SA lodged an urgent application at the International Court of Justice (ICJ) in late December to obtain an order directing Israel to refrain from acts that may constitute genocide under the 1948 Genocide Convention, to which both countries are signatories.
The application follows an attack by Hamas on positions bordering the Gaza strip on October in which a reported 1,200 Israelis were killed and 240 more were kidnapped. Israel officials. Israel responded with an assault on Gaza, where Hamas members are located, killing more than 21,000 people, according to Palestinian health officials. Israel maintains it is “making every effort to limit harm to the non-involved”.
According to SA’s department of international relations and co-operation, the ICJ “is requested to declare on an urgent basis that Israel is in breach of its obligations in terms of the Genocide Convention”. Israel says SA’s claims are “baseless” and will be defending itself when the case is expected to be heard in the Hague next week.
Business Day spoke to international law experts about the matter.
“The complaint is not about the conflict per se,” says Gerhard Kemp, law professor at University of the West of England, Bristol, who previously taught in SA. “Rather it is about the duty of a state [that is] party to the 1948 Genocide Convention to prevent genocide.”
Hennie Strydom, University of Johannesburg law professor and president of the SA Branch of the International Law Association, agrees. “If there is a dispute between parties to the Genocide Convention [such as SA and Israel] the dispute shall be referred [to the ICJ] by any of the parties to the dispute.”
Strydom says the dispute between Israel and SA concerns “whether the actions taken by Israel in Gaza amount to genocide” in terms of the convention. SA’s case is that Israel’s response “and the consequences ... amount to genocide committed against Palestinians in Gaza”.
Kemp says SA sets out in an 84-page application “the factual and contextual contours of genocidal violence aimed at the Palestinian people (especially in Gaza). SA’s application alleges that Israel is in breach of its duty to stop genocide from occurring. SA also asks Israel to stop incitement to genocide and to prevent incitement to genocide from happening”.
The application provides several statements by Israeli officials and others, which SA says could be viewed as incitement to genocide.
SA’s application condemns Hamas’ violence but “argues Israel cannot be allowed to breach the Genocide Convention in response”, says Kemp.
The ICJ, the main resolution forum for UN member states, is separate from the International Criminal Court (ICC) and settles disputes between nations in terms of international law.
The ICC’s focus is on prosecuting and imprisoning individuals for international crimes, says Strydom. The ICJ, on the hand, “may consider remedies such as compensation or another non-criminal sanction which the nation state must then comply with.”
A successful application would have two important implications, Strydom says.
First, there will be “a ruling on the merits of the case, namely whether Israel has indeed been involved in acts amounting to genocide”. Secondly, SA wants “the ICJ to provide interim measures. These are intended to provide protection to civilians during the armed conflict.” SA believes there is “a significant risk that civilians will continue to be exposed to life-threatening circumstances given the nature of the Israeli offensive.
“The most important of SA’s requests is that Israel must immediately suspend its military operations in and against Gaza.”
If granted, but Israel rejects the ICJ ruling, “we have a problem of enforcement”, which would require approaching the UN Security Council. Even if the US, Israel’s main ally, vetoes subsequent UN sanctions, Kemp says, “one should not downplay the diplomatic and symbolic effect of an ICJ finding, and Israel is evidently concerned about that.”
In 2023, SA had its first judge elected to the ICJ — Prof Dire Tladi, whose terms starts in February.
