Heterodox scholars frequently criticize mainstream international law for thinking in terms of crisis, rather than structure, and for focusing on spectacular outbursts of violence, as opposed to the mundane structures of global political economy that result in the premature death and maiming of millions. Nowhere have these faults been more evident than in the text, subsequent interpretation, and rhetorical invocations of the Genocide Convention, which have construed the crime of genocide in notoriously limited terms.
Initiated in late 2023, South Africa’s genocide case against Israel at the International Court of Justice (ICJ) took a more expansive perspective. In this brief post, I will argue that the case should be seen, in part, as an effort to construct a structural, historically-grounded, and political economy-informed understanding of genocidal violence that nevertheless remains within the framework of the Convention and retains its legibility to a court of law. Since the skills of South Africa’s team have proven to be beyond reproach, the outcome of this case will determine whether international law can be re-interpreted in ways that make visible the role of political economy in mass violence and even extermination.
Restricting and Expanding the Scope of Genocide
It is well documented that the definition of genocide adopted by the Genocide Convention was narrower than what Raphael Lemkin, the Jewish-Polish lawyer who coined the term, had envisaged when he called for it to be made an international crime. For instance, the Convention does not for the most part cover so-called “cultural genocide,” the gradual but calculated destruction of a group through attacks against its social, cultural, or economic structures that do not entail immediate physical harm but end up undermining the terms of its reproduction as a group in the long term. This omission had less to do with any deep philosophical differences between Lemkin and the drafters of the Convention than with more immediate political calculations. Western states were eager to distinguish their own forms of eliminationist colonial violence from that deployed by the Third Reich—despite, or perhaps because, Lemkin had treated colonial violence against Native Americans as paradigmatic of the wrong that he was trying to capture.
This shortcoming has been aggravated by the subsequent interpretation of the Convention by courts and tribunals. The ICJ, in particular, has set the burden of proof for genocidal intent unnecessarily high. In the absence of explicit genocidal statements, intent may be inferred from the overall pattern of conduct of the respondent state, but only if this is “the only inference that could reasonably be drawn from the acts in question.” The “only reasonable inference” standard appears to be transposed from the realm of (international) criminal law, and does not have explicit grounding in either the Genocide Convention or the law of state responsibility. However, this extremely high standard echoes juridical and societal perceptions about the aberrant character of genocide. Genocide is imagined to be a highly exceptional crime, one that has taken place only a handful of times in modern history, and so, the often implicit argument goes, there should be a very strong presumption against establishing its occurrence. In addition, consciously or not, legal actors (at least those who are not genocide scholars) often treat the Holocaust as paradigmatic, and claims of genocide are measured against the particular modalities of the rationalised, industrialised, mass extermination of European Jews.
This exceptionalisation of genocide and its legal expression in the “only reasonable inference” standard displace political economic understandings of genocide in settler colonial settings. In contexts where settler economies do not rely on indigenous labour but require indigenous land for their spatial expansion and for the development of various extractive industries, be it mining or industrialised agriculture, genocidal conditions arise, as indigenous populations become “surplus populations” that pose constant challenges to settler societies’ demand for land. This does not mean, of course, that genocide occurs inevitably in all settler colonial contexts, or even in all contexts when indigenous labour is not systemically important. It does mean, however, that this specific set of political economic conditions—in which “surplus populations” are viewed as economically “useless” and as obstructions to expansion by dominant political institutions—generate genocidal incentives that may or may not come to fruition. Colonial violence that occurs against the backdrop of such conditions has the potential of becoming exterminationist, and it has frequently tilted in that direction. Indeed, the entirety of the American continent as well as Australia are testament to the unexceptional character of genocide in such settler colonial contexts.
This political-economic understanding of genocide can also help explain what is unfolding in Gaza. As Darryl Li has argued on this blog before, since the First Intifada, Israel has made a concerted effort to replace Palestinian labour with migrant labor in sectors such as construction and agriculture. This was a deliberate strategy to deprive Palestinians of the disruptive powers of labor and undermine the effectiveness of non-violent but militant resistance. Concerningly, though, this strategy has also created political economic conditions conducive to genocide, as Palestinians are no longer systemically useful for their labor. In addition, the huge foreign currency reserves that Israel has accumulated over the past 15 years give it a historically unprecedented degree of leeway (despite its overarching dependence on the US) to pursue increasingly violent, internationally unpopular policies without facing immediate economic deterioration. The current escalation of violence across Palestine needs to be read in light of these political economic realities that, in my mind, have enabled a shift from conditions of systematic oppression and discrimination to conditions of comprehensive expulsion and extermination.
The Political Economy of Genocide at the ICJ
Given the ICJ’s notorious reluctance when it comes to departing from its nominally non-binding precedent, and given the antagonistic relationship between the “only reasonably inference” standard and the structural analysis presented above, it is unlikely that the political economy of genocidal settler states will become part of the Court’s analysis. However, this does not mean that all avenues for such a reading have been shut down. South Africa’s lawyers, while being constrained by existing legal texts and precedent, have offered important insights into how a political economic approach to law can inform arguments that remain legible to a court.
