On December 29, 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ), accusing Israel of genocide in its war on Gaza and seeking to halt its attack on the enclave, pending the court’s final decision on whether Israel is perpetrating genocide.

Oral arguments by South Africa were heard on Thursday, 11 January and the response by Israel was heard on Friday, 12 January.

South Africa’s legal team argued that Israel had perpetrated the mass killings of Palestinians, inflicted serious mental and bodily harm on the people in Gaza, forced displacement, food and aid blockages, and crippled Gaza’s healthcare system. 

Read more in Daily Maverick: ‘Nothing will stop this suffering, except an order from this court’ — SA sets out the evidence against Israel

Israel’s legal team argued that its actions were in self-defence against Hamas’s attack on 7 October, that intent to commit genocide against the people of Gaza was not government policy, and that the ICJ did not have jurisdiction over the matter.

Read more in Daily Maverick: Israel asks the ICJ to throw out SA’s ‘curated and inaccurate’ genocide case

Aid agencies and solidarity campaigns welcome hearing

UN human rights experts welcomed the hearings and reiterated the call for a ceasefire.

“We commend South Africa for bringing this case to the ICJ at a time when the rights of Palestinians in Gaza are being violated with impunity. We call on all States to cooperate with the Court as it interprets the Genocide Convention and to respect the role of the ICJ as an independent court of law,” said the group of more than 30 UN experts.

South Africa’s oral argument on Thursday cited numerous statements by UN Special Procedures mandate holders, including the experts’ repeated calls for international action to prevent genocide in Gaza.

Ronald Lamola (centre), Minister of Justice of South Africa, and Vusimuzi Madonsela (right), South African Ambassador to the Netherlands, at the International Court of Justice before the hearing of the genocide case brought by South Africa against Israel in The Hauge, The Netherlands on 11 January 2024. (Photo: EPA-EFE / Remko de Waal)

On 16 November 2023, a group of UN experts warned of a “genocide in the making” in the Occupied Palestinian Territories and particularly in Gaza.

The experts further called for immediate action to ensure the unimpeded delivery of desperately needed humanitarian aid to people in Gaza, especially for the sick or injured, persons with disabilities, older persons, pregnant women and children.

Amnesty International said the case could help protect Palestinian civilians, end the humanitarian catastrophe in Gaza, and offer a glimmer of hope for international justice. Although the organisation has not determined that the situation in Gaza amounts to genocide, it points to alarming warning signs given the staggering scale of death and destruction. 

“In just three months, 23,000 Palestinians have been killed in Gaza and a further 10,000 are missing under the rubble, presumed dead. There has also been an appalling spike in dehumanising and racist rhetoric against Palestinians by various Israeli government and military officials. In addition, Israel’s imposition of an illegal siege in Gaza — which has cut off or severely restricted the civilian population’s access to water, food, medical assistance, and fuel —is inflicting unfathomable levels of suffering and putting the survival of people in Gaza at risk,” read Amnesty International’s statement. 

“There is no end in sight to the mass human suffering, devastation, and destruction we are witnessing on an hourly basis in Gaza. The risk that Gaza would be transformed from the world’s biggest open-air prison to a giant graveyard has, crushingly, materialised right before our eyes,” said Agnès Callamard, Secretary General of Amnesty International.

Callamard said it was difficult to overstate the scale of the devastation and destruction that has been wrought in Gaza over the past three months, with much of northern Gaza being destroyed and at least 85% of Gaza’s population now internally displaced.

“Many Palestinians and human rights experts see this as part of an Israeli strategy to render Gaza ‘unlivable’. This has been coupled with disturbing statements from certain Israeli officials advocating for the unlawful deportation or forcible transfer of Palestinians outside Gaza and abhorrent use of dehumanising rhetoric,” said Callamard.

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The Palestine Solidarity Campaign (PSC) said it was pleased that South Africa had acted to protect the Palestinians in Gaza from the ongoing genocide. 

“South Africa’s action against Israel arises directly from our experience in establishing a democracy in place of apartheid. The first democratic president of South Africa, Nelson Mandela, famously said that South Africa will not be free till the Palestinians are free,” said the PSC. 

Scholars and practitioners of international law, genocide studies, international studies and fields relating to global justice have also voiced their support for South Africa’s application.  

“South Africa’s submission provides an opportunity to adjudicate the highly charged debates regarding Israel’s ongoing genocide in Gaza within a legal framework in front of the ICJ, upholding the aspiration for universal justice. In this spirit, we reiterate our support for South Africa’s submission to the ICJ as a clear demand to the international community to prioritise accountability, end genocide, reject impunity, and uphold human rights for all,” read the statement from scholars, which has more than 1,000 signatories. 

Unprecedented figures

Human Rights Watch (HRW) released its World Report 2024 last week, which said civilians in Gaza have been “targeted, attacked, abused, and killed over the past year at a scale unprecedented in the recent history of Israel and Palestine”.

At least 23,469 Palestinians have been killed and 59,604 injured in Israeli strikes on Gaza since 7 October, according to Gaza’s