OPINIONS

Mon 22 Jan 2024 8:18 am - Jerusalem Time

South Africa v. Israel at the International Court of Justice

South Africa v. Israel 

On Jan. 11, South Africa presented its case against Israel before the International Court of Justice (ICJ), accusing the regime of perpetrating genocide against Palestinians in the Gaza Strip. State parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention” or “the Convention”) are not only required to refrain from committing genocide but also prevent it wherever it occurs. Both Israel and South Africa are state parties to the Convention. 

In an effort to fulfill its erga omnes, Latin for “towards all,” obligations to prevent genocide, South Africa filed its application with the ICJ, alleging that Israel is breaching its obligations under the Genocide Convention by engaging in genocidal acts against Palestinians in the Gaza Strip since Oct. 7, 2023. 

What is the International Court of Justice (ICJ)? 

The ICJ, also known as “the World Court,” is the judicial organ of the United Nations (UN). Established by the Charter of the UN in 1945, the Court is located in The Hague. It serves to settle legal disputes and address questions of international law among states that are UN members. 

Disputes brought before the ICJ are decided by a panel of 15 judges, elected to serve for nine-year office terms by the UN Security Council (UNSC) and UN General Assembly (UNGA). The panel of judges must not include more than one national of the same state. A judge, upon election to the ICJ, is not a delegate of their government or state; instead, they are intended to be an independent actor exercising their powers impartially. 

If a state party involved in an ICJ dispute does not have a judge of its nationality on the bench, that party has a right to appoint an ad hoc judge of its nationality to the panel. None of the 15 current judges are nationals of South Africa or Israel. Consequently, both South Africa and Israel opted to exercise their right to appoint an ad hoc judge from their respective states to the panel. Former Deputy Chief Justice Dikgang Moseneke and former President of the Supreme Court Aharon Barak were appointed by South Africa and Israel, respectively. 

What is South Africa asking the Court to do? 

South Africa is requesting the ICJ to issue ‘provisional measures' to preserve the rights of the parties “from imminent and irreparable loss.” Specifically, this pertains to protecting the rights of Palestinians in Gaza from acts of genocide, the conspiracy to commit genocide, direct and public incitement to commit genocide, attempted genocide, and complicity in genocide. The term ‘provisional measures' serves as protective measures, akin to a ‘preliminary injunction' in domestic legal systems. It effectively orders a party to halt its allegedly harmful activity until the court reaches a comprehensive decision on the merits of the issue. 

Thus, South Africa is urging the Court to assess whether, at a minimum, some of the acts South Africa is accusing Israel of, and the rights of Palestinians that South Africa seeks to protect, are “at least plausible” and capable of falling within the provisions of the Genocide Convention. If such plausibility is determined, South Africa is requesting the Court to order Israel to suspend its military operations against Gaza immediately, undertake all reasonable measures within its capacity to prevent genocide, refrain from the acts South Africa accuses Israel of committing against Palestinians in Gaza in violation of the Genocide Convention, and preserve evidence related to the allegations. South Africa is requesting the ICJ to implement these measures until the Court is able to fully determine whether Israel is, in fact, violating provisions of the Genocide Convention by committing genocide against Palestinians in the Gaza Strip.


South Africa's case: Israel is committing genocide against Palestinians in Gaza 

 A. Acts of Genocide

In its 84-page application and oral arguments presented to the Court, South Africa alleges that Israel's actions against Palestinians in Gaza “show a systematic pattern of conduct” that “fall within the definition of genocide” under Article 2 of the Genocide Convention. These acts are briefly summarized as follows: 

  1. Killing Palestinians in Gaza

At the time of the application on Dec. 29, 2023, more than 21,110 Palestinians were killed since Israel initiated its military assault on Gaza, with 70 percent of those killed believed to be women and children (at the time of writing this publication, the death toll stands at more than 24,000 Palestinians killed). This equates to killing approximately one in every 100 people in Gaza. An additional 7,000 Palestinians are still missing, presumed dead under the rubble. South Africa highlighted reports of Israeli soldiers carrying out summary executions, including the execution of multiple members of the same family. Hundreds of multigenerational families have been entirely wiped out, with no survivors, resulting in hundreds of families being removed from the civil records. The mortality rate in Palestinian families is so severe that doctors were forced to coin a new acronym: ‘WCNSF,' meaning ‘wounded child, no surviving family.' 

