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South Africa's genocide case against Israel

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South Africa v. Israel (Genocide Convention)
CourtInternational Court of Justice
Full case name Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
Started29 December 2023
TranscriptTranscript of South Africa's submissions regarding provisional measures Transcript of Israel's submissions regarding provisional measures
ClaimIsrael has committed, and is committing, genocidal acts and genocide against Palestinians in the Gaza Strip in violation of the Genocide Convention
Keywords

The proceedings instituted by South Africa against the State of Israel on 29 December 2023 before the International Court of Justice (ICJ), officially known as Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), allege that Israel has committed, and is committing, genocide against Palestinians in the Gaza Strip, in violation of the Genocide Convention. South Africa's submission places the charges in what it describes as the broader context of Israel's conduct towards Palestinians, including what it described as a 75-year apartheid, 56-year “belligerent occupation” and 16-year blockade of the Strip.[1][2] South Africa has requested that the ICJ render provisional measures of protection.[3][4]

The Israeli Ministry of Foreign Affairs described South Africa as "functioning as the legal arm" of Hamas, while characterizing South Africa's case as relying on "false and baseless claims".[5]

Two days of public hearings were held on 11 and 12 January 2024 at the Peace Palace in The Hague, respecting South Africa's request for provisional measures of protection.[6] Israel is represented by several lawyers including Malcolm Shaw and Tal Becker,[7][8] and the South African legal team includes John Dugard, Adila Hassim, Tembeka Ngcukaitobi and Vaughan Lowe.[9] Israel and South Africa appointed Aharon Barak[8][10] and Dikgang Moseneke, respectively, as ad hoc judges.[11][12]

Background

Main articles: Allegations of genocide in the 2023 Israeli attack on Gaza and Palestinian genocide accusation

After Israel began the bombing of Gaza following the 7 October attacks, some Palestinians expressed concern that the responding violence would be used to justify genocide against Palestinians by Israel.[13] After the attacks by Hamas, Yoav Gallant, Israeli Minister of Defense, stated "We are fighting human animals, and we are acting accordingly".[14][15] Avi Dichter, Israeli Minister of Agriculture, called for the war to be "Gaza’s Nakba" on Channel 12;[16] Ariel Kallner, another Member of the Knesset from the Likud party, similarly wrote on social media that there is "one goal: Nakba! A Nakba that will overshadow the Nakba of [1948]. Nakba in Gaza and Nakba to anyone who dares to join".[17] Israeli historian of the Holocaust Omer Bartov wrote an op-ed in The New York Times arguing that, while Israel had not actually committed genocide, such statements contained "deeply alarming language" and "[t]aken together... could easily be construed as indicating a genocidal intent."[18]

Genocide Convention

Main article: Genocide Convention

In 1948, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which defined genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". The acts were: killing members of the protected group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the protected group. Victims must be targeted because of their real or perceived membership of a protected national, ethnic, racial or religious group.[19][20]

Proceedings

Public hearings will be held at the Peace Palace in The Hague

Proceedings were instituted on 29 December 2023 at the International Court of Justice pursuant to the Genocide Convention, to which both Israel and South Africa are signatories,[21][22] and brought pursuant to Article IX of the convention.[4][23]

Balkees Jarrah, associate international justice director at Human Rights Watch, notes that the ICJ case is not a prosecution of individuals, and does not directly involve the International Criminal Court, which is a separate body[21] that is currently carrying out its own investigation.[24] Jarrah stated that the case presents an opportunity to "provide clear, definitive answers on the question of whether Israel is committing genocide against the Palestinian people".[21]

According to legal academics, South Africa's request for provisional measures against Israel does not require a determination of whether Israel actually perpetuated genocide, but instead requires the determination that it is "plausible" that genocide occurred.[25][26] Recent rulings in regard to the granting of provisional measures have taken between two weeks and one month after hearings.[27] A final judgement on the case could take years.[21][28]

