Pro-Palestinian protesters gather near the International Court of Justice in The Hague, Netherlands on January 12, 2024.
| Photo Credit: Reuters
The story so far: The two-day proceedings before the International Court of Justice (ICJ) at The Hague between South Africa and Israel attracted global attention. South Africa had in late December moved the ICJ, invoking the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, against Israel, accusing it of committing genocide during its ongoing military campaign in Gaza. This is the second instance in recent years of two countries not directly locked in a dispute locking horns over allegations of genocide before the ICJ. In 2019, the Gambia had approached the ICJ against Myanmar for its alleged genocide against the Rohingya community. South Africa has sought the indication of provisional measures to stop the genocide while Israel has rebutted the allegation that it had any genocidal intent in its response to the October 7 terrorist attack by Hamas.
What gives ICJ jurisdiction?
The ICJ is the principal judicial organ of the United Nations. The statute that created it makes it clear that only states may be parties in cases before the Court. Both South Africa and Israel are signatories to the Genocide Convention of 1948, which has now been invoked by South Africa. Provisional measures are interim rulings of the ICJ aimed at preventing either party from doing irreparable harm to the main case. Proceedings instituted before the ICJ usually take years for disposal. In this instance, in its 84-page filing, South Africa has sought a series of measures including the immediate suspension of Israel’s military operations in Gaza and to desist from the commission of any act within the scope of the Convention against the Palestinian people. A request for provisional measures in this case will not involve a determination on whether a genocide has taken place, but it is enough for South Africa to demonstrate an intent to commit genocide.
What is the Genocide Convention?
The Genocide Convention, 1948, was the first human rights treaty to be adopted by the UN General Assembly. It primarily arose form a commitment to ‘never again’ allow mass killing of people such as the Holocaust. South Africa’s case is based upon Article II which says genocide means acts such as killing members of a national, racial, ethnic or religious group; causing serious bodily and mental harm to the members of the group; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. It has also accused Israel of causing hunger, dehydration, and starvation in Gaza by impeding sufficient humanitarian assistance, cutting off water, food, fuel, and electricity, and failing to provide shelter or sanitation to Palestinians in Gaza, including its 1.9 million internally displaced people. South Africa put the death toll at 23,000, 70% of them being women and children.
How did South Africa make its argument?
Lawyers appearing for South Africa drew heavily upon statements and remarks attributed to Israeli officials and military leaders, to contend that one could infer genocidal intent from their words and deeds. They also quoted extensively from remarks made by officials of the United Nations, the World Health Organization and the International Committee of the Red Cross, among others, to the effect that civilians throughout Gaza faced grave danger and the health care system had collapsed after hospitals were turned into battlegrounds. They emphasised that “nowhere is safe in Gaza” amid constant bombardment by Israel Defence Forces. They argued that the current operations should be seen in the context of the ‘Nakba’ of 1948, 75 years of ‘apartheid’, 56 years of occupation and 16 years of siege. Nakba, which means ‘catastrophe’ in Arabic, refers to the mass displacement of Palestinians during the Arab-Israeli war. A remark by Israel Prime Minister Benjamin Netanyahu referring to the Biblical character Amalek found particular mention in South Africa’s presentation to indicate “genocidal intent” as “it is being used by Israel soldiers to justify the killing of civilians in Gaza.” Amalek, according to the Hebrew Bible, was a persecutor of the Israelites and it is the duty of Israelites to eliminate Amalekites.
How did Israel counter the arguments?
Israel in its presentation on January 12 rejected any genocidal intent behind its ongoing campaign and argued that its response was legitimate and based on the norms of international law. It anchored its presentation on its right to self-defence. It claimed that its operations in Gaza were not aimed at destroying its people, but to protect them and that it was directed solely against Hamas and its allied groups and were aimed at removing Hamas’ capacity to threaten Israel. Its representative questioned the invocation of the term genocide in the context of Israel’s conduct in a war it did not start. They rejected the charge that any remarks attributed to its Prime Minister or Defence Minister indicated any genocidal intent. Rather, routine rhetoric has been twisted out of context in South Africa’s presentation. It also accused South Africa of relying on statistics provided by Hamas about casualties. Israel also put the blame on casualties on Hamas, claiming that its use of civilians as human shields was aimed at maximising harm to civilians. Unintended civilian casualties occurring during the pursuit of lawful military objectives do not indicate genocidal intent, it argued.
When is a provisional ruling expected?
A ruling on whether to issue provisional measures and, if so, what these measures will be, is expected within weeks. However, the ICJ has no means to enforce its own orders. It is possible for the UN Security Council to take measures, but it is subject to the veto power of permanent members. In the event of an adverse ruling, Israel may be banking on the U.S. to veto any attempt to enforce any such order.