Palestinian children are especially affected, with over 7,729 Palestinian children killed in Gaza at the time of the submission (currently, the death toll exceeds 10,000 children). Doctors and other health workers, journalists, teachers, academics, UN employees, and other professionals have been killed at “wholly unprecedented rates.” More than one journalist is killed per day, amounting to Israel killing 73 percent of the total number of journalists killed globally in 2023. 

  2. Causing Serious Bodily and Mental Harm to Palestinians in Gaza 

Over 55,243 Palestinians have been wounded in Israel's attacks on Gaza since Oct. 7, 2023, and an estimated 1,000 children have lost one or both legs. In the north of Gaza, there are no functioning hospitals capable of offering surgery or medical treatment, meaning injured individuals are left “waiting to die” from their wounds and resultant infections.

The severe level of bombardment across all areas of the Gaza Strip, leaving no place safe, is inflicting severe mental trauma on the Palestinian population. The ongoing 15-week onslaught will lead to a further increase in trauma, particularly among children who have lost at least one parent and those who are the sole surviving members of their families.

South Africa also highlighted Israel's dehumanizing, cruel, inhuman, and degrading treatment of Palestinians in Gaza. This includes the rounding up of large numbers of civilians, including children, arresting and blindfolding them, forcing them to undress and remain outside in the cold weather before being forced onto trucks and taken to unknown locations. Numerous released Palestinian detainees reported instances of torture and ill-treatment, including deprivation of food, water, shelter, and access to toilets.

   3. Mass Expulsion From Homes and Displacement of Palestinians in Gaza 

Over 1.9 million Palestinians, constituting approximately 85 percent of Gaza's population of 2.3 million people, have been forcibly displaced from their homes. Israel has destroyed an estimated 355,000 Palestinian homes, amounting to 60 percent of the homes in Gaza. Additionally, Israel is regularly issuing ‘evacuation orders,' dropping leaflets over civilians demanding that they leave their homes in Gaza for other areas. 

The initial evacuation order demanded that 1.1 million Palestinians in the north of Gaza move to the south within a 24-hour time frame. Such an order is inconsistent with international humanitarian law and, according to the World Health Organization (WHO), “could be tantamount to a death sentence” for hospital patients. There were several reports of Israel shelling designated evacuation routes, killing, injuring, unlawfully detaining, and arresting civilians following evacuation orders. Furthermore, Israel continues to bombard the “safe areas” in the south, where it directed civilians to flee. 

   4. Deprivation of Access to Adequate Food and Water to Palestinians in Gaza

On Oct. 9, 2023, Israel declared a “complete siege” on Gaza, announcing that no electricity, food, water, or fuel would be allowed to enter the already besieged enclave. Israel has imposed conditions of starvation on most of the Palestinian population, with 93 percent of the population in Gaza facing crisis levels of hunger and high levels of malnutrition. Israel's actions are pushing the Palestinian population to the brink of famine. UNRWA's Commissioner-General, cited by South Africa, describes “desperate, hungry and terrified” people, who are now “stopping aid trucks, taking the food, and eating it right away.” Four out of five of the hungriest people anywhere in the world are in Gaza. 

Experts are now predicting that more Palestinians in Gaza may die from starvation and disease than from airstrikes.

