On 11-12 January 2024, the International Court of Justice (ICJ) will host proceedings to evaluate South Africa’s recent submission to the United Nations’ (UN) top court – a lawsuit claiming that Israel has committed crimes amounting to genocide against the Palestinian people. The South African government officially filed the claim on 29 December 2023, requesting “an expedited hearing for its request for the indication of provisional measures” and that “the Court should order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives”.^[1]

Officials and legal representatives from both countries will be present at The Hague to argue their cases. This report outlines the key takeaways from South Africa’s 84-page lawsuit, addressing the reasons for the country bringing this case to the ICJ, the grounds on which it has made its argument, and the remedies it seeks on behalf of the people of Palestine should the court reach a decision in its favor.  

Jurisdiction and Relevant International Law

South Africa’s central claim to the ICJ is that Israel’s operations in Gaza violate several articles of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’). In particular, the lawsuit cites the following:

1. failing to prevent genocide in violation of Article I;
2. committing genocide in violation of Article III (a);
3. conspiring to commit genocide in violation of Article III (b);
4. direct and public incitement to commit genocide in violation of Article III (c);
5. attempting to commit genocide in violation of Article III (d);
6. complicity in genocide in violation of Article III (e);
7. failing to punish genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, in violation of Articles I, III, IV and VI;
8. failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide, and complicity in genocide, in violation of Article V; and
9. failing to allow and/or directly or indirectly impeding the investigation by competent international bodies or fact-finding missions of genocidal acts committed against Palestinians in Gaza, including those Palestinians removed by Israeli State agents or forces to Israel, as a necessary and corollary obligation pursuant to Articles I, III, IV, V and VI.^[2]

With both countries being signatories of the Geneva Convention, South Africa is within its rights to submit complaints of violations of its articles to relevant international legal bodies. In this case it has opted to do so with the International Court of Justice, the highest court of the United Nations. In brief, the ICJ is tasked with settling legal disputes between states and giving advisory opinions on legal questions referred to it by the UN General Assembly, the UN Security Council, or other specialized UN agencies and bodies. On occasions such as this, it can also take on cases filed directly by one state against another, provided that both parties are UN members. South Africa contends that the ICJ holds jurisdiction over this case on the basis of Article 36, para 1, of the Statute of the Court and Article IX of the Genocide Convention. Article IX of Genocide Convention provides:

“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment 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.”^[3]

It should be noted that the decisions of the Court are binding to the parties involved, but cannot be directly enforced by it. Rulings can nonetheless be brought to the UN security council in an attempt to have them implemented. Irrespective of the enforceability of its decisions, the ICJ is widely recognised as an important institution. Its judgments carry weight due both to its existence as a revered forum for the peaceful settlement of international disputes, and to its status as a symbol of justice in the current global order.

South Africa’s Argument

The jurists behind the lawsuit begin the substantive portion of the case with an outline of its facts. They first provide the context behind the conflict, extensively tracing the long history of occupation the Palestinian people have suffered at the hands of Israeli authorities. Drawing from decades of official UN investigations, reports, statements, and resolutions, they highlight the terrible conditions under which generations Palestinians have lived: forced to leave their homes as Israeli forces increasingly seized their territory, prohibited from accessing the same rights to education, labour and healthcare as the Jewish population, and victimized by a legally enshrined system of discrimination that relegates them to second-class citizenship. In essence, South Africa argues, a system of apartheid. The South African lawyers also document the thousands of casualties Palestinian civilians – women and children especially – have suffered at the hands of the Israeli Defense Force long prior to the events of 7 October 2023.

With this context established, the lawsuit turns its attention to the conditions that have unfolded since 7 October 2023. South Africa is clear to unequivocally condemn Hamas’ attacks on that day, specifying that any such violence targeted toward civilians is unacceptable – both in terms of the murder of over 1,200 Israelis and the capture of another 240 as hostages. Its main contention is that the Israeli military response that followed was disproportionate in scale, and has indiscriminately and unjustly targeted Palestinian civilians. The annihilation not only of over 22,000 lives, but of Palestinians’ very way of being for generations to come, is the crime South Africa argues amounts to genocide.