Separately, hearings begin in February 2024 in regard to a U.N. request for a non-binding advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem.[29]

South African government position

South Africa accuses Israel of committing acts of genocide in the Gaza Strip in violation of the 1948 Genocide Convention, which defined and prohibited genocide.[30][31] The South African legal team includes John Dugard, Adila Hassim, Tembeka Ngcukaitobi, Max du Plessis, Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, Vaughan Lowe and Blinne Ní Ghrálaigh.[9] South Africa has also appointed former Deputy Chief Justice Dikgang Moseneke as an ad hoc judge.[12][32] During his period of imprisonment on Robben Island, Moseneke had met and befriended fellow anti-apartheid activist and future President Nelson Mandela,[32][33] who went on to become a supporter of the Palestinian cause himself.[34][35] A number of international political figures will be joining the South African delegation, including Jeremy Corbyn and Jean-Luc Mélenchon.[36][37]

In the country's 84-page application it alleged that Israel's actions "are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group".[4][38] South Africa requested that the ICJ issue a binding legal order on an interim basis (i.e., prior to a hearing on the merits of the application), requiring Israel to "immediately suspend its military operations in and against Gaza."[4][38] Additionally, the incumbent South African president Cyril Ramaphosa also compared Israel's actions to apartheid.[39]

The submission states that "acts and omissions by Israel ... are genocidal in character, as they are committed with the requisite specific intent ... to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group".[31] Genocidal actions alleged in the suit included the mass killing of Palestinians in Gaza, the destruction of their homes, their expulsion and displacement, as well as their blockade on food, water and medical aid to the region. South Africa said that Israel had imposed measures preventing Palestinian births through the destruction of essential health services vital for the survival of pregnant women and their babies. The suit argued that these actions were "intended to bring about their [Palestinians] destruction as a group".[30] South Africa asserts that statements made by Israeli officials, such as Prime Minister Benjamin Netanyahu, are evidence of genocidal intent.[30]

The South African application set out nine provisional measures of protection requested:[40]

Number Summary Full description
1 Suspension of military operations The State of Israel shall immediately suspend its military operations in and against Gaza.
2 The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above.
3 Prevent genocide The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
4 Desist from killing, injuring, destroying life and preventing births The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
  1. killing members of the group;
  2. causing serious bodily or mental harm to the members of the group;
  3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
  4. imposing measures intended to prevent births within the group.
5 Prevent displacement, deprivation and the destruction of life The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
  1. the expulsion and forced displacement from their homes;
  2. the deprivation of:
    1. access to adequate food and water;
    2. access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
    3. medical supplies and assistance; and
  3. the destruction of Palestinian life in Gaza.
6 Desist from incitement, and punish acts of and encouragement to genocide The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
7 Prevent the destruction of and ensure the preservation of evidence The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
8 Submit ongoing reports to the Court on measures taken The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
9 Refrain from aggravating the situation The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Israeli government position

Israel rejected the allegations "with disgust"[21] and accused South Africa of "cooperating with a terrorist organisation that is calling for the destruction of the State of Israel".[41] They described the actions of South Africa as blood libel[42][43] and claimed that the proceedings were "abetting the modern heirs of the Nazis".[44]

On 2 January 2024, Israel appeared before the ICJ in response to South Africa's case, which represented an exception in the country's history of ignoring previous international tribunals.[38][45] Israel's legal team includes Malcolm Shaw, Tal Becker, and two other lawyers.[46][47] Israel has also appointed former President of the Supreme Court of Israel Aharon Barak as an ad hoc judge.[8][10][48] Barak's appointment was praised by the majority of the public opinion, due to him being an internationally respected legal authority,[10][48] but also received criticism from several far-right Israeli politicians, including Ministers Bezalel Smotrich and Amihai Ben-Eliyahu,[48] since Barak had harshly criticized the government-backed judicial reform and encouraged the subsequent protests across the country in 2023.[10][48]

