Understanding South Africa’s ICJ case against Israel
South Africa is asking the International Court of Justice to declare that in its war against Gaza, Israel has breached its obligations under the Genocide Convention.
ICJ Delivers verdict in case of Equatorial Guinea v. France. The Hague, Netherlands, 2016. UN Photo/ICJ-CIJ via Flickr CC BY-NC-ND 2.0 Deed.
On December 28, 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ). In a tightly argued and well-evidenced application, South Africa argues that since October 7, 2023, Israel has been committing genocide—and has failed to prevent genocide—against Palestinians in Gaza in violation of their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”).
The application, prepared by an excellent legal team, makes for harrowing reading, even for those relatively well-informed on the issue. South Africa places Israel’s actions since October 7 in the context of a history of “apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination” … “during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.” Notably, South Africa points out that Israel has been carrying out extreme violence against Palestinians even before Hamas’s actions on October 7 (which it unequivocally condemns but notes cannot justify genocide). “Between September 29, 2000 and October 7, 2023, approximately 7,569 Palestinians, including 1,699 children,” were killed by Israel during military operations, “with tens of thousands of others injured.” During that time, Israel killed a further 214 Palestinians participating in peaceful protests and injured 36,100 Palestinians, including journalists, medics and nearly 8,800 children, who an independent commission of inquiry instituted by the United Nations Human Rights Council concluded were intentionally targeted by Israeli soldiers.
Having established this horrifying context, South Africa is particularly concerned in this application with Israel’s failure to prevent genocide, including by failing to prosecute the incitement to genocide, and Israel’s engagement in genocidal acts against Palestinians.
Under the Genocide Convention, genocide requires both action and intent. Genocidal acts are: (a) killing members of a national, ethnical, racial or religious group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; or (e) forcibly transferring children of the group to another group. Any one of these acts committed with the intent to destroy the group, in whole or in part, is genocide and is prohibited under international law. South Africa’s application alleges evidence of Israel’s genocidal actions in the first four of these categories.
First South Africa argues that Israel is killing Palestinians in Gaza in large numbers, with more than 21,110 Palestinians reported killed since October 7, and an estimated 7,780 people missing presumed dead. This killing has taken the form of indiscriminate and heavy bombing, summary executions, and the wiping out of entire families in their homes, in shelters, in hospitals, schools, churches, mosques, and even when fleeing along routes demarcated as safe by Israel.
Second, South Africa argues that Israel is causing serious bodily and mental harm to Palestinians in Gaza, with an estimated 55,243 Palestinians already wounded by Israel since October 7 , many with serious burns, amputations and suffering the effects of banned chemical weapons. Constant bombing and the complete lack of safe places in Gaza has led to severe psychological distress and mental trauma, exacerbating the mental anguish of an already vulnerable group. This is worsened by Israel’s relentless dehumanization, and cruel, inhuman, and degrading treatment of Palestinians in Gaza:
Large numbers of Palestinian civilians, including children, have reportedly been arrested, blindfolded, forced to undress and remain outside in the cold weather, before being forced on to trucks and taken to unknown locations. Medics and first responders, in particular, have been repeatedly detained by Israeli forces, with many being detained incommunicado at unknown locations. Videos published by Israeli media on Christmas Day appeared to show hundreds of Palestinians, rounded up inside Al Yarmouk football stadium in Gaza City, ‘including children, older people and persons with disabilities, being forced to strip to their underwear in degrading conditions’. Many Palestinian detainees who have been released report having been subjected to torture and ill-treatment, including the deprivation of food, water, shelter and access to toilets.
Third, Israel is inflicting on Palestinians conditions of life intended to bring about their destruction as a group. South Africa argues that this includes mass displacement (of “over 1.9 million Palestinians out of Gaza’s population of 2.3 million people— 85 per cent of the population”), expulsions from and mass destruction of homes and residential areas, and the imposition of what Israel calls a “complete siege” on Gaza, leading to deprivation of access to adequate food, water, medical care, shelter, clothes, hygiene and sanitation.
Fourth, Israel is destroying the life of the Palestinian people in Gaza. Israel has destroyed homes, hospitals, schools, university campuses, museums, historical archives and ancient cultural sites, approximately 318 Christian and Muslim religious sites, courts, parliamentary buildings, libraries, agricultural land, bakeries, and electricity, water and sewage infrastructure. In doing so, Israel has targeted “life-sustaining infrastructure,” the “infrastructure and foundations of Palestinian life”. Besides infrastructure, Israel has
sought to destroy the very Palestinian people who form and create that heritage: Gaza’s celebrated journalists, its teachers, intellectuals and public figures, its doctors and nurses, its film-makers, writers and singers, the directors and deans of its universities, the heads of its hospitals, its eminent scientists, linguists, playwrights, novelists, artists and musicians.
Finally, by killing and injuring a disproportionate number of women and children, including pregnant women, and denying them access to healthcare, South Africa argues that Israel is imposing measures intended to prevent Palestinian births.
Every one of South Africa’s claims is supported by reference to the investigations, reports and statements of reputable sources. These include the International Committee of the Red Cross, World Health Organisation, Doctors Without Borders, Palestinian journalists on the ground, and numerous independent United Nations’ human rights experts.
