On Dec. 29, 2023, The Republic of South Africa filed proceedings against Israel before the International Court of Justice (ICJ), regarding Israel’s alleged violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). According to South Africa’s application instituting proceedings, an 84-page document laying out South Africa’s case and charges against Israel, “against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination and the ongoing denial of the right of the Palestinian people to self-determination — Israel, since Oct. 7, 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide. More gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.”
The Genocide Convention, ratified by both South Africa and Israel, defines “genocide as a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.” Under this convention, states are obligated not to commit genocide, prevent genocide, punish genocide, enact legislation compliant with the convention, ensure effective penalties for violators, try persons charged with genocide and grant extradition when genocide charges are brought up.
Since South Africa and Israel are both member of the United Nations (UN), they are bound by all statues of the court, giving the ICJ jurisdiction over the genocide charges. According to Article 66.2 of the Rome Statute of the International Criminal Court (ICC), the prosecution has the burden of proving guilt; in this case, South Africa must provide ample evidence proving that Israelis intentionally commiting genocide.
According to NPR, Israeli officials, in response to these allegations, have strongly denied allegations of genocide. Prime Minister Benjamin Netanyahu issued a statement calling the court proceedings signs of an “upside-down world” and the United States (U.S.) Secretary of State Antony Blinken called the genocide case “meritless.”
An Al Jazeera article describes how South Africa, alongside the genocide charges, has asked the court to move quicky to prevent further crimes and to institute “provisional measures” or emergency measures before the case begins, arguing that provisional measures are “necessary to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity.”
The hearing began on Thursday, Jan. 11, 2024 and lasted two days, ending on Friday, Jan, 12, 2023. The Jan. 11-12 trial, which took place at The Hague in the Netherlands, is only addressing South Africa’s request for provisional measures; the court will not be ruling on wheather Israel has committed genocide during this phase of the hearing. In order to receive these provisional measures, South Africa must convice the court that the allegations of genocide are plausible. South Africa has requested to the court that Israel “suspend its military operations, take all measures necessary to prevent genocide, and to refrain from killing, injuring, or committing other acts constituting genocide against Palestinians” and halt any further violations of the Genocide Convention.
According to Al Jazeera, if the court decides to implement interim measures, Israel would have a legal obligation to comply, however, the court would have no authority to enforce this ruling; even if the court does not implement any provisional measures, they can still decide to try the case further.
The ICJ’s first hearing included fifteen ICJ judges, elected by the UN general Assembly and the Security Council to serve nine-year terms, alongside two additional judges from each of the plaintiffs’ countries. Judge Na Dikgang Moseneke resided on behalf of South Africa and Judge Aharon Barak resided on Israel’s behalf.
Al Jazeera reported that the hearing opened with a reading of South Africa’s case against Israel, demanding that Israel suspend military action in the Gaza strip and a reminder to the court that over 23,000 Palestinians have been killed since Oct. 7 by Israeli attacks in the Gaza strip.
Justice Minister of South Africa, Ronald Lamola stated that Israel’s response to Oct. 7 “crossed a line … No armed attack on a state territory, no matter how serious, even an attack involving atrocity crimes, can provide justification for or defence to breaches to the [1948 Genocide] Convention whether it’s a matter of law or morality.” He further added that this case proved the court with the opportunity to act in real time to prevent genocide from continuing in Gaza.
Adila Hassim, a representative in the South Africa case, laid out serious “genocidal acts” allegedly committed by Israel, highlighting them as violations of the Genocide Convention. She stated, “South Africa contends that Israel has transgressed Article II of the convention by committing actions that fall within the definition of genocide. The actions show systematic patterns of conduct from which genocide can be inferred.”
Hassim listed, and provided evidence for two violations of the Genocide Convention. First in violation of Article I, she stated, “the first genocidal act is mass killings of Palestinians in Gaza,” citing images of mass graves and unidentified bodies as evidence. Secondly, she brought up Israel on violations of Article II(b) for inflicting “serious bodily and mental harm to Palestians in Gaza.”
Tembeka Ngcukaitobi, a lawyer representing South Africa, spoke after Hassim, arguing that Israel’s political leaders have declared genocidal intent in their language regarding Palestinians in Gaza. Ngcukaitobi stated “Soldiers obviously believe that this language and their actions are acceptable because the destruction of Palestinian life in Gaza is articulated state policy.”
The hearing also addressed the issue of the court’s jurisdiction over the case. South Africa international law professor, John Dugard, highlighted that under the obligations of the genocide convention, states apart of the agreement are required not only to not engage in genocide but also prevent genocide.
Max du Plessis, also representing South Africa, stated that UN bodies and most human rights experts “[have] collectively considered the acts committed by Israel to be genocidal or at the very least warned that the Palestinian people [are] at risk of genocide”
South African legal representation, in their three hour case, also outlined that, since Oct. 7, Israel has acted behind the guise of “self-defense.” However, according to South Africa, Hamas is not a state, therefore it cannot be apart of the Genocide Convention and has no relevance to proceedings at The Hague.
South Africa’s ambassador to the Netherlands, also outlined earlier in the case that these genocidal acts stretch far beyond Oct. 7, stating “South Africa acknowledges that the genocidal acts and permissions by the state of Israel inevitably form part of a continuum of illegal acts perpetrated against the people, Palestinian people since 1948.”
Following South Africa’s presentation of their case, day one of the hearing concluded. The hearing resumed Friday, Jan. 12 to hear the Israeli case. Day two of the trial began with Israel denying accusations of genocide and instead accused Hamas of participating in genocidal acts.
According to the Jerusalem Post, Tal Becker opened Israel’s defense, stating “If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel … if there is a concern about the obligations of states under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas’s proudly declared agenda of annihilation, which is not a secret, and is not in doubt.”
Israel legal representatives argued that their army had acted in accordance with international law, and attempted to mitigate civilian casualties by dropping leaflets warning Gaza residents to evacuate twenty-four hours before bombing an area. The arguments revolved around Israel’s “right to self defenses” against Hamas for their attacks on Oct. 7.
Christopher Staker, a lawyer representing Israel, according to an Al-Jazeera article stated, “The inevitable fatalities and human suffering of any conflict is not of itself a pattern of conduct that plausibly shows genocidal intent.”
Acting director of the international justice division at Israel’s Ministry of Justice, Galit Raguan spoke before the ICJ during the hearing, claiming that Israel found evidence that “every single hospital in Gaza” was being used by Hamas, therefore, according to him, Israel was justified in bombing them and all the people inside of them.
In response to these claims, Palestinian foreign ministry official Ammar Hijazi, said in a comment to Al-Jazeera, “What Israel has provided today are many of the already debunked lies.”
According to Politico, following the proceedings, Lior Haiat, spokesman for the Israeli Ministry of Foreign Affairs, accused South Africa of “functioning as the legal arm of the Hamas terrorist organization.” The South African government has denied all allegations of ties to Hamas.
The timeline for the provisional ruling is not yet known, but, according to the Atlantic Council, the case will most likely take several years to conclude.
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