As Israel’s war against Hamas in Gaza entered its fourth month following the Oct. 7 Hamas attack on Israel that killed 1,200 Israelis and captured 240 hostages, the IDF’s air and ground assault has killed an estimated 23,000 Palestinians, mostly women and children, with 59,000 more wounded. Another 7,000 residents are reported missing, with most presumed dead. The war has displaced an estimated 90 percent of the people in Gaza and plunged an estimated 1 million Palestinians into hunger and starvation, according to the World Health Organization.
Amid worldwide protests and condemnation of Israel’s brutal war in Gaza that many view as vengeance-driven collective punishment, South Africa has filed an International Court of Justice case accusing Israel of committing genocide in Gaza. The ICJ will start hearing the case Jan. 11 and 12.
Between The Lines’ Scott Harris spoke with Robert L. Herbst, a human rights lawyer in New York, who formerly served as a federal prosecutor in Chicago and Philadelphia. Herbst is co-chair of the U.S. chapter of the Israeli Committee Against House Demolitions and former coordinator and member of the Westchester New York Chapter of Jewish Voice for Peace. He has also served as an independent investigator and prosecutor for the International Criminal Tribunals for Rwanda and Sierra Leone. Here he summarizes South Africa’s 84-page case against Israel that presents evidence of Israel’s genocidal acts and statements in horrifying detail.
ROBERT HERBST: The definition of genocide comes basically right from the 1948 Convention on the Prevention and Punishment of Genocide—essentially acts intended to bring about the destruction of a substantial part of a national, racial and ethnic group. The reason why Palestinians in Gaza qualify for that is that basically the 2.3 million people of Gaza are a substantial part of the 5.5 million Palestinians under occupation.
I think anybody would agree that that is a substantial part of the Palestinian national, racial ethnic group. It also documents the genocidal acts which violate the convention and that includes killing Gazans en masse, causing serious bodily and mental harm and inflicting on them conditions of life, calculated to bring about their physical destruction.
In addition to the numbers, Israel has basically laid waste to the entire Gaza Strip. More than 2 million people of the 2.3 million have been displaced. The destruction has been enormous. At the time of the application, it was 60 percent of Gaza’s housing stock; it is now up above 70 percent. In addition, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and architectural sites. The critical infrastructure: water, sanitation facilities, electric networks and a relentless, they say, assault on the Palestinian medical and health care system, which leaves all those injured and those in need of medical care basically without that.
So if you get wounded and injured, you basically have very, very little chance of survival. So essentially, the allegation is that Israel is continuing to reduce Gaza to rubble, killing, harming and destroying its people and creating conditions of life calculated to bring about their physical destruction as a group. So that’s essentially what the genocide definition is and the charge.
SCOTT HARRIS: Robert, I certainly want you to summarize the most important points our listeners may not be aware of in terms of the evidence that South Africa has presented in this filing. And I further wanted to ask you what South Africa has to prove before the International Court of Justice to get a verdict that validates the case that they’ve laid out here.
ROBERT HERBST: They basically have to prove genocidal intent and the genocidal acts covered by the convention. So in terms of intent, you know, the prime minister cited the biblical story of the total destruction of the Amalek by the Israelites. And that biblical passage essentially says, “Spare no one, but kill alike men and women, infants and suffering, oxen, sheep, camels and asses.”
The president of Israel has said, and these are all quotes: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware or not involved. We will fight until we break their backbone.” He’s talking about breaking the backbone of the civilians. Not Hamas—of the civilians.
The minister of defense, Mr. Gallant: “No electric city, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly. Gaza won’t return to what it was before. We will eliminate everything.” The minister of energy and infrastructure: “All the civilian population in Gaza is ordered to leave immediately. They will not receive a drop of water or a single battery until they leave the world. Not Gaza, until they leave the world.
The minister of heritage: “There is no such thing as an uninvolved civilian in Gaza.” The deputy speaker of the Knesset: “Now we all have one common goal—erasing the Gaza Strip from the face of the earth.”
And I can go on because this is all laid out in this application—which if people have the time, the stomach to read. It is worth worth reading. You can find it on the Web.
SCOTT HARRIS: Robert, what impact will a finding of guilt from the International Court of Justice have on Israel? Is it enforceable? Israel for decades has ignored numerous findings that it’s breaking international law and continues to violate a whole slew of United Nations resolutions for illegal settlements and a lot more.
ROBERT HERBST: Yes, well, if the court issues a judgment against Israel, that’s binding. And if Biden continues his support for Israel, he can veto any enforcement. There’s no question about it by the Security Council. I think it would be a moral disaster for the United States if he did it, but he might well do it. And I think regardless of whether it’s enforced, I think it’s a moral catastrophe for Israel and the Jewish people.
And I’m speaking as a Jewish civil rights lawyer. If the Jewish state stands convicted in an international court of genocide within the lifetime of those who were children during the Holocaust, I think it is a catastrophe that will have a moral stain or tarnish that’s similar to the moral stain and tarnish the Germans feel, the German people feel you know, 80 years after the Holocaust.
More information can be found in Robert L. Herbst’s Mondoweiss article, “South Africa appeals to the International Court of Justice: Stop Israel’s genocide in Gaza.”
Listen to Scott Harris’ in-depth interview with Robert Herbst (19:15) and see more articles and opinion pieces in the Related Links section of this page.
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