On 29 December 2023, the Republic of South Africa initiated a case against the State of Israel at the International Court of Justice (ICJ). It claimed that Israel has violated its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide with regards to its military operations in Gaza. South Africa has urgently requested “the indication of provisional measures” — similar to an interim order — to protect Palestinian lives in Gaza.
South Africa demands Israel:
- Immediately cease military operations in and against Gaza.
- Ensure any military, irregular armed units, organisations and persons directed, supported, controlled or influenced by Israel abides by point (1).
- Both parties to the case (inc. South Africa) take all reasonable measures in their power to prevent genocide against the Palestinian people.
- Desist in the commission of any and all acts per Article 2 of the Genocide Convention including killing, serious bodily or mental harm, calculated conditions of life that bring about a group’s complete or partial physical destruction and the prevention of births.
- Refrain from forced expulsion and displacement of Palestinians, deprivation of access to adequate food and water, humanitarian assistance, medical aid, and the destruction of Palestinian livelihood in Gaza.
- Ensure the military or other armed units do not engage “in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide.”
- Prevent the destruction of evidence related to claims of genocide or deny fact-finding missions and bodies designed to preserve such evidence.
- Submit relevant reports to the court until the final decision.
- Refrain from aggravation or extension of the dispute at court.
On January 11, 2024, South Africa presented its oral argument at the Hague. The following day, Israel presented its case.
SOUTH AFRICA
Overview of Oral Argument
Presented by Ronald Lamola, Minister of Justice and Correctional Services of the Republic of South Africa
South Africa stated in its first sentence that the “genocidal acts and omissions” are part of an ongoing Nakba against Palestinians by a colonising Israel since 1948. Ronald Lamola noted that the apartheid regime, occupation and siege of Gaza has been met with impunity and “emboldened” Israel to continue committing human rights violations. He also emphasised that no armed attack or atrocity crime justifies Israel’s response, which South Africa believes, has breached the Genocide Convention.
- Risk of genocidal acts and the perpetual vulnerability to acts of genocide
Presented by Adila Hassim, Senior Counsel
Adila Hassim argued that Israel has violated Article 2 of the Convention as its actions are part of a “systematic pattern of conduct” that fall within the definition of genocide.
Article 2 (a): killing Palestinians in Gaza
South Africa referred to Israel’s use of warfare, with a focus on the intensified bombing campaigns, including in designated safe zones. Hassim also alleged that Israel’s conduct was done with the “full knowledge of how many civilian lives each bomb will take”.
Article 2 (b): causing serious mental and bodily harm to Palestinians in Gaza
The statistic of those wounded was estimated as high as 60 000, with the majority being women and children. The arrest, blindfolding, stripping and transfer of civilians to unidentified locations was also deemed a method of mental and physical suffering.
Article 2(c): deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
Hassim submitted that the “humanitarian” warnings, orders for evacuation and forced displacement of Palestinians are considered genocidal, as it intended to uproot Palestinians from their lives in Gaza, or remain and face death. Furthermore, civilians are more likely to die from hunger, dehydration, starvation and disease than airstrikes, which is exacerbated by the denied entry of “sufficient aid” and a rapidly collapsing healthcare system.
Article 2 (d): reproductive violence
South Africa asserted that Israel is preventing the birth of children as it “is blocking the delivery of life-saving aid” including medical kits for the delivery of babies. Additionally, there is no adequate medical care to respond to the increasing complications faced by pregnant women.
Hassim and her colleagues consistently referred to the Gambia v. Myanmar case as precedent, saying that it is only necessary to establish that some of these allegations fall within “the provisions of the Convention”.
- Israel’s alleged genocidal intent
Presented by Mr. Tembeka Ngcukaitobi, Senior Counsel
Tembeka Ngcukaitobi focused on explaining Israel’s genocidal intent, and stated that while some acts may amount to atrocities other than genocide, such as war crimes or crimes against humanity, this reasoning does not “exclude the finding of plausible acts of genocide.”