Israeli Prime Minister Benjamin Netanyahu responded that it was Hamas that was committing genocide, instead of Israel.[49] Netanyahu added that the Israel Defense Forces are "acting as morally as possible".[49] In a later statement, Netanyahu stated that "nobody" could stop Israel from continuing its actions in Gaza, including The Hague.[50] The Israel Defense Forces states that it takes actions to reduce civilian casualties such as warning civilians in targeted areas and not striking certain areas with civilians.[49] The Israeli government has stated multiple times that it wants to eliminate Hamas and not Palestinians.[49]

The Israeli Ministry of Foreign Affairs described South Africa as "functioning as the legal arm" of Hamas, while characterizing South Africa's case as relying on "false and baseless claims".[5] The ministry stated in diplomatic cables that a ruling against Israel "could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications".[46] Israel's defence is expected to require convincing the court that public commentary on the situation in Gaza made by various members of the government coalition does not constitute genocidal intent.[51][52]

The Israeli legal team, led by British jurist Malcolm Shaw, argued that Israel did not possess the "special intent" required for the crime of genocide. Shaw contended that the South African case provided only a partial narrative and asserted that the United Nations' highest court lacked jurisdiction over the Gaza war – a matter awaiting the judges' response. According to Haaretz, what allowed South Africa to present their case was not the actual events of the war, but instead incendiary comments made by certain members of the current Israeli government coalition. Shaw invited the court to consider the decisions of the Israeli cabinets instead of focusing on "random statements by politicians who are not decision-makers".[53]

Analysis

Lawfare, a blog affiliated with the Brookings Institution, likened South Africa's application to proceedings instituted by The Gambia against Myanmar in relation to the Rohingya genocide.[54] Writing in Just Security, an online forum based at the Reiss Center on Law and Security, Alaa Hachem and Professor Oona A. Hathaway note South Africa's invocation of erga omnes partes, a doctrine of legal standing which "allows a State party to a treaty protecting common legal rights to enforce those rights even if the State is not directly affected by the violation".[55] Hachem and Hathaway state that the Rohingya genocide case (specifically, the acceptance of jurisdiction by the ICJ), "revolutionized" the doctrine of erga omnes. They concluded that it was "highly likely" the Court will find that South Africa has standing to institute the proceedings. They also stated that establishing genocidal intent is "extraordinarily challenging".[55]

Professor Luciano Pezzano, writing in the Blog of the European Journal of International Law, argues that invoking Article IX of the Genocide Convention is a means by which uninvolved states can fulfill their obligation to prevent genocide.[56]

David Scheffer, who served as the first United States Ambassador-at-Large for War Crimes Issues, criticized South Africa's case for what he called a "complete lack of recognition... that Israel is at war," and argued that any Palestinian civilian deaths are the result of a military action against an enemy which Israel has "a justifiable right to attack in self-defense," rather than genocidal intent. Scheffer said that in a military and responsorial context of events since the October 7 attack, coupled with Israel's evacuation of Gazan civilians and its humanitarian aid efforts, would make it "clearly a line too far to try to argue that it is Israel that actually has the intent to commit genocide when Israel is responding to a genocidal act in order to prevent further genocide against Israel."[57]

Other international responses

States and international organizations

In support

South Africa's case has been supported by the following states and international organizations:

On 9 January, Belgian Deputy Prime Minister Petra de Sutter stated she was encouraging her government to support the suit, stating, "Belgium cannot stand by and watch the immense human suffering in Gaza. We must act against the threat of genocide".[79] On 10 January, Brazilian President Luiz Inácio Lula da Silva expressed support for the lawsuit, with the Ministry of Foreign Affairs stating, "The president expressed his support for South Africa's initiative to call on the International Court of Justice to order Israel to immediately cease all acts and measures that may constitute genocide".[60]