For the ongoing military campaign in Gaza to be recognized as genocidal, the South African case aims to establish that it has been conducted in such a way as to bring about the total destruction of the Palestinian people. To that end, eight conditions that point to a conclusion of genocide are presented: 1) the killing of Palestinians in Gaza in large numbers; 2) the imposition of serious bodily and mental harm to Palestinian in Gaza, including children; 3) expulsions from homes and mass displacement, alongside the large-scale destruction of homes and residential areas; 4) deprivation of access to adequate food and water; 5) deprivation of access to adequate medical care; 6) deprivation of access to adequate shelter, clothes, hygiene and sanitation; 7) the destruction of the life of the Palestinian people in Gaza; and 8) imposing measures intended to prevent Palestinian births.^[4]

Extensive evidence, based primarily on UN special reports and investigations into the conflict, along with statements from leading international NGOs present in Gaza, is provided to substantiate these claims. The lawsuit addresses in great detail the destruction of thousands of Palestinian families and their homes, as well as institutions key to the functioning of Palestinian life. Among others, these include schools, hospitals, medical facilities, cultural and religious sites, and various bodies of governance. The lawsuit also places significant emphasis on the harm done to thousands of Palestinian children, whose lives have either been ended or completely uprooted at the hands of Israeli forces. According to the Executive Director of the United Nations International Children’s Emergency Fund (UNICEF), Gaza is “the most dangerous place in the world to be a child”.^[5] Given the scale of the carnage, any attempt to rebuild the fabric of civilian life in the region will take generations – a task that will unfortunately be left to the Palestinian children now scarred, mentally and physically, by this conflict.

A core element of the argument presented is that the actions of the Israeli military forces constitute collective punishment against the Palestinian people. South Africa cites that the vast majority of the casualties that have occurred are not of Hamas militants, but overwhelmingly of Palestinian civilians. The lawsuit identifies that, in a report from a fact-finding mission conducted in Gaza in 2009, UN officials determined that the actions of the Israeli military at the time repeatedly failed to distinguish between combatants and civilians, which is prohibited under international humanitarian law.^[6] South Africa argues that what is occurring today is an even more egregious case of this violation.

In fact, the South African jurists claim that recent statements from top Israeli politicians and military leaders indicate a clear and demonstrable punitive intent toward the Palestinian people as a whole. Take, for instance, the following statement by Israeli President Isaac Herzog in relation to Palestinians in Gaza, over one million of whom are children:

“It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware [and] not involved. It’s absolutely not true. … and we will fight until we break their backbone.”^[7]

In another alarming statement, Israeli Defence Minister Yoav Gallant announced that Israel would be “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.” He followed this by claiming that Israel had “removed every restriction” on its forces, and that “Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places”.^[8]

Taking all these elements together – the number of casualties, the scale of the destruction, and the apparent genocidal intent of top officials in its government – South Africa argues that Israel has satisfied the conditions necessary for the ICJ to reach the conclusion that it is guilty of committing genocide in Gaza. Over the coming days, the UN’s top court will carefully evaluate these claims, as well as Israel’s legal defense against it.

The Relief Sought

In concluding its lawsuit, South Africa requests that the ICJ adjudge and declare that the State of Israel has breached and continues to breach its obligations under the Geneva Convention. In its plea for urgent provisional measures, it seeks for the Court to call Israel to immediately cease its military onslaught in Gaza to the extent that it contributes to the genocide of the Palestinian people. South Africa also requests that the ICJ demand assurances from Israel of “guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI”.^[9]

What to Expect Next

South Africa and Israel will each argue their cases at The Hague on 11-12 January 2024. The ICJ typically takes one to two weeks to issue a decision on emergency measures such as this, though it is unclear for how long this particular case will be adjudicated. While any ruling it provides cannot ultimately be enforced, a verdict against Israel would prove a significant development in this situation, inflicting substantial harm to the country's reputation, and possibly prompting a reassessment of its military approach in response to widespread international condemnation. GICJ staff will be present at The Hague for the hearings, and will report on significant developments regarding the case as they come.

Geneva International Centre for Justice (GICJ) has for years closely documented the suffering of the Palestinian people at the hands of the occupying power that is Israel, and has repeatedly brought human rights violations in the region to the attention of UN human rights bodies, in particular the Human Rights Council. GICJ supports the use of international bodies of justice like the ICJ in seeking an end to the impunity of perpetrators of international crimes. It continues to emphasise the importance of pursuing such mechanisms of redress to acknowledge the hardships faced by the Palestinian people in their search for recognition of their plight. GICJ denounces acts committed against civilians in Gaza and urges the global community to explore further legal and diplomatic solutions to the conflict.

Read more from GICJ:

Palestine, ICJ, South Africa, Israel, Gaza, occupation, ethnic cleansing, refugees, displaced persons, accountability, Geneva International Centre for Justice

[1] https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf, p. 3

[2] Ibid., 71.

[3] Ibid., 75.

[4] Ibid., 30.

[5] Ibid., 31.

[6] Ibid., 19.

[7] Ibid., 60.

[8] Ibid..

[9] Ibid., 72.