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Application of the Genocide Convention to the Israeli military operations in the Gaza Strip (South Africa v. Israel)

Introduction

On Friday, 29 December 2023, South Africa seized the International Court of Justice (ICJ or Court) with a case against Israel under Article IX of the 1948 Genocide Convention. This blogpost tries to highlight some of the main points raised in the Application instituting proceedings (84 pages) and related issues concerning the case.

Structure and main grounds of the complaint

The Application instituting proceedings has 8 sections, starting with section 1 – introduction (paras. 1-7); section 2 – on the jurisdiction of the court (paras. 8-17); section 3 – on the facts (A. Introduction, paras. 18-20; B. Background, paras. 21-42; C. Genocidal Acts Committed against the Palestinian People, paras. 43-100; D. Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials and Others, paras. 101-107; E. Recognition of Israel’s genocidal intent against Palestinians, paras. 108-109); section 4 – on the claims of South Africa (para. 110); section 5 – on the relief sought (para. 111); section 6 – the request for provisional measures (introduction in paras. 112-16; A. Compelling Circumstances Require the Indication of Provisional Measures, paras. 117-119; B. The Prima Facie Jurisdiction of the Court, paras. 120-128; C. The Rights the Protection of Which Is Sought, their Plausible Character and the Link between such Rights and the Measures Requested, paras. 129-135; D. The Risk of Irreparable Prejudice and Urgency, paras. 136-143; E. Provisional Measures Requested, paras. 144-147); section 7 – on reservation of rights (para. 148); and, section 8 – on the appointment of the Agent (paras. 149-151). The Court’s jurisdiction in this case is based on Article 36 of the ICJ Statute and Article IX of the 1948 Genocide Convention.

In the application instituting proceedings, South Africa has claimed that

The acts and omissions by Israel complained of by South Africa 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, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.[1]

In the Application, South Africa emphasizes the importance of placing the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity.[2] A detailed account is provided of the calls to prevent and stop the genocide by world leaders and State representatives,[3] UN experts,[4] and the UN Committee on the Elimination of Racial Discrimination.[5] The application refers to the activity of the ICC Prosecutor and the referral of 17 November by South Africa and other States, noting that the Office of the Prosecutor has not given much information on the state of the investigations, including on the request by South Africa and other States for the ICC Prosecutor to investigate inter alia the crime of genocide.[6]

The Application claims that the facts relied on by South Africa in this application and to be further developed in these proceedings establish that — 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 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide… Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent. That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine. [7]

As part of the context, South Africa provides details of the situation in Gaza over many years spanning the period from 2000 to 2023, highlighting the serious violations of international law committed by Israel over the four asymmetrical wars and many other smaller assaults, as recorded by UN fact-finding missions.[8] The attack of 7 October 2023 in Israel is also covered in detail, including in connection with the condemnation expressed by the UN General Assembly through Resolutions ES-10/21 and ES-10/22 (2023) and the UN Security Council through Resolution 2712 (2023) and calls for the immediate release of Israeli hostages.[9]

Forms and acts of genocide unfolding in the Gaza Strip

South Africa has pointed out that information as is available establishes that Israel: (1) is engaged in killing Palestinians in Gaza — including Palestinian children — in large numbers; (2) is causing serious bodily and mental harm to Palestinians in Gaza, including Palestinian children; and is inflicting on them conditions of life intended to bring about their destruction as a group. Those conditions include: (3) expulsions from homes and mass displacement, alongside the large-scale destruction of homes and residential areas; (4) deprivation of access to adequate food and water; (4) deprivation of access to adequate medical care; (5) deprivation of access to adequate shelter, clothes, hygiene and sanitation; and (6) the destruction of the life of the Palestinian people in Gaza; and (7) imposing measures intended to prevent Palestinian births.[10] Besides the various forms of genocidal acts, the application also notes the targeting of all four Gaza universities as well as the destruction of numerous centres of Palestinian learning and culture.[11]

After addressing the various forms of acts of genocide, the Application notes that evidence of Israeli State officials’ specific intent (‘dolus specialis’) to commit and persist in committing genocidal acts or to fail to prevent them has been significant and overt since October 2023.[12] A long list follows with examples of statements, including by the Israeli Prime Minister, President, Minister of Defence, Minister for National Security, Minister of Energy and Infrastructure, Minister of Finance, Minister of Heritage, Minister of Agriculture, and the Deputy Speaker of the Knesset. Similar statements have been made by Israeli army officials, advisers and spokespersons, and others engaging with Israeli troops being deployed in Gaza.[13] These statements by Israeli decision-makers and military officials indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group “as such”.[14] They also constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished.[15] Similar genocidal rhetoric is also commonplace in Israeli civil society, with genocidal messages being routinely broadcast — without censure or sanction — in Israeli media.[16] Those statements by prominent members of Israeli society — including former parliamentarians and news anchors — constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished by the Israeli authorities.[17] That such sentiment appears to be so widespread and mainstream in Israeli society is of particular concern, in circumstances where the soldiers serving in Gaza are largely reservists, drawn from and informed by civil society.[18]

