Statement: South Africa’s genocide case against Israel before the International Court of Justice
by Yasmine Sami
South Africa has filed on 29 December 2023 an application instituting proceedings before the International Court of Justice (ICJ) concerning alleged violations by Israel of its international obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) regarding Palestinians in the Gaza Strip.
Indeed, according to South Africa, Israel has, since 7 October 2023, committed “with the requisite specific intent…to destroy Palestinians in the Gaza as a part of the broader Palestinian national, racial and ethnical group” actions and commissions considered “genocidal in character”.
The Application filed by the South African state also contains a Request for the indication of provisional measures. Therefore, South Africa requests the Court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.
On Thursday 11 and Friday 12 January 2024, the International Court of Justice will hold public hearings in the proceedings instituted by South Africa regarding the request for the indication of provisional measures.
ACHRS welcomes South Africa’s initiative to institute proceedings against Israel before the International Court of Justice and encourages all State Members to back the South African’s claim on genocide in Gaza. Indeed, our moral compass must tend towards a ceasefire and justice at last for the Palestinian people.
What is the International Court of Justice ?
The ICJ is the principal judicial organ of the United Nations. It was established by the United Nations Charter in 1945 and began its activities one year later. The Court has two roles: the first one is to settle, in accordance with international law, legal disputes submitted to it by States and the second one to give advisory opinions on legal questions referred to by United Nations organs and agencies.
While the International Criminal Court, which was established in 2002, seeks to hold individuals criminally responsible for genocide, war crimes and crimes against humanity, the ICJ holds States responsible for those crimes.
What is the legal definition of Genocide ?
Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I).
It was then codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) which, as of April 2022, has been ratified by 153 States (including both Israel and South Africa). The ICJ has stated that the prohibition of Genocide is a peremptory norm of international law (or ius cogens) which means that no derogation from it is allowed.
Article II of the Genocide Convention is defined in the same terms as in Article VI of the Rome Statute of the International Criminal Court.
Indeed, Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Therefore, there are two key elements in the definition of Genocide :
- A mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
- A physical element, which includes the enumerated five acts.
Importantly, the victims of Genocide are deliberately targeted because of their real or perceived membership of one of the four groups protected under the Convention (national, ethnical, racial or religious group). This means that the target of destruction must be the group, as such, and not its members as individuals. However, Genocide can also be committed against only a part of the group, as long as that part is identifiable and “substantial.”
Finally, the Genocide Convention establishes in Article I that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation. The contracting parties are also obligated to prevent and to punish the crime of genocide.
What are provisional measures ?
South Africa’s Application contains a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court. Such measures are temporary remedies granted under special circumstances while court proceedings continue to the next stage.
Provisional measures, which are in fact orders, are legally binding but not always followed. In 2022, the Court ordered Russia to immediately suspend its invasion in Ukraine after the latter filed a Genocide case. However, the order was ignored and the invasion continues till this day.
In this case, South Africa, requests that Israel suspend immediately its military operations in and against Gaza; ensure that individuals under its control do not engage in direct and public incitement to commit genocide; take all measures within its power to prevent the deprivation of access to adequate food and water; preserve evidence; submit reports on the measures taken to abide by the provisional measures ordered; and refrain from taking actions which might aggravate or extend the dispute before the Court.
What can we expect from this case ?
As ACHRS maintains its call for a ceasefire, we are hopeful for adequate provisional measures as well as international cooperation regarding the crucial work of the ICJ. While International Institutions and Jurisdictions such as the ICC and Western countries are facing double standards accusations in regards to the treatment of the Israeli occupation on the one hand and the Russian one on the other, the ICJ faces a major challenge and will have to meet its obligations: the protection of international law.
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Sources :
Lawal, Shola. 2024. “Can South Africa’s ICJ Case against Israel stop war in Gaza ?”. Al Jazeera. January 3rd, 2024. Accessed january 7th, 2024. https://www.aljazeera.com/news/2024/1/3/can-south-africas-icj-case-against-israel-stop-war-in-gaza
Wintour, Patrick. 2024. “Stakes high as South Africa brings claim of genocidal intent against Israel”. The Guardian. January 3rd, 2024. Accessed january 7th, 2024. https://www.theguardian.com/world/2024/jan/04/stakes-high-as-south-africa-brings-claim-of-genocidal-intent-against-israel
Corder, Mike. 2024. “South Africa’s genocide case against Israel sets up a high stakes legal battle at the UN’s top court”. AP News. January 2nd, 2024. Accessed january 7th, 2024. https://apnews.com/article/un-court-south-africa-israel-gaza-genocide-71be2ce7f09bfee05a7cae26689ee262
- Hathaway, Oona ; Hachem, Alaa. 2024. “The promise and Risk of South Africa’s case against Israel”. Just security. January 4th, 2024. Accessed january 7th, 2024. https://www.justsecurity.org/91000/the-promise-and-risk-of-south-africas-case-against-israel/
Meilhan, Pierre ; Feleke, Bethlehem ; Michaelis, Tamar. 2023. “South Africa files genocide case against Israel at International Court of Justice over Gaza war”. CNN. December 29th, 2023. Accessed january 7th, 2024. https://edition.cnn.com/2023/12/29/middleeast/south-africa-icj-israel-genocide-intl/index.html
Rome Statute of the International Criminal Court. United Nations. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf
Convention on the Prevention and Punishment of the Crime of Genocide. United Nations. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
International Court of Justice. “Proceedings instituted by South Africa against the State of Israel on 29 December 2023”. United Nations. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
