South Africa's Genocide Plea Against Israel: A Legal Battle at the ICJ

15 January 2024

Mariana Mayor Lima

Middle East and Human Rights Researcher

Global Human Rights Defence

On December 29, 2023, 82 days after the Hamas attack on October 7 in southern Israel, resulting in deaths and hostages and initiating the ongoing conflict between both actors, South Africa filed a case in the International Court of Justice (“the ICJ”) alleging that Israel is involved in “genocidal acts” in Gaza. [1] The ICJ, the primary judicial organ of the United Nations (“the UN”), was established after World War II by the UN Charter with the aim of, guided by international law, resolving disputes between states and issuing advisory opinions on legal matters. [2]

The Court confirmed the application regarding alleged violations of Israel’s obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention”). [3] According to Articles II and III of the Convention, genocide can be defined as committing “one or more acts with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group” with acts including killing or causing serious physical or mental harm to group members; 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. [4] Additionally, the Convention emphasises that a “group” can be understood as any distinct set of individuals, stable or mobile, linked by bonds of homogeneity, namely, ethnicity, race, religion, or language. [5]

South Africa’s application to the ICJ argues that “Israel has engaged, is engaging, and is at risk of engaging further in genocidal acts against the Palestinian people in Gaza” while also specifying that “acts and omissions by Israel are genocidal, as they are committed with the specific intent of the requirement to destroy Palestinians in Gaza as part of the broader Palestinian national, racial, and ethnic group.” [6] South Africa seeks to determine the jurisdiction of the Court under Article 36, paragraph 1, of the Statute of the Court and Article IX of the Genocide Convention, to which both South Africa and Israel are parties, that read as follows: [7]

Article 36 of the Statute of the Court:  The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 

Article IX of the Genocide Convention: Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

The conflict was initiated when Hamas members attacked Israel, leading to approximately 1,300 deaths, mostly civilians, and around 240 hostages were taken to Gaza. [8] Subsequently, Israel responded with a military campaign against Hamas, resulting in the deaths of over 23,000 people in Gaza. The majority of casualties were women and children, with approximately 10,000 children among the victims, as reported by the health ministry controlled by Hamas. [9] At this moment, the residents of Gaza continue to endure the ongoing impacts of this profoundly devastating conflict.

This disproportionate response with a large number of civilian and especially child casualties has raised concerns not only in South Africa but also from countries that supported South Africa's case against Israel in the ICJ, such as the Organization of Islamic Countries (“the OIC”), Malaysia, Türkiye, Jordan, Bolivia, The Maldives, Namibia, Pakistan, the Arab League, Colombia, Brazil. [10] The contested acts involve airstrikes, indiscriminate use of force, forced removal of population, and failure to prevent harm to civilians. [11] According to South African representatives, the ICJ’s intervention is crucial to stop the daily and irreparable loss of lives, properties, dignity, and humanity. [12]

In response, Israel vehemently rejected South Africa's accusations. [13] Israeli lawyer Tal Becker argued that South Africa presented a “deeply distorted and legally inaccurate” description of the conflict. He emphasised that the South African case relies on a manipulative interpretation of the reality of the current conflict. [14] Additionally, Israel claimed that South Africa is attempting to undermine Israel’s inherent right to self-defense by seeking the court to order the suspension of the military operation against Hamas. [15]

The Israeli government, represented by Lior Haiat, spokesperson for the Ministry of Foreign Affairs, rejects the accusations from South Africa, arguing that the African country is collaborating with Hamas. [16] Similarly, Israeli leader Benjamin Netanyahu denies the genocide accusations and emphasises the moral actions of the Israel Defense Forces, which, according to Netanyahu, take measures to avoid civilian casualties, including leaflet warnings, phone calls to civilians, and halting attacks in the presence of non-combatants. [17]

As a signatory to the UN Genocide Convention of 1948, South Africa claims a moral duty to intervene. The African National Congress stands in solidarity with the Palestinian cause, drawing parallels to its historical struggle against apartheid. [18] However, despite South Africa’s plea to the International Court of Justice for an immediate halt to Israel’s military operations in Gaza, the efficacy of such an order remains uncertain. While ICJ decisions are legally binding, their practical application often falls short. The ICJ might expedite a decision on the military suspension, theoretically protecting Palestinians from future genocidal acts by issuing provisional measures. Nevertheless, a fully binding final decision on Israel’s alleged genocide may extend over several years.

Sources and further reading:

For the full text of South Africa’s application, see: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf 

For the Verbatim records of the hearing held on 12.01.2024: https://www.icj-cij.org/sites/default/files/case-related/192/192-20240112-ora-01-00-bi.pdf and https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf 

[1] International Court of Justice, ‘ICJ History’(2017) <History | INTERNATIONAL COURT OF JUSTICE> accessed 13 January 2024.

[2] International Court of Justice, ‘ICJ Case Document’ (12 January 2024) <https://www.icj-cij.org/sites/default/files/case-related/192/192-20231229-pre-01-00-en.pdf> accessed 13 January 2024.

[3] Ibid.

[4] International Committee of the Red Cross, ‘Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948’ <https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948> accessed on 13 January 2024.

[5] Ibid.

[6] Supra, note 2.

[7] Supra, note 2.

[8] BBC, ‘What is South Africa’s genocide case against Israel at the ICJ?’ (14 January 2024), <https://www.bbc.co.uk/news/world-middle-east-67922346> accessed 14 January 2024.

[9] Ibid.

[10] Al Jazeera, ‘Which countries back South Africa’s genocide case against Israel at ICJ?’ (9 January 2024), <https://www.aljazeera.com/news/2024/1/9/which-countries-back-south-africas-genocide-case-against-israel-at-icj> accessed on 14 January 2024.

[11] Supra, note 8.

[12] BBC, ‘Israel says South Africa distorting the truth in ICJ genocide case’ (13 January 2024), <https://www.bbc.com/news/world-middle-east-67944903> accessed on 14 January 2024. 

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] BBC, ‘South Africa files ICJ case accusing Israel of 'genocidal acts' (29 December 2024), <https://www.bbc.co.uk/news/world-africa-67844551> accessed on 14 January 2024.

[17] Supra, note 8.

[18] Supra, note 8.