South Africa has claimed that the violations of the Genocide Convention include, but are not limited to:

(a) failing to prevent genocide in violation of Article I;

(b) committing genocide in violation of Article III (a);

(c) conspiring to commit genocide in violation of Article III (b);

(d) direct and public incitement to commit genocide in violation of Article III (c);

(e) attempting to commit genocide in violation of Article III (d);

(f) complicity in genocide in violation of Article III (e);

(g) failing to punish genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, in violation of Articles I, III, IV and VI;

(h) failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide, and complicity in genocide, in violation of Article V; and

(i) failing to allow and/or directly or indirectly impeding the investigation by competent international bodies or fact-finding missions of genocidal acts committed against Palestinians in Gaza, including those Palestinians removed by Israeli State agents or forces to Israel, as a necessary and corollary obligation pursuant to Articles I, III, IV, V and VI.[19]

Relief requested from the Court

South Africa has requested that the Court adjudge and declare that the State of Israel:

(a) has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided under Article I, read in conjunction with Article II, and Articles III (a), III (b), III (c), III (d), III (e), IV, V and VI;

(b) must cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring about its physical destruction in whole or in part, and fully respect its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;

(c) must ensure that persons committing genocide, conspiring to commit genocide, directly and publicly inciting genocide, attempting to commit genocide and complicit in genocide contrary to Articles I, III (a), III (b), III (c), III (d) and III (e) are punished by a competent national or international tribunal, as required by Articles I, IV, V and VI;

(d) to that end and in furtherance of those obligations arising under Articles I, IV, V and VI, must collect and conserve evidence and ensure, allow and/or not inhibit directly or indirectly the collection and conservation of evidence of genocidal acts committed against Palestinians in Gaza, including such members of the group displaced from Gaza;

(e) must perform the obligations of reparation in the interest of Palestinian victims, including but not limited to allowing the safe and dignified return of forcibly displaced and/or abducted Palestinians to their homes, respect for their full human rights and protection against further discrimination, persecution, and other related acts, and provide for the reconstruction of what it has destroyed in Gaza, consistent with the obligation to prevent genocide under Article I; and

(f) must offer assurances and guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI.[20]

Request for provisional measures

In light of the extraordinary urgency of the situation, South Africa has sought an expedited hearing for its request for the indication of provisional measures. In addition, pursuant to Article 74(4) of the Rules of Court, South Africa has requested the President of the Court to protect the Palestinian people in Gaza by calling upon Israel immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention pending the holding of such hearing, so as to enable any order the Court may make on the request for the indication of provisional measures to have its appropriate effects.[21]

As a State party to the Genocide Convention, South Africa has requested the Court, as a  matter of extreme urgency, pending the Court’s determination of this case on the merits, to  indicate the following provisional measures in relation to the Palestinian people as a group  protected by the Genocide Convention. These measures are directly linked to the rights that form the subject matter of South Africa’s dispute with Israel:

(1)      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) 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) 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:

(a)      killing members of the group;

(b)      causing serious bodily or mental harm to the members of the group;

(c)      deliberately inflicting on the group conditions of life calculated to bring about its  physical destruction in whole or in part; and

(d)      imposing measures intended to prevent births within the group.

(5) 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:

(a)      the expulsion and forced displacement from their homes;

(b)      the deprivation of:

(i)   access to adequate food and water;

(ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;

(iii)    medical supplies and assistance; and

(c)      the destruction of Palestinian life in Gaza.

(6) 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) 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)     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) 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.[22]

What happens next?

Because proceedings concerning provisional measures have priority, the Court will have to convene a public hearing as soon as possible to hear the parties and make an order if it finds that it has prima facie jurisdiction and that a prima facie case has been made that there is ongoing genocide or an immediate risk of that happening in the Gaza Strip. Within the next couple of weeks, but hopefully early in week 2, starting on 8 January, such hearings will be scheduled. And, subsequently an order will be made before the end of January 2024 – following largely the request made by South Africa.

