As a child of apartheid, I’ve always tried to live my “Never Again”. One of the ways is to learn how crimes against humanity (the classification of apartheid), war crimes and genocides start. To have this knowledge means you can do something about it and be part of the “never again” army – or that’s how I’ve reasoned as a journalist.
And so, I study this phenomenon of horror, making it my business to attend holocaust and genocide memorials and museums at home or in places to which I travel.
Rwanda’s genocide memorial is compulsive visiting. How did we let such a thing happen at a time when South Africa was celebrating its freedom from the yoke of apartheid? One million people were slaughtered.
Journalism’s culpability in Rwanda’s genocide holds me triply accountable for any instance of othering or hate speech in my work.
To wake up on 7 October and read of the killings on the kibbutzim near Gaza and the music festival in Israel’s Negev desert was unbelievable. Those beautiful young people lay slain in the sand. And what has unfolded since is even more unbelievable. The horror. The horror.
The dead Palestinian babies are like broken porcelain dolls, as one blogger wrote this week. The children are wrapped in the white kafan (cloth) that Muslim people are buried in, ready for internment in mass graves.
The mothers scream with heartbreak.
The trucks of food are stuck at the Rafah border (with Egypt, like a contemporary Checkpoint Charlie) as belligerent young Israeli soldiers slowly comb through them as the risk of famine grows.
Why create conventions?
Why did humankind establish a Genocide Convention in 1948 (as a response to the Holocaust) if not to learn from its genesis?
As Brinny Ní Ghrálaigh, KC, the barrister who joined South Africa’s legal team in The Hague to argue the case of plausible genocide against Israel, put it, this is the first live-streamed genocide we are living through.
Until now, it has been as if we are entirely helpless to do anything except scream into the social media void or attend a Palestine solidarity event. Now, our government has done something significant.
“The daily statistics stand as clear evidence of the urgency and the risk of irreparable prejudice: on the basis of current figures, on average 247 Palestinians are being killed and are at risk of being killed each day, many of them blown to pieces. They include 48 mothers each day – two every hour,” Ní Ghrálaigh said at the International Court of Justice on Thursday.
Read more in Daily Maverick: Israel-Palestine War
South Africa’s decision in December to take Israel to the ICJ to argue that it violates its obligation as a signatory to the Genocide Convention has been a welcome direct action – something to get behind.
More than 1,000 organisations and individuals and several countries (none in the West, a few in Latin America, most from the Organisation of Islamic Co-operation) supported South Africa’s case. The case seeks to stop Israel’s bombing of Gaza and open up proper humanitarian corridors. Arguing whether or not it is a genocide will take years. For now, the urgency is to stop the killing.
“South Africa has a long history of close relations with Israel, so it did not act immediately,” said Prof John Dugard, who helped craft the ICJ legal strategy.
On nine separate occasions, International Relations Minister Naledi Pandor or the government has warned of rising genocide in Gaza and the rest of Palestine.
“Despite these harsh accusations, Israel has persisted in its genocidal acts,” said Dugard to argue that South Africa has a prima facie case against Israel.
The case has become a focal point for those who have watched the past 95 days in mounting disbelief.
South Africa built an A-team of local and global talent, showing that diversity and excellence are never mutually exclusive. Dugard, Ní Ghrálaigh, Prof Max du Plessis and Prof Vaughan Lowe brought the international law muscle. Adila Hassim opened magnificently with righteous and tempered lawyer’s fury to set out four strands of a looming genocide.
Tembeka Ngcukaitobi argued the genocidal intent. With his knowledge and experience of apartheid, land dispossession and dehumanisation, his argument had the authenticity of experience.
The value of excellence
By building an excellent legal team, South Africa’s chances of securing preservation orders to cauterise what is rapidly becoming a genocide seem good.
“The main point is much simpler. It is that no matter how outrageous or appalling an attack or provocation, genocide is never a permissible response,” said Lowe.
“Every use of force, whether used in self-defence, in enforcing an occupation, or in policing operations, must stay within the limits set by international law, including the explicit duty in the (Genocide) Convention.
“South Africa believes that the publicly available evidence of the scale of the destruction resulting from the bombardment of Gaza, and the deliberate restriction of the food, water, medicines and electricity available to the population of Gaza, demonstrates that the Government of Israel – not Jewish people or Israeli citizens, the Government of Israel and its military – is intent on destroying the Palestinians in Gaza as a group, and doing nothing to prevent or punish the actions of others who support that aim,” said Lowe.
South Africa was not bringing any action against Hamas because it is not a state party, nor is it a signatory to the Genocide Convention, he said, to pre-empt Israel’s defence.
The ICJ has granted preservation orders and provisional measures against Myanmar, Bosnia, Ukraine (against Russia), Georgia (against Russia), Armenia (against Azerbaijan), Qatar (vs UAE) and Iran (vs USA), amongst other cases.
“The international community has failed Palestine for so long. Core rights are being violated. Israel has committed and is committing acts capable of being characterised as ‘genocidal’,” said Du Plessis.
“The events unfolding in Gaza at the hands of the Israeli forces are frighteningly unprecedented,” he said, adding that the orders being sought by South Africa were not novel.
Elementary principles of morality
“The Genocide Convention is about the confirmation and endorsement of elementary principles of morality,” said Ní Ghrálaigh.
It was a grand day to be South African and part of something potentially impactful for human rights. It was honourable to see such fine talents from the Global South (with two adopted from the UK) arguing for the upholding of international laws that are so often treated with impunity by the strongmen who misrule the world.
Justice and Correctional Services Minister Ronald Lamola said in his opening that SA’s application is an act of ubuntu with Palestine.
Another elementary principle of morality is that it can’t be selective. South Africa did not do right by the Ukrainian people under the Russian whip. People-to-people solidarity with them and the people of Sudan is tepid by comparison.
And who knows what President Ramaphosa was thinking by cosying up to Mohamed Hemedti of Sudan’s Rapid Support Forces while a brutal war rages there.
South Africa can’t simply pull out of the UN conventions to protect refugees, as Home Affairs Minister Aaron Motsoaledi is trying to do. (See Marianne Merten’s report here.)
And the government will have to be substantially less mealy-mouthed when an opposition figure like Gayton McKenzie forcibly sent Zimbabwean people back over the river, as he did earlier in January.
Ubuntu is beautiful, as we saw this week, and like the Genocide Convention, it centres on human life – all human life. DM