Namibian President Hage Geingob released a statement criticizing Germany's "shocking decision" to support Israel at the genocide case, claiming Germany had failed to draw lessons after having perpetrated the 1904 Herero and Namaqua genocide: "Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza."[80]

In opposition

South Africa's case has been opposed by the United States, which is itself being sued for complicity in genocide in domestic legal proceedings.[87][88] U.S. National Security Council spokesperson John Kirby, who stated the U.S. was not conducting formal assessments of Israel's compliance of international humanitarian law,[89] said the U.S. found the "submission meritless, counterproductive, completely without any basis in fact whatsoever".[90] U.S. Secretary of State Antony Blinken called the genocide accusation against Israel "meritless".[86] Prime Minister of Canada Justin Trudeau said he did not accept the premise of South Africa's genocide motion, while the opposition Conservative Leader Pierre Poilievre[91] called the accusation a shameless and dishonest attack on Jewish people and the Jewish state.[92]

Guatemala, whilst in the midst of an attempted coup d'état,[93][94] said that the filing was regrettable and that Israel was making a "legitimate defense against the attacks of the terrorist group Hamas".[84] Austrian Chancellor Karl Nehammer and Czech Prime Minister Petr Fiala said in a joint statement that they "oppose any attempts to politicize the ICJ." Hungarian Foreign Minister Péter Szijjártó condemned the "legal attack launched against Israel".[81] British Prime Minister Rishi Sunak had the opinion that South Africa's case was "completely unjustified and wrong", according to his spokesperson.[49]

Germany has announced its opposition to South Africa's application and its intention to intervene before the ICJ on Israel's behalf.[83] Germany's Vice Chancellor Robert Habeck stated: "You can criticise the Israeli army for acting too harshly in the Gaza strip, but that is not genocide."[81] Germany's support of Israel evoked strong criticism from the government of Namibia, with President Hage Geingob stating Germany had not learned its lesson after committing the Herero and Namaqua genocide.[95][96]

Australian Prime Minister Anthony Albanese declared that the Australian government will not participate in South Africa's genocide case against Israel.[97] The Irish government has announced it will not join South Africa's case against Israel. Irish Prime Minister Leo Varadkar said: "I would be a little bit uncomfortable about accusing Israel, a Jewish state, of genocide given the fact that six million Jews - over half the population of Jews in Europe - were killed."[98]

Movements, parties, and unions

The lawsuit has also been supported by hundreds of activist groups, NGOs, political parties, unions, and other organizations, with (as of mid-January 2024) over 1400 showing support in the form of a letter organized by the newly-formed International Coalition to Stop Genocide in Palestine.[99][100][101][102][103][104] Some of that letter's signatories, and other supportive organizations, include:

Individuals and other groups

Raz Segal, an Israeli historian of genocide, stated the case was notable due to the "mountain of evidence on genocidal intent that’s been expressed by people with command authority".[117] Rosalie Silberman Abella, a former puisne justice of the Supreme Court of Canada, called the ICJ proceedings an "abuse of the principles of the international legal order."[118]

Christian groups throughout South Africa condemned their government's decision to take Israel to the ICJ, and South Africa's refusal to condemn Hamas.[119]

Volker Türk, the United Nations High Commissioner for Human Rights, said: "It is not a blood libel to deplore the failure to hold to account Israeli soldiers and armed settlers who have killed hundreds of Palestinians in the West Bank since October 7, or the prolongation of a war whose conduct has raised grave international humanitarian and human rights law concerns."[120]

Ofer Cassif, an Israeli politician representing the left-wing party Hadash, signed South Africa's petition and accused Israel of genocide.[121] In response, lawmakers began proceedings to expel him from the Knesset.[122] On 9 January, an open letter to the ICJ signed by over 600 Israelis stated their support for South Africa's case.[123][additional citation(s) needed] A group of New Zealand's legal experts, led by David Williams and Jane Kelsey, signed an open-letter urging Prime Minister Christopher Luxon to support South Africa's petition.[124]

See also

References

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Bibliography

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