As a comparison, there are two other cases pending before the Court, based on the Genocide Convention, namely Gambia v. Myanmar and Ukraine v Russian Federation. The case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), was filed by Gambia on 11 November 2019, public hearings were held on 10, 11, and 12 December 2019, and the order was made on 23 January 2020. The whole procedure, from filing the complaint to the Court’s order, lasted 74 days. Ukraine filed a case against Russian Federation on Saturday, 26 February 2022 (Application instituting proceedings and request for provisional measures). Three days after (including Sunday), on 1 March, the President of the Court arranged public hearings for 7 and 8 March 2022. On 1 March, the President of the Court also sent a message to the Russian authorities based on Article 74, paragraph 4, of the Rules of Court. An order on provisional measures was made on 16 March 2022. The whole procedure, from filing the complaint to the Court’s order, lasted 19 days. It is to be hoped that the Court will give similar priority as in the Ukraine case to a case where genocide is ongoing or impending.

The situation in Gaza, with about 22 thousand Palestinians killed and 56 thousand injured, and 2,2 million at imminent risk of famine (as of 30 December 2023, day 85) makes the need for the Court to indicate provisional measures very urgent. To compare the effects of the Israeli military operations in Gaza with those of the Russian military in Ukraine, in terms of numbers of civilians killed as percentage of the population (*rounding up Ukraine’s population before the 24 February 2022 military invasion by the Russian Federation at 40 million – and taking the fatality rate of women and children at 70% as that reported in Gaza – and noting that the rest of the Palestinians killed cannot be automatically counted as combatants/fighters), it would have meant that the Russian military would have killed about 280 thousand Ukrainian women and children in less than three months. The number of civilian deaths reported by the UN for Ukraine on 21 November 2023, after about 21 months of the war, is about 10 thousand. Moreover, there was no comparable risk of mass starvation of population at Ukraine at any point, unlike the ongoing situation in the Gaza Strip. This is not to downplay the serious violations of humanitarian law and human rights in Ukraine, but just to emphasize that the scale of human rights and humanitarian law violations in the Gaza Strip is unprecedented.  

Legitimacy concerns and double standards

Some colleagues have complained that the Court has opened Pandora’s box and that the ICJ is being used for political purposes. Besides this being a rather cynical take, few of these colleagues have complained of this when Gambia (allegations of various forms of genocidal acts in Myanmar) or Ukraine (abuse of the Genocide Convention as a ground for military intervention by the Russian Federation), seized the Court. Many States have intervened in these legal proceedings, with 32 States in the Ukraine case and 7 States in the Gambia case. It remains to be seen how many States will join the case brought by South Africa. These four cases, namely by Gambia and South Africa based on the 1948 Genocide Convention, and those brought based on the Convention Against Torture by Canada and the Netherlands against Syria (filed in June 2023 – ongoing) and Belgium against Senegal (filed in February 2009-judgment of July 2012) can be seen as cases of community interests coming to light, as Judge Simma has claimed in several publications, including the preface to my late 2021 edited book on community interests (open access as e-book here). There is a political element in any case or dispute brought before the ICJ. However, the Court has not opened any Pandora’s box. Few States have used sparingly (four times) the compromissory clauses contained in human rights treaties, namely the Genocide Convention and the Convention against Torture, to bring cases of general or community interest before the Court and through them to influence the course of the events. Seizing the Court based on these compromissory clauses is not a monopoly of Western States or of developing States, albeit some States will have more capacity than others to bring such cases or to engage in advisory proceedings. When it comes to the dire situation in Palestine, caused by the 56-year occupation by Israel and the denial of the right to self-determination to the Palestinian people for more than 75 years, the interventions and submissions by a majority of Western States in the two advisory opinions brought before the Court concerning the situation in Palestine, and their actions and omissions over decades, speak volumes about their double-standards. These cases brought before the ICJ are very good, because they cause for the masks to fall, and for the world (at a minimum those international lawyers who follow the Court) to know who is less inconsistent when it comes to ensuring respect for human rights or consistently hypocritical when it comes to the rights of the Palestinian people. Arguably, a few of the States who claim to be “champions” of human rights come out looking pretty bad. From my part, I applaud South Africa and its legal team for having brought this case to the Court and for having argued it so well in their Application!


[1] Application, para. 1.

[2] Para. 2.

[3] See detailed list of Heads of States and State representatives, in para. 12.

[4] Para. 108.

[5] Para. 3.

[6] Para. 31.

[7] Para. 4.

[8] Paras. 27-31.

[9] Paras. 40-41.

[10] Para. 43.

[11] Paras. 90-91.

[12] Para. 101.

[13] Para. 102.

[14] Para. 103.

[15] Para. 103.

[16] Para. 106.

[17] Para. 107.

[18] Para. 107.

[19] Para. 110.

[20] Para. 111.

[21] Para. 6.

[22] Para. 144.

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