The Israeli Ministry of Foreign Affairs has 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".[5]
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]Avi Dichter, Israeli Minister of Agriculture, called for the war to be "Gaza’s Nakba" on Channel 12;[15]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".[16] Israeli historian of the Holocaust Omer Bartov warned that statements made by top Israeli officials "could easily be construed as indicating a genocidal intent".[17]
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 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 group. Victims must be targeted because of their real or perceived membership of a group, not randomly.[18][19]
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 signatory,[20] and brought pursuant to Article IX of the convention.[4][21]
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,[20] carrying out its own investigation.[22] 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."[20]
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][26] 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][26] While adjudication of the merits of the case may take years, such an order could be issued within weeks.[20] Additionally, South Africa's president Cyril Ramaphosa also compared Israel's actions to apartheid.[27]
The submission states that 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".[24] 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 [Palestinians'] destruction as a group".[23] South Africa asserts that statements made by Israeli officials, such as Prime Minister Benjamin Netanyahu, are evidence of genocidal intent.[23]
Israeli response
Israel rejected the allegations "with disgust"[20] and accused South Africa of "cooperating with a terrorist organisation that is calling for the destruction of the State of Israel",[7] describing the actions of South Africa as blood libel,[28][29] and claiming that they were "abetting the modern heirs of the Nazis".[30] The United Nations High Commissioner for Human Rights Volker Türk 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."[31]
On 2 January 2024, Israel decided to appear before the ICJ in response to South Africa's case, despite a prior history of ignoring international tribunals.[26][32] Israel will be represented by Malcolm Shaw and three other lawyers.[5][33]
The Israeli Ministry of Foreign Affairs has 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".[5] 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.[34][35]
Ofer Cassif, an Israeli politician representing the left-wing party Hadash, signed South Africa's petition and accused Israel of genocide.[36] In response, lawmakers began proceedings to expel him from the Knesset.[37]
On 9 January, a letter was sent by over 600 Israelis to the ICJ stating their support for the South African case, claiming that the Israeli government is taking "systematic steps to wipe out the population of Gaza, to starve them, to abuse them and to displace them."[38]
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.[39] 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".[40] Hachem and Hathaway state that the Rohingya genocide case (specifically, the acceptance of jurisdiction by the ICJ), "revolutionized" the doctrine of erga omnes. They conclude that it is "highly likely" the Court will find that South Africa has standing to institute the proceedings. They also state that establishing genocidal intent is "extraordinarily challenging".[40]
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.[41]
Other international responses
States and international organizations
South Africa's case has been supported by the following states and international organizations:
U.S. National Security Council Coordinator for Strategic Communications John Kirby said the U.S. found the "submission meritless, counterproductive, completely without any basis in fact whatsoever."[51] On 4 January 2024, the U.S. government, whose relationship with South Africa is increasingly frayed,[52] acknowledged that it had not conducted any formal assessment on whether Israel was violating international humanitarian law.[53] U.S. Secretary of State Antony Blinken called the genocide accusation against Israel 'meritless'.[54]
On 9 January, Belgium 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".[55] On 10 January, Brazilian president Luiz Inacio 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".[56]
Movements, parties, and unions
The lawsuit has also been supported by over 1,000 activist groups, political parties, unions, and other organizations, in the form of a letter organised by The International Coalition to Stop Genocide in Palestine such as:[57][58][59]
^Maupas, Stéphanie (1 January 2024). "Israel-Hamas war: South Africa brings 'genocide' case before international courts". Le Monde.fr. Retrieved 6 January 2024. 'Long years of apartheid'... The South African lawyers have relied on UN reports, reports by Palestinian journalists and research by NGOs, because Israel prevents the international press from entering the Gaza Strip, as well as investigators from the International Criminal Court and the UN Human Rights Commission. They added that this genocide is committed "against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination and ongoing denial of the right of the Palestinian people to self-determination."
^Powell, Anita (5 January 2024). "South Africa to Take Israel to Top UN Court on Genocide Claim in Gaza". Voice of America. Retrieved 6 January 2024. In the court application, South Africa argues that the treatment of Palestinians also bears strong resemblance to South Africa's own racially motivated apartheid regime, which ended in 1994 with Mandela's election. "It is important," the submission reads, "to place 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."
^The request for provisional measures is made under Article 74 of the Rules of the Court, which states that "A request for the indication of provisional measures shall have priority over all other cases."
^Mackenzie & Lubell 2023: "Israel has tightened its blockade on and bombarded Gaza for three weeks after the Islamist group Hamas' Oct. 7 assault killed 1,400 Israelis [...] Abbas ... said, "Our people in the Gaza Strip are facing a war of genocide and massacres committed by the Israeli occupation forces in full view of the entire world.""; Antonio 2023: "Israeli Ambassador to the Philippines Ilan Fluss rejected the notion that his country is committing genocide in Gaza City, where a two-week war has erupted [...] their measures were targeting Hamas members, and they were "taking all measures to avoid having civilians affected" by attacks. "We are informing civilians even before attacks: keep away from Hamas' infrastructure and Hamas' facilities," [...] Hamas attacked Israel on Oct. 7, and killed at least 1,400 people, mostly civilians."; Chacar 2023; Smith et al. 2023; Nichols 2023; Bishara 2023
^ abSalem, Mohammed; Al-Mughrabi, Nidal; Anthony, Deutsch (10 January 2024). "Israel to face Gaza genocide charges at World Court". Reuters. Retrieved 11 January 2024. Colombia and Brazil expressed their support of South Africa late Wednesday.
