such statements are made. Not one Israeli official deploying such rhetoric has been prosecuted.

Whatever one may think about whether the genocide threshold has been met in Gaza (and reasonable people can disagree on this legal matter), there is zero doubt that there exists a non-negligible risk that genocide is being or will be perpetrated against Gazans. States are under an unambiguous obligation under international law to act to prevent it. 

South Africa’s role in going to the ICJ

It is this duty to prevent that motivated South Africa’s application to the ICJ, and the core provisional measure South Africa is seeking from the Court is consequently an end to Israel’s military operations in Gaza. Whether or not will be is granted is unclear, as Adil Haque points out. But this provisional measure should be understood for what it is: an attempt to protect civilians in Gaza, including Israeli hostages, from harm, genocidal or otherwise.

Some have suggested that South Africa is wrong to bring this case to the ICJ because it previously refused to surrender former Sudanese President Omar al-Bashir to the International Criminal Court (ICC) to face genocide charges. South Africa’s refusal to surrender Bashir was deplorable and wrong. One of the country’s lawyers in the ICJ case, Max du Plessis, was among those who successfully argued in court that South Africa violated its obligations under international law by not surrendering al-Bashir to the ICC in 2015.

No state’s record is clean. If all states that previously failed to meet their obligations under international law were barred from bringing cases to the ICJ, then all states would be prohibited from bringing cases to the ICJ. Indeed, no one would make the argument that Israel could never go to the ICJ because of its close relationship with the Apartheid regime in South Africa or the fact that it almost sold that racist regime nuclear weapons. 

To hold Hamas accountable, support the ICC

At the ICJ, Israel’s lawyers argued that Hamas, and not Israel, has committed genocide. Lawyers at the proceedings – including the judges – are surely sympathetic to the argument that Hamas has committed horrific atrocities and should be held to account. In the very first paragraph of its application to the ICJ, South Africa states that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilian3s and other nationals and hostage-taking by Hamas and other Palestinian armed groups.”

But the ICJ cannot address Hamas’ atrocities, including acts of genocide, because it is limited to deciding disputes between states, which Hamas is not. If Israel is genuinely interested in holding Hamas leaders to account, however, it can support the ICC. The Court has an ongoing investigation into the situation in Palestine and can prosecute Hamas perpetrators.

At every turn, Israel has attacked the ICC, at times even suggesting that the Court was implicated in terrorism. If Israel is serious about holding Hamas perpetrators accountable, it should reverse course, cooperate with the ICC, allow investigators into Gaza, and submit any evidence it has to the Court. 

Law, not War

Over 10,000 children have been killed in Gaza since October 7th. On average, ten children lose a leg or both every day. The number of slain journalists stands at eighty-two. Over eighty-percent of the population faces starvation. So many homes have been destroyed that some are calling it “domicide”. Open support for ethnic cleansing among Israeli ministers continues. 

These are facts – not opinions. Genocide or not, they cannot be wished away. They demand justice.

Palestinians deserve to know that states will act to prevent atrocities and support accountability efforts. Gaza’s children deserve to live to see another day, to know where their meal is coming from, and to believe their parents will stay alive long enough to be their parents.

The commission of mass atrocities, including genocide, is a process. It is a process that has rightly entered the courts.