 

5. Deprivation of Access to Adequate Shelter, Clothes, Hygiene and Sanitation to Palestinians in Gaza

The majority of displaced Palestinians are seeking shelter in UNRWA facilities. Despite Israel having the coordinates of all UN facilities, Israel has killed hundreds of men, women, and children seeking shelter in these locations. UNRWA's shelters now have an average of 486 people using a single toilet, and only one shower for every 4,500 people. Maintaining hygiene is challenging, especially for menstruating girls and women, and an average of 25 women a day are forced to give birth in unsanitary, overcrowded spaces. 

Acute shortages of warm clothes, bedding, and wood for cooking — forcing many to burn plastic — is increasing the risk of respiratory disease. These conditions have created the expectation that a quarter of Gaza's population could die from disease within a year.

 6. Deprivation of Adequate Medical Assistance to Palestinians in Gaza

Israel's military assault is an attack on Gaza's health care system, which is deemed “indispensable to the life and survival of the Palestinians in Gaza.” The health system in Gaza has collapsed, leading to instances where both children and adults undergo limb amputations and suffer severe burns without the availability of anesthesia or sterilized surgical tools.

The Israeli army has attacked and besieged hospitals and health care centers, depriving them of electricity, fuel, medical supplies, food, and water. Furthermore, they have compelled their evacuations and closure to destroy them. 

Blinne Ní Ghrálaigh KC, a member of South Africa's legal team, presented a heart-wrenching piece of evidence during oral arguments: two pictures side-by-side of a whiteboard. On the left, it read, “We did what we could. Remember us.” The words were written by Dr. Mahmoud Abu Nujaila, a doctor working at Al-Awda Hospital. On the right, the same whiteboard, with the writing still visible, is smashed on the ground, destroyed in the same Israeli airstrike on Al-Awda Hospital that killed Dr. Mahmoud Abu Nujaila.

  7. Destruction of Palestinian Life in Gaza

The extent of destruction inflicted on homes, religious sites, and critical infrastructure “threatens to make the continuation of Palestinian life in Gaza impossible.” Israel has flattened entire neighborhoods, such as Shuja'iyya, once home to approximately 110,000 Palestinians. Additionally, Israel has also destroyed the ancient port of Gaza, the Palace of Justice, the Legislative Council complex, the Central Archive building, the main public library, every single one of Gaza's four universities, and killed a number of Gaza's leading academics, destroying the sources of Palestinian education, culture, and history. 

 8. Imposing measures intended to prevent Palestinian births

Two mothers are estimated to be killed every hour in Gaza. Pregnant women are forced to go through cesarean sections without anesthesia. Due to the lack of access to critical medical supplies, including blood, doctors are forced to perform ordinarily unnecessary hysterectomies on young women to save their lives post-childbirth, leaving them unable to have more children. Premature births have increased between 25-30 percent due to the stress and trauma experienced by mothers forced to walk long distances in search of safety, escaping bombs, and cramped into unsafe and unsanitary conditions in shelters. A lack of essential equipment and medical support means that premature and underweight babies have little to no chance of survival.

  B. Expressions of Genocidal Intent 

Genocide is more challenging to establish than other war crimes and crimes against humanity, as it requires proving a special intent or dolus specialis on the part of the perpetrator to bring about the physical destruction of the group. Intent is the most difficult element to determine in a genocide case. 

However, in Israel's case, there is an abundance of evidence of genocidal intent. South Africa presented numerous examples of genocidal statements made by Israeli political and military leadership, repeated by soldiers, to the Court. These examples highlight dehumanization, collective punishment, and violating obligations to distinguish between militants and civilians. Here are just a few: 

  •   “[This is] a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.” — Prime Minister of Israel Benjamin Netanyahu, Oct. 16, 2023.
  •   “It's an entire nation out there that is responsible. It's not true this rhetoric about civilians not aware [or] not involved ……and we will fight until we break their backbone.” — President of Israel Isaac Herzog, Oct. 12, 2023. 
  •   “Human animals are dealt with accordingly. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.” — Head of the Coordinator of Government Activities in the Territories (COGAT) Major General Ghassan Alian, Oct. 9, 2023.
  •   “May their village burn, may Gaza be erased,” and “we know our motto: there are no uninvolved civilians” and “to wipe off the seed of Amalek.” — Israeli army soldiers filmed chanting, singing, and dancing on Dec. 5, 2023, and Dec. 7, 2023. 