He defined genocidal intent as “to destroy in whole or in part” and that it is “systematic in its character and form.” Additionally, there is a clear pattern of conduct by the continuation of military operations despite Israel’s awareness of the extent of destruction and humanitarian crisis in Gaza.
South Africa spoke at length to the correlation between statements with explicit genocidal intent made by Israeli officials, and what is later repeated by soldiers on the ground. They read out politician’s statements, and displayed snuff videos of soldiers putting such words into practice. Specific focus was placed on Israeli Prime Minister, Benjamin Netanyahu’s use of dehumanising discourse and hate speech. On 28 October 2023, he addressed Israeli soldiers saying, “remember what Amalek has done to you”. On 7 December 2023, Israeli soldiers were recorded dancing and singing the words, “We know our motto: there are no uninvolved…wipe off the seed of Amalek.”
Ngcukaitobi concluded by stating that the failure to condemn, prevent, or punish these incitements is also a violation of the Genocide Convention.
- Prima Facie jurisdiction
Presented by Professor John Dugard, Senior Counsel
John Dugard delved into the legalities surrounding jurisdiction of the court and explained that the obligation to prevent genocide is erga omnes. This means that the obligation is owed to the international community and is not just a bilateral affair between two states. Thus, any state acting on behalf of the international community can utilise the court’s jurisdiction to prevent genocide.
Dugard also chronicled the steps taken to put forth this application. South Africa observed Israel’s behaviour, publicly voiced concerns about it constituting a genocide and attempted to communicate with Israel about the allegations, only to receive little responsiveness. South Africa then formally accused Israel in its application to the ICJ whilst Israel continued its military operations. This established a serious dispute between South Africa and Israel.
- Various rights currently under threat
Presented by Professor Max du Plessis, Senior Counsel
Max du Plessis clarified that the prohibition of genocide is jus cogens — a fundamental, international norm that is absolute in nature. As such, there are no circumstances where there is an exception.
Instead, all states share a common interest under the Genocide Convention. Therefore, Israel owes its obligations to all states party to the convention, not just to the Palestinian people but to South Africa, the non-affected state and applicant.
He affirmed that Israel’s intent to destroy Hamas and other motives does not negate a genocidal intent against some or the entire Palestinian people.
South Africa also maintained that the court’s decision regarding the request for provisional measures and protection of Palestinian rights can be “grounded in a possible interpretation of the [Genocide] Convention”.
- Argument of urgency and potential irreparable harm
Presented by Ms. Blinne Ní Ghrálaigh, King’s Counsel
To confirm the urgency of this case, South Africa insisted that Palestinians will continue to experience “irreparable prejudice” as the Court deliberates on the question of provisional measures and the merits of the case.
It also spoke to the international precedents in which provisional measures were invoked and found to be justified in relation to the Genocide Convention such as Bosnia and Herzegovina v. Serbia and Montenegro. Beyond the legal implications, South Africa also espoused the principle of morality, referring to the failure of the international community to prevent the Rwandan, Bosnian and Rohingya genocides.
- Provisional measures
Presented by Professor Vaughan Lowe, King’s Counsel
Vaughan Lowe argued that Israel cannot claim self-defence as it occupies Gaza, and therefore it is attacking its own controlled territory. He also addressed the question of Hamas, stating that South Africa does not seek any Court order against Hamas because it is not a state, and therefore, not a party to the Convention or the proceedings.
He finalised South Africa’s oral argument by reiterating that there under no circumstances can any attack or provocation warrant the response of genocide. In summation, they are requesting an order to prevent states “from killing individuals in a manner alleged to violate international law”.
ISRAEL
- Opening Statement and Nature of Conflict
Presented by Mr. Tal Becker, Ministry of Foreign Affairs of the State of Israel
The Israeli oral argument began by arguing Israel’s history and the Jewish people’s experience of genocide meant the nation’s “highest moral obligation” was never again to allow a genocide to take place.
