After more than 100 days of Israel’s brutal campaign in Gaza, global attention has focused on the International Court of Justice (ICJ) at the Hague where South Africa filed a case against Israel for allegedly commiting genocide. South Africa claims that Israel has violated the United Nations’ 1948 Convention on the Prevention and Punishment of the crime of Genocide by targeting the Palestinian people as retribution for Hamas’ actions on October 7.
Through its application to begin proceedings, South Africa is looking for the ICJ to rule in favour of the implementation of provisional measures that would require Israel to immediately suspend its military operations in Gaza. The ICJ has jurisdiction over South Africa and Israel because both countries signed the 1948 Genocide Convention.
Over the course of January 11 and 12, South Africa and Israel presented their arguments to the ICJ judges for and against the implementation of provisional measures. Each country was allotted three hours to make their case, which the ICJ reminded should focus solely on the need for provisional measures if Israel is found to be acting with genocidal intent and not whether a genocide is occurring. The Court is now in deliberations and has provided no indication of when a decision will come.
As of the publication of this article, not a single Western country has publicly voiced support for South Africa. On the other hand, South Africa has received widespread support from several Latin American countries, including Colombia, Bolivia, and Brazil, and from the Arab League, the Organization of Islamic Countries, Turkey, Jordan, and several other countries.
South Africa’s arguments
In South Africa’s application to the ICJ, the State is clear that it believes “Israel’s acts and omissions in relation to Palestinians violate the Genocide Convention.” According to South Africa, the history of “apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination” imposed by the State of Israel serves as further proof that Israel has failed to prevent genocide.
Vusi Madonsela, the Ambassador Extraordinary Plenipotentiary of the Republic of South Africa to the Kingdom of the Netherlands’ Mission in The Hague, gave South Africa’s introductory statement. After thanking the Court for its speed in scheduling a date for the hearings—the case was only filed on December 29—he moved on to summarize South Africa’s view of the “ongoing Nakba of the Palestinian people through Israel’s colonization since 1948.”
The substantive opening statement given on behalf of South Africa by the country’s Minister of Justice and Correctional Services, Ronald Lamola, followed, as did arguments from six legal counsellors for why the ICJ should impose provisional measures on Israel for transgressing Article II of the Genocide Convention.
According to Adila Hassim, the first of the six councillors to speak, Israel has violated the Genocide Convention in five ways: Widespread killing of Palestinians because of their belonging to a particular group, inflicting immense bodily and mental harm by excessively and indiscriminately bombing Gaza, forcing the collapse of the healthcare system in Gaza, imposing sanctions that deliberately cut off access to essential conditions of life with the purpose of destroying the Palestinian people, and preventing further births of Palestinians through the combination of the previously listed conditions.
“All of these acts, individually and collectively, form a calculated pattern of conduct by Israel indicating a genocidal intent,” Hassim said in court on January 11. “This intent is evident from Israel’s conduct in specially targeting Palestinians living in Gaza, using weaponry that causes large-scale homicidal destruction, as well as targeted snipping of civilians, designating safe zones for Palestinians to seek refuge and then bombing them, depriving Palestinians in Gaza of basic needs […] destroying social infrastructure […] and killing, seriously injuring, and leaving large numbers of children orphaned.”
Throughout its allotted three-hour presentation to the ICJ, South Africa sought to prove the occurrence of the five betrayals of the Genocide Convention with a variety of evidence, much of which was collected or reported by the United Nations itself. Several UN Special Rapporteurs, including the Special Rapporteur on Violence against Women and Girls, were cited and UN statistics, combined with statistics
“Genocides are never declared in advance, but this court has the benefit of the past 13 weeks of evidence that shows incontrovertably a pattern of conduct and related intention that justifies a plausible claim of genocidal acts,” Hassim concluded.
Israel’s arguments
On January 12, Israel had the opportunity to defend itself against South Africa’s accusations. Tal Becker, a member of Israel’s legal counsel and no stranger to representing Israel at the ICJ, gave the State’s opening statement.
“For some, the promise of never again for all peoples is a slogan,” Becker said. “For Israel, it is the highest moral obligation [….] The applicant has now sought to invoke [the term genocide] in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad, and other terrorist organizations whose brutality knows no bounds.”
Throughout his statements, Becker reinforced the idea that Hamas sought to maximize damage whereas Israel has done the opposite in the ensuing conflict. He added that there is a difference between a genocide and the impacts of a military operation on a civilian population. Israel was then within its rights to attack Hamas and is not responsible for the ensuing violence.
After describing in gruesome detail some of the violence from October 7, Becker questioned the reliability of South Africa’s presentation the day before. The former legal counsel for the Permanent Mission of Israel to the United Nations explained that the “deliberately curated, decontextualized, and manipulative description of the reality of current hostilities” disregarded Israel’s right to defend itself as an internationally recognized sovereign state.
“In its sweeping counterfactual description of the Israeli-Palestinian conflict, [South Africa] seemed to erase both Jewish history and any Palestinian agency or responsibility,” Becker said. “Indeed, the delegitimization of Israel since its very establishment in 1948, in the applicant’s submissions, sounded barely distinguishable from Hamas’ own rejectionist rhetoric.”
The remaining legal counsels for Israel proceeded to deconstruct the context South Africa presented by adding details about what Israelis suffered on October 7, which was followed by an examination of the court’s jurisdiction, the legitimacy of Israel’s right to protect itself, and the definition of genocide.
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