Israel's Response

 A. Right to self-defense 

Israel argued that they are exercising their right to self-defense, asserting that Hamas' attack on Israel prompted the war on Gaza on Oct. 7. In fact, Tal Becker's opening statement for the Israeli legal team stated, “...if there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,” claiming that Hamas is carrying out a genocide against Israel. However, Hamas is not a party to the proceedings.

Furthermore, as an occupying power, Israel does not hold the right to self-defense against those under its occupation. Nonetheless, even if Israel could successfully argue that it holds the right to self-defense, the argument itself is irrelevant in a genocide case, as there is no legal defense to justify genocide.

 B. Genocidal Actions

In response to South Africa's thorough documentation of indiscriminate killing of civilians amounting to over 24,000 civilians killed to date, targeting of hospitals and other recognized safe zones under international humanitarian law, and forcibly displacing over 1.9 million civilians, Israel argued that Hamas is using civilians as human shields and Israeli troops are trying to “minimize” civilian harm. 

 C. Genocidal Intent

Israel claims that the key component of intent to commit genocide is “totally lacking.” It claims that South Africa “misunderstands the nature and provenance” of examples they provided of genocidal statements by Israeli officials. Israel's legal team presented Prime Minister Netanyahu's statement, made after South Africa filed their case with the Court, that “Israel is fighting Hamas terrorists, not the civilian population.” 

 D. Lack of Jurisdiction 

Israel disputes the ICJ's jurisdiction over the case and asks the Court to remove the case from its docket, claiming that there was no real dispute between South Africa and Israel because, according to Israel, South Africa did not attempt to resolve their “dispute” prior to bringing it to the Court. 

What do other states think? 

The following states have expressed that they welcome South Africa's application to the ICJ regarding Israel's violations of the Genocide Convention:

  • South Africa
  • Palestine
  • Namibia 
  • Organization of Islamic Countries (57-member bloc, including Saudi Arabia, Morocco, Pakistan, and Iran) 
  • Malaysia 
  • Turkey 
  • Slovenia 
  • Bangladesh 
  • Pakistan
  • Colombia
  • Brazil
  • Jordan 
  • Maldives
  • Bolivia 
  • Indonesia

The following States have expressed opposition to South Africa's application: 

  • Israel
  • USA 
  • Germany

 

Expected next steps

The Court is expected to issue its decision in the coming days, likely before the end of the month. Given the Court's precedent and the imminent risk to Palestinians of suffering irreparable prejudice, it is likely that the Court will agree to issue provisional measures. However, it remains to be seen which, if any or all, of the South African provisional measures requested will be granted. Only after a decision on provisional measures will the Court then consider the case on the merits — whether Israel is, in fact, committing genocide — a decision which could take years.

After such a compelling case presented by South Africa, the fate of international law hangs in the balance. The ICJ has the opportunity to act to halt Israel's military activity against Gaza and prevent an already catastrophic situation from worsening. Whether or not Israel heeds such a decision — as Netanyahu stated, The Hague “will not stop us” — is not necessarily relevant. Rather, if provisional measures are issued, other states will be more likely to act within their powers and obligations to prevent genocide by sanctioning Israel, preventing arms sales to Israel, and prosecuting individuals who are dual nationals and potentially guilty of war crimes by serving in a military carrying out an active genocide against Palestinians in Gaza.  

International law and its institutions are seen as lasting relics of colonialism by many states in the global south. After 106 days of genocide, the ICJ's decision will affect not only the legitimacy of the Court, but international law as a whole. 

Source: Institute of Palestine Studies

 

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South Africa v. Israel at the International Court of Justice

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