Counsel Tal Becker framed the conflict as one Israel “did not start and did not want.” He argued that South Africa’s submission “seemed to erase Jewish history,” and presented a false narrative of the war’s origins and Israel’s conduct.
Key to the initial argumentation was the contention that even if the conduct against Palestinian civilians “raised ‘very serious issues of international law’ and involves ‘enormous suffering’ and ‘continuing loss of life,’” the Court has decided in previous cases those actions do not necessarily fall under the Genocide Convention.
Becker then detailed the events of October 7, arguing that while they don’t “release Israel of its obligations to uphold the law,” it’s “impossible to understand the armed conflict in Gaza, without appreciating the nature of the threat that Israel is facing.”
Becker’s reference to testimony from multiple victims and survivors formed the basis for the Israeli claim that the response to October 7 was defensive and proportionate. He also argued that South Africa obscured the true nature of October 7 in their oral arguments.
October 7, it was argued, was evidence of Hamas’s genocidal intent towards the Jewish people. Becker, quoting the groups manifesto and leaders argued that “if there have been acts that may be characterised as genocidal, then they have been perpetrated against Israel.” The obligation of Israel towards its citizens and the hostages who remain in captivity was framed as paramount.
The Court siding with South Africa would be the equivalent, he argued, of allowing Hamas who “has violated every past ceasefire and used it to rearm and plan new atrocities,” to continue its violence against the Israeli people.
Turning to the loss of civilian life in Gaza, Becker argued the takeover by Hamas in 2007 was a central cause of the awful conditions civilians now face. He pointed to the billions spent on weapons, military infrastructure, and terrorist integration by Hamas as evidence for their role in the death toll of Palestinian civilians. Becker summarised, “The appalling suffering of civilians — both Israeli and Palestinian — is first and foremost the result of this despicable strategy.”
Becker used the same line of argument to respond to the massive civilian casualties pointed to by South Africa. Many of the 23,000, according to Israel, are either militants, killed by Hamas’s booby trapping of buildings, or “civilians taking direct part in hostilities.”
The first core part of the Israeli legal strategy is to highlight that Gaza is still an active war zone between “a state and a lawless terrorist organization,” which makes the label of genocide inappropriate. Israel is compelled to operate in this “nightmarish environment created by Hamas.”
- Prima Facie Jurisdiction and Genocidal Intent
Presented by Professor Malcolm Shaw, Kings Counsel
Beyond their arguments about the nature of the war, Israel’s oral arguments also argued the ICJ has no prima facie jurisdiction to hear this case under the Genocide Convention.
Professor Malcolm Shaw, representing Israel, first contended that no “positive opposition” existed between South Africa and Israel concerning a genocide occurring. Drawing on precedent which establishes that parties must hold clear, opposing, and directly articulated views for the issue to become a dispute, Shaw argued that the public statements made by South Africa so far are insufficient.
Further, Shaw argued the rapid timeline of proceedings brought against Israel “did not give [them] a reasonable opportunity to engage with it on the matters under consideration before filing.” In Israel’s view, no dispute between states merits an Article 9 application.
Drawing on past cases, Shaw argued that establishing intent under Article 9 was, while not a requirement, a notable factor in the Court’s decision on jurisdiction. South Africa’s reliance “on certain comments made by some Israeli politicians,” is not enough in Shaw’s view to establish that intent.
To counter the statements used by South Africa, Shaw argued the Court had to look at the totality of War Cabinet and Ministerial decisions. Shaw pointed to directives by the Prime Minister to avoid a humanitarian disaster and orders to establish field hospitals in Gaza. The same body of evidence was used to argue that the IDF has specific policies and directives in place to minimise and protect civilian life.
Further pointing to the leaflets dropped by the IDF which instructed the civilian population to flee south, Shaw summarised by saying that any examination of “official and binding policy decisions” of Israel does not meet genocidal intent. In contrast, “comments to which South Africa refers are clearly rhetorical.”
Concluding that “without intent, there can be no genocide in law,” Shaw argued that the court could not grant any aspect of the South African application.
