The ANC had many reasons for petitioning the World Court on the grounds that Israel has been committing genocide in Gaza. Let’s focus on its demand for justice.

After the horrendous attack on Israel by Hamas on 7 October 2023, Israel’s response has been vicious. There are estimates of more than 30,000 Palestinians being killed since the invasion of Gaza, many of them women and children. And the fighting is not only continuing but intensifying as Israel approaches Rafah, the final safe zone in the Gazan south. Hospitals have been destroyed; the spectre of famine is ever-present as Israel has limited supply chains.

Civilian casualties are out of control

In its war to root out Hamas can only end in a Pyrrhic victory – since inflaming an entire population to root out enemies is hardly a strategy for long-term peace.

This is the very definition of “crimes against humanity”, namely – assaults, death and casualties among civilian populations during a time of war that go beyond what cannot be reasonably brushed off as “collateral damage”.

But does it amount to the crime of genocide? And does this very discussion rest on impoverished concepts in our possession to describe crimes worthy of attention by international law? Are more nuanced concepts of gross violations of human rights needed to pinpoint the nature of the crime in a way that does not, just perhaps, rely on a fetishised concept of “genocide”, overused to the point of near meaninglessness?

South Africa’s argument that what is happening in Gaza is a case of genocide was heard and received without protest by much of the world, and the current consensus seems to be that “genocidal acts” are being committed.

The question is, what does that mean? What are genocidal acts, short of a programme of genocide? And how do they differ from crimes against humanity? This is not merely an academic question. It is about the lens through which we view and respond to the world. Apt responses to what is going on depend on describing what is going on aptly; it is a question of how to characterise the world and respond to it.

Read more in Daily Maverick: Middle East crisis news hub

The International Convention on Genocide of 1948 was taken up by the United Nations (which has sadly played a role of noticeable absence during this Gaza conflagration – a topic for another conversation). The UN Covenant on Genocide of 1948 defines genocide in Article III as: “Killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group.”

If we apply this definition, the case against Israel is unclear since the Israeli population is divided: on the one hand, there are voices within Israel that recall Kurtz’s chilling remark at the end of Joseph Conrad’s Heart of Darkness: “exterminate the brutes”. And others who speak of doing the nasty in a way that seeks to minimise civilian deaths when the “enemy” resides within, even scrupulously.

In short, there are genocidal voices within that nation, but something less than a programme of genocide, and here lies the conceptual problem. If we focus entirely on Israel’s acts as the basis for judgement, rather than its voices, the results are also unclear.

The concepts of crimes against humanity and genocide emerged after the Nazi crime, whose ugliness and scope, both in terms of numbers and the international people and nations involved, went so far beyond the then legal, moral and political conceptual norms of crime, that it demanded the coining of new concepts adequate to their scope and horror.

From the mid-17th century until World War 2, the concept of nations was formulated and sustained on the basis of the Treaties of Westphalia of 1648, which in the aftermath ended the Europe-wide anarchic wars of religion between Protestant and Catholic populations in Europe.

South Africa was not unaffected by those wars, since Protestants emigrated to South Africa, fleeing violence and would build the ranks of the Afrikaans community. The treaties entitled each nation state to absolute internal sovereignty, an entitlement which lasted until 1945, when it was clear that:

• The scope of the Nazi crime was not contained within its nation state; and
• That Germany was hardly in a position to prosecute crimes committed by itself in 1945.

Hence the importance of a sea change in the character of international law, morals and politics, which came to be called the culture of humanitarianism, as opposed to nationalism.

But what concepts were to be deployed by international law in adjudicating the Nazi crime? And here it was two legal minds whose families perished in the East during the Nazi rage against Jews, who called for this invention.

Stalin famously said: “If you kill one person it’s a tragedy; if you kill two million it is a statistic.” (He was responsible for the deaths of five million kulaks, as it happens, in the 1930s, a genocide based on invoking “class”, since they were peasant owners of land whom Stalin wished to eliminate to pave the way for his disastrous farming collectives.)

Lauterpacht invented the concept of crimes against humanity, which was the reigning concept empowering the Nuremberg trials of 1945-1947; and Lemkin, the concept of genocide, meaning the targeting not only of individuals, but groups for elimination (in part or whole). He had been much exercised by the Armenian genocide of 1915 and should have been equally exercised by the genocide in then South West Africa (now Namibia) against the Nama and Herero of 1905-1907, but wasn’t: it was off the European radar screen – being African.

The bugaboo regarding genocide is proof of intent, as any lawyer knows. Here the formation of the concept took place in conditions very different from today. There was an indisputable programme of elimination of Jews and Gypsies formulated at the Wannsee Conference of 1942 and instrumentalised by the entire Nazi apparatus. Intent was not in doubt. Nor in the Armenian case nor in that of South West Africa.

South African crimes committed during the apartheid period, however, fit uncomfortably in both the categories of crimes against humanity and genocide. So South Africa judiciously invented its own concept: that of “gross violations of human rights”, which guided the Truth and Reconciliation Commission.

It is a similar expansion of concepts which is demanded to fit the Israeli case. My own view is that the whole discussion of genocide is misplaced, because were Israel to be cleared (legally) of genocide it might then seem that, what it is doing really isn’t so bad, not the worst anyway.

And that is exactly the wrong way to look at what it is doing, which as I said, though vicious, is confused, violent, the product of multiple points of view and, above all, unstable, changing as the war continues.

We no longer live in a world where genocidal intent is present with the kind of programmatic clarity that gave rise to the initial formulation of the concept after World War 2, and we need to live with that.

Our world requires the creation of more distinctions and more subtle concepts so that we don’t get caught up in discussions which obscure the basic point that action is required with the best, most appropriate terms prompting and guiding it – especially since no effective action apart from the hopelessly ineffectual comes from the UN beyond aid relief (which does matter).

What South Africa could do to help next is remind the world that it had set a precedent relative to the country by inventing a new concept (gross violations of human rights) to orchestrate the Truth and Reconciliation committees. That concept is not applicable today, but the point is that it was invented at a time, and for a purpose, and that was laudable.

I am sure there will be people who disagree with what I write. The point is to prompt discussion. DM