South Africa v Israel, International Court of Justice
What is happening?
In late December 2023, South Africa filed an application at the International Court of Justice (ICJ) in The Hague, Netherlands. This application accuses Israel of the internationally-recognized crime of genocide, and the failure to prevent it. From the ICJ’s website, here is the full text of the application.
On January 11 and 12, the parties presented testimony in front of the Court. The arguments were limited by the Court to 3 hours each. Here are videos of the proceedings.
Here is an overview of the case from Lawfare, and from Wikipedia.
What is the International Court of Justice?
The International Court of Justice is the judicial branch of the United Nations. It was established as part of the UN Charter, and all UN member states are participants. The Court considers cases involving difficult disputes between UN member states. Here is a description of the Court and its processes from the ICJ’s website.
There are 15 judges on the ICJ representing member states, which are elected by the General Assembly of the UN. Each is an experienced jurist from the represented country. Each serves a 9 year term. One member serves as presiding judge. From the Court’s website, here is a list of the current members.
In addition, for each case heard before the Court, there are ad-hoc judges appointed by the parties to the case. The ad-hoc judge from Israel is Aharon Barak. His appointment by Israeli Prime Minister Netanyahu and its implications are covered in this recent article from The New York Times.
The ad-hoc judge from South Africa is Dikgang Ernest Moseneke. This brief biographical overview comes from the Nelson Mandela University Faculty of Law.
The ICJ has additional cases on its docket. Here’s a list.
What is genocide?
We’ve recently discussed the term Genocide and whether or not it applies to the current conflict in one of our previous issues, linked here.
The application by South Africa specifically refers to the UN Convention on the Prevention of Genocide, which is contained in this document.
South Africa’s position
The main claims supporting the accusation of genocide are found in Part III, Section C of South Africa’s application to the ICJ (p. 30).
This section enumerates South Africa’s position that several aspects of Israel’s conduct in Gaza meet the definition of genocide as laid out by the UN Convention. These include the extensive civilian death toll, the physical and mental trauma endured by the population, the deprivation of basic necessities such as food, water, shelter, sanitation and medical services, and the wholesale destruction of Palestinian cultural and religious structures. The application further claims that the mental and physical hardship endured by Palestinians has resulted in the prevention of Palestinian births, matching yet another criteria for genocide in the UN convention.
Finally, citing quotes from senior Israeli political and military leaders, the application claims that the above actions were taken with the deliberate intent of physically destroying the Palestinian people as a whole.
The BBC presents an overview of the South African legal arguments.
The South African legal team is described in this article from The Conversation.
A final ruling by the ICJ could take years and as such, part of the South African case is a request for “provisional measures”. These are court orders calling on the parties to refrain from additional violence while the case is being deliberated. Blue Marble, the web publication of the Chicago Council on Global Affairs, discusses the basics of provisional measures in more detail.
Why South Africa?
Since April 1994, when the African National Congress party assumed control of the South African government, there has been an alliance between South Africa and the Palestinian cause. The importance of this relationship, published in The New Arab, is presented here.
An additional take on the connection and its 30 year history comes from AP.
Some maintain that South Africa’s ties with Hamas are problematic.
Israel’s position
On January 12, Israel responded to South Africa’s application in oral arguments, soundly rejecting the accusation of genocide. The Israeli legal delegation argued that Israel has no intention or motivation to annihilate the Palestinian people but is rather engaged in a war of self defense following the October 7th massacres perpetrated by Hamas.
While acknowledging the devastation in Gaza, they ascribed much of it to Hamas’ alleged practice of utilizing civilian structures and population centers for protection, as centers of militant operations and as staging areas for combat.
Further, Israel claimed that the picture of the realities in Gaza, presented by the South African application, is distorted and unsubstantiated. They argued that the South African application misrepresents the war as a one-sided Israeli assault on civilians, ignores the Hamas military operations, and fails to recognize the portion of destruction stemming from Hamas’ own actions.
When discussing the applicability of the UN convention on genocide, Israel acknowledged the civilian suffering in Gaza but claimed that the convention was not intended to address the impact of war on civilians, generally. Rather it “was set apart to address a malevolent crime of the most exceptional severity”, a crime of which Israel, they argue, is innocent.
New Matilda, an Australian user-supported news service, provides a transcript of Israel’s opening address by Dr. Tal Becker.
Several sources — AP News, Times of Israel, and the Washington Institute — provide details regarding the Israeli legal team, including Malcom Shaw, author of what is regarded as the definitive textbook on international law.
Immediately after the oral testimony on January 12 from attorneys representing Israel, AP provided this account and summary of the Israeli legal position.
Perspectives
A decision in this case will not be reached by a vote of member states. Nonetheless, a number of UN member states have expressed support for the South African argument, including Indonesia, Turkey, Brazil, and Namibia. Countries supporting the Israeli position include the US, the UK, France and Germany. Still others have withheld public support for either side, including Russia, China, and India.
Here is a sampling of published opinions, divided loosely into supporting sides — not to say that these publications are always on one side or another:
South Africa & Supporters:
Israel & Supporters
The Washington Post
Sky News
AJC
Just Security
The Israel Democracy Institute
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