As others have noted, the crux of South Africa’s argument is built around Art. II para (c) of the Genocide Convention, which involves “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Even though this provision still centres on physical destruction, it nevertheless enabled South Africa to advance two important arguments. First, South Africa’s submission was able to capture the totality of destruction carried out since the 7th of October. Instead of focusing on individual attacks and their immediate victims (as international humanitarian law does), Art. II para (c) allows for a comprehensive evaluation that captures the complex web of physical infrastructure, service provision, human relationships, natural environment, and tacit knowledge that make life possible at a very elementary level. It is, therefore, notable that the written submissions did not only focus on the deliberate starvation of Palestinians (even though this is, arguably, the most immediate danger), but cast a wider net that included destruction of homes, mass expulsion, deprivation of food through the blocking of aid and the destruction of food systems, deprivation of access to clean water, deprivation of access to adequate clothing and sanitation, destruction of medical facilities, and the killing of medical professionals. Importantly, the submission highlights the deliberate destruction of legal infrastructure, such as courts, as well as universities, archives, religious sites, public libraries, and of prominent community leaders as part of a broader pattern of physical destruction of the Palestinian people in Gaza. One of the main effects of the submission is to give legal expression to the complex structure and relationships of Gazan society. In contrast to other provisions of the Genocide Convention that focus on physical harm and death in a narrower way, examining a people’s “conditions of life” allows us to see them not as a one-dimensional victim of violence but as members of a rich, societal tapestry. Perhaps more accurately, this provision allows us to see Palestinians as victims of genocide precisely because it makes visible the complex realities of their society.
Second, by focusing on Art. II para. (c) of the Convention, South Africa was able to place the current escalation of violence within the broader historical and political context of occupation and blockade. Indeed, South Africa was required to do so, as Art. II para. (c) raises the question of “double intent“: South Africa needed to establish both genocidal intent and also that the conditions of life were “calculated” and “inflicted deliberately” in order to destroy the group. In the case of Gaza, these calculations can be shown to be very literal. Israel’s formal withdrawal from Gaza in 2005 was followed by a micro-managed blockade that involved, amongst other things, the calculation of caloric intake that would keep the population just above starvation levels without allowing for a comfortable life or for food sovereignty. Unlike ordinary belligerents, Israel has long-documented knowledge of Gaza’s systemic vulnerabilities, not least because it has created most of them. Therefore, broader history here is relevant both in terms of establishing ‘double intent’ and in terms of establishing the actus reus of genocide: due to Israel previous actions, Gaza’s population is particularly vulnerable, which means that it is easier to inflict upon it “conditions of life calculated to bring about its physical destruction.” This is the context in which we should also interpret the claim by UN Special Rapporteur on the Right to Food that no population has gone hungry so fast and so completely. In contrast, commentators who lamented accusations of genocide as “premature” in 2023 did not take into account (consciously or not) the acute vulnerabilities of a besieged population.
This history of micromanagement of life conditions within the Gaza strip also shows that Israel has the institutional knowledge, policy tools, military training and political will to inflict unliveable conditions in a calculated and deliberate way. In this context, statements by the minister of finance and the minister of energy and infrastructure become directly relevant in establishing the required “double intent.” The relationship between Gaza and Israel is not simply that of a war that started on the 7th of October 2023. It is rather that of an occupying power and the occupied population, and that of siege. Such relationships implicate a much broader range of governmental actors and state structures than war, rendering their statements apposite when establishing the required “double intent.” Therefore, arguments by Israeli legal scholars that many of the genocidal statements quoted by South Africa come from “marginal” figures and need to be discarded when establishing genocidal intent are unpersuasive insofar as they obscure the legal and material relationships between Israel and Gaza.
All of this is to say that, in this instance, history and political economy are not simply a lens that we may or may not choose to use depending on our methodological and political commitments. Rather, arguing through Art. II para. (c) of the Genocide Convention demands that the applicant maps extensively (if not exhaustively) these conditions and identifies which acts and omissions can disrupt the reproduction of a society on the most basic level. In turn, a proper identification of genocidal conditions of life and of the actors that can inflict them requires that we understand the specific context of Gaza and the cruel micromanaging of Palestinian life in the strip by Israel long before October 2023. The ICJ’s decision to exceptionalise genocide through the adoption of the “only reasonable inference” standard made it almost impossible to name the political economy of settler colonialism as a matrix of genocide—as the context that makes genocide a “rational” policy option as opposed to the aberration that the Court assumes to be. However, if South Africa follows its own arguments during the provisional measures stage to their logical conclusion, we may well see political economic, structural analysis coming back in through the front door after it was pushed out through the window.
