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South Africa’s ICJ Genocide Case Against Israel

In its case before the International Court of Justice ICJ, South Africa has accused Israel of committing genocide against Palestinians, thereby violating the 1948 Genocide Convention to which both states are signatories. Israel continues to wage its war in Gaza in what it says is a response to the October 7 attack from Hamas, the group ruling Gaza. Yet conflicts between Israel and Palestine are longstanding, and have been around since the establishment of the state of Israel that saw the mass displacement of over 750,000 Palestinians.

As for South Africa’s involvement, the country has made no attempt to disguise its critique of Israel’s military operations within the state of Gaza. With a long history of apartheid many in South Africa have a strong pro-Palestine stance which has also been encouraged by the governing African National Congress. As a signatory to the Genocide Convention, it has said it has a responsibility to act.

To explain South Africa’s investment in this case President Cyril Ramaphosa made the statement that "our opposition to the ongoing slaughter of the people of Gaza has driven us as a country to approach the ICJ." He also recognised that "as a people who once tasted the bitter fruits of dispossession, discrimination, racism and state-sponsored violence, we are clear that we will stand on the right side of history."

South Africa’s report compiles a list of genocidal acts that they accuse Israel of committing against the Palestinian people. These acts include:

  • Killing Palestinians in Gaza
  • Causing serious bodily and mental harm to Palestinians in Gaza
  • Mass expulsion from homes and displacement 
  • Deprivation of access to adequate food and water 
  • Deprivation of adequate medical assistance 
  • Destruction of Palestinian life in Gaza
  • Imposing measures intended to prevent Palestinian births

Their evidence has been used to suggest how these acts are in fact "genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group". South Africa went onto accuse Hamas of Failing to punish incitement for genocide which in turn breaches the Genocide Convention.

In anticipation of Israel’s response, South Africa disputed the idea that this war is being waged in defence from Hamas, underlining the fact that Hamas is not a state and therefore cannot be a party to the Genocide Convention. Attacks by Hamas were condemned by South Africa, but could not be brought through the channels of the ICJ. The argument was also made by South Africa’s lawyers that genocide was still being committed regardless of Hamas’ actions.

Israel was then able to construct its own defence against these charges. The legal adviser of the Israeli Ministry of Foreign Affairs, Tal Becker, claimed that South Affrica had painted “a profoundly distorted factual and legal picture.” He argued that Israel has a right to defend itself against the October 7 attack, and that such an event should not be ignored. He put forth the idea that Israel’s actions were being decontextualised and manipulated, erasing Jewish history and Palestinian agency in the process. He even went on to appeal to the court to apply measures against South Africa, claiming that it was conjuring close ties with Hamas.

The question now is, can the court stop the war in Gaza? South Africa has appealed for the ICJ to order Israel to suspend its military operations in Gaza with immediate effect. ICJ rulings are legally binding for its parties which include both Israel and South Africa, however this is only in theory and is not technically enforceable. For example, the ICJ’s order that the Russian military stop its operations against Ukraine in 2022 was ignored.

A ruling in favour of, or against, South Africa’s request for provisional measures is expected to take place within the coming weeks. A fast response could see the prevention of what may very well go on to be declared genocide. Such a ruling will be very contentious. If the ruling falls on deaf ears as it did for Russia, the legitimacy of this form of governance and law will be greatly undermined. Whatever the result, it is sure to place the legitimacy of international bodies like the ICJ under heavy scrutiny. Ultimately, the ICJ’s final ruling on whether genocide is being committed could take several years to form.

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