On genocidal intent (usually the most difficult requirement to prove), South Africa quotes what it calls “significant and overt” statements of genocidal intent. Israeli Prime Minister Benjamin Netanyahu has referred to Palestinians as “bloodthirsty monsters,” “children of darkness,” “extreme evil,” and “barbarians” who pose a threat to “civilization.” He has referenced biblical passages in communication to the Israeli military that order the killing of “men and women, infants and sucklings.” Isaac Herzog, the President of Israel, has claimed that “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved… and we will fight until we break their backbone.” The Israeli Minister of Defence, Yoav Gallant, has publicly stated that Israel is “fighting human animals” and “imposing a complete siege on Gaza.” He has directed troops to release “all the restraints,” and to “eliminate everything.” Besides these statements, South Africa quotes public statements of several Israeli Ministers, the Deputy Speaker of the Knesset (Israeli parliament), parliamentarians, members of the Israeli army, and civil society.
South Africa points out that its conclusion on Israel’s genocidal intent is echoed by a number of United Nations experts, committees, special rapporteurs, members of working groups, and the former Director of the New York Office of the High Commissioner of Human Rights.
No answering papers by Israel are publicly available at this time.
What does South Africa want?
Should the ICJ be convinced by South Africa’s arguments, South Africa asks it to declare that Israel has breached and continues to breach its obligations under the Genocide Convention. South Africa asks that Israel be ordered to cease any acts in breach of those obligations; to punish all persons committing, inciting, attempting or complicit in genocide; to collect and conserve evidence of genocidal acts and allow the collection and conservation of this evidence by others; to provide reparations to Palestinians (including safe and dignified return of Palestinians to their homes, reconstruction of what Israel has destroyed, and protection of Palestinians from further persecution); and to offer guarantees that it will not repeat its violations of the Genocide Convention. South Africa also asks the ICJ to declare that both South Africa and Israel have a duty to take all reasonable measures within their power to prevent genocide of the Palestinian people.
The value of the relief directed at Israel’s actions is obvious. But there is also great value in the declaration South Africa seeks regarding its own obligations. The Genocide Convention is clear that states have an obligation to prevent genocide. A clarification by the ICJ that this means states should take action to prevent genocide from being carried out by other states would have legal implications for Israel’s allies, notably the United States, Canada, Germany, and the United Kingdom, whose material and rhetorical support has enabled Israel’s actions. Perhaps recognizing this, in the days following South Africa’s application, officials in some of these states rushed to release statements rejecting at least some of Israel’s actions.
Pending a full hearing of this matter, South Africa asks the ICJ to indicate provisional measures to urgently protect the rights of Palestinians while lengthy court processes unfold. Provisional measures are not unheard of. Recently, the ICJ ordered certain provisional measures in disputes between Ukraine and Russia and The Gambia and Myanmar, also concerning alleged violations of the Genocide Convention. In this matter, South Africa has asked the ICJ to protect Palestinians by calling upon Israel to immediately halt all military attacks that may violate the Genocide Convention pending the holding of a hearing; to stop killing and causing serious harm to Palestinians; to stop the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group; to prevent and punish incitement to genocide; and to withdraw policies such as restrictions on aid and the ordering of evacuations.
Why does South Africa get to appoint a Judge?
Both Israel and South Africa have been allowed to appoint ad hoc judges to the bench that will consider this matter. The governing statute of the ICJ provides that a party to a case before the ICJ with no judge of its nationality on the bench may choose a person to sit as a judge in that specific case under specific conditions. These ad hoc judges are likely to be more familiar with the context and views of the state that has appointed them, which can be useful to the ICJ when considering complex matters.
South Africa has appointed former Deputy Chief Justice Dikgang Moseneke as its ad hoc judge. Justice Moseneke is a celebrated jurist, who was imprisoned as a teenager for opposing apartheid and whose legacy as a judge in democratic South Africa displayed a similar commitment to equality and human dignity for all.
Israel has appointed former Chief Justice Aharon Barak as its ad hoc judge.
What happens next?
The ICJ has scheduled a hearing for January 11 and 12 2024. This hearing will be concerned exclusively with the provisional measures South Africa has requested. That means that the outcome of this hearing will not be a definitive finding on whether or not Israel has violated the Genocide Convention. Such a finding will only follow sometime in the future.
Given the ICJ’s decision to grant provisional measures in Ukraine v Russia and The Gambia v Myanmar, it seems likely that it will indicate provisional measures in this matter. But whether the provisional measures will be complied with is less clear. International courts differ from domestic ones in that they do not have a dedicated law enforcement mechanism. There is no international police force, no prison for states. Any order of the ICJ will have to be enforced by the very same international community that has allowed Israel to continue assaulting Gaza with impunity.
What the ICJ’s final decision will be is also unclear. This is especially so because Israel is yet to make a reasoned legal response to South Africa’s claims, instead claiming that South Africa is engaging in antisemitic “blood-libel” and is, by lodging this application, complicit in Hamas’s October 7 attack. However, though the test for responsibility for genocide is a strict one, the ICJ has not historically shied away from finding states responsible for failing in their obligations under the Genocide Convention. It has also taken a dim view of Israel’s actions in the past, issuing an advisory opinion in 2004 that concluded that Israel’s construction of a massive wall into occupied Palestinian territory in the West Bank was violative of international law and Palestinians’ rights, and therefore unlawful. But the ICJ’s final decision, like any decision it makes on provisional measures, will be subject to enforcement by the international community.
Regardless of the outcome, South Africa’s application creates a public record of Israel’s actions and forces Israel to publicly account for its conduct in a legal forum, relying on evidence rather than bad-faith hysterics. This can only help the Palestinian cause.
