I think that South Africa presented the stronger case of the two. I say this for three reasons.

The first is that South Africa’s case was embedded in the case of the ICJ on the issue of genocide and the prosecution of genocide in terms of the genocide convention. It is interesting that the Convention on the Prevention and Punishment of the Crime of Genocide is one of the oldest conventions of the United Nations. It was signed in 1948 and came into force in 1951. But no case was accepted by the court (in spite of an attempt in 1951 by African Americans led by W.E.B. DuBois and others in relation to lynching in the United States) until the 1990s, in the case of Bosnia vs Serbia.

That case was brought in the early 90s initially with a request for provisional measures like South Africa has requested, and those were not granted. What happened after that case was various incidents of ethnic cleansing around Bosnia, including the massacre at Srebrenica, where many thousands were systematically murdered, especially men. That case was only finally decided in 2007, though the court cleared Serbia of direct involvement in the genocide. But that case has always been seen as a failure to prevent genocide because the thing around the genocide convention is that it’s not just for prosecuting genocide or the intention. The spirit of it was to prevent genocide from happening ever again and to prevent actions, and that’s what people forget.[...]

The next time the ICJ tried a genocide case was 10 years later when The Gambia brought an application against Myanmar concerning the Rohingya population on behalf of the Organisation of Islamic Cooperation (OIC). Much of South Africa’s case is based on the submissions made by Gambia in that case, in which provisional measures were granted. South Africa’s case uses much of the same language used by the court in granting provisional measures against Myanmar. In fact, Myanmar used a lot of the same language that Israel did in claiming that no dispute existed between it and Gambia with the conflict happening within Myanmar, but the ICJ found that as a signatory to the convention, a dispute did exist. So I suppose all of this is to say that the first thing is South Africa is the stronger case in that it’s very much rooted in the court’s case law.

The second thing is that South Africa has done something which hasn’t been done before, which is to collect all the evidence in one place. The information used is sourced from the UN itself in many of these instances, and so the credibility of it shouldn’t be called into question, even though Israel would very much like to do so. They kept referring to this volume that had been submitted to the judges, but it’s not publicly available anywhere. But if you look at the record of proceedings from South Africa and from Israel, South Africa’s record of proceedings is very well-referenced. Every statement and every statistic is backed up in a very detailed way. If you look at the Israeli case, there may be one or two references to case law, but it’s very much a vibes-based case, saying basically, ‘just trust us’.

The third reason is that South Africa’s case is very much placed in the historical context of the 75-year occupation of Palestine by Israel. So if you look at the application, it is a lot more detailed in tracking or in placing everything from the seventh of October in relation to everything that’s happened in the 75 years before. This helps South Africa build the case for genocidal intent. For example, linking the statements of officials to the statements made by soldiers on the ground was very important.[...]

So we’ve had the hearing on the granting of provisional measures, and remember that the court doesn’t have to find that Israel is committing genocide to grant these. All they have to find is that there is a prima facie case to be made or sufficient evidence on the facts presented. And it does look like some of the things happening could fit into the definition of genocide. That’s why South Africa’s case emphasised the plight of dying babies and pregnant women. The thing with preventing births is that you are trying to end a line of people. How do you characterise bombing hospitals with people inside of them, right? Does it fit into the spirit of the genocide convention? The court must still decide all of that. [...]

You know, the European countries especially have a serious blind spot when it comes to Israel. This is in the way they’ve come to view the formation of Israel as a direct atonement for Germany’s sins when it comes to the persecution of Jewish people. There’s actually been a lot of decolonial work around how there’s this view like the Holocaust was perpetrated by aliens or something, that it’s a crime that is so unique and egregious that it compares to nothing that ever came before. There’s a socialisation to imagine that nothing could ever be that bad or compared to it. It is considered blasphemous to compare what happened in the Holocaust to anything else that ever happened, even though there’s a direct line from the genocide that Germany committed in Namibia to the Holocaust. [...]

The US has been selling these 2,000-pound bombs, which are not meant to be used in densely populated areas but which have been dropped onto Gaza. The USA is the only country which manufactures these bombs. So they face the horrible situation of being complicit in genocide, potentially. I’m therefore not surprised that they’ve come out and claimed that South Africa’s case is illegitimate and there’s actually no genocide charge to answer to because they have to protect themselves in case the court ruling goes against them. So it’s cynical in political terms, but this is laying the foundation to claim innocence and deny it when the time comes. [...]

There’s a portion of South African society that still needs to grapple with the fact that South Africa is no longer part of the West. South Africa has not been part of the West since 1994. Nobody on the international scene thinks of South Africa as being part of the West anymore. This case is actually in line with South Africa’s positioning on the global stage since the African National Congress came into power. I mean, one of the first things that the government did in 1994 was to formally join the Non-Aligned Movement. South Africa’s neutral stance in the Ukraine-Russia war showed this, but this war in Palestine has really shattered this myth of our alignment with the West. This war has shattered many myths, including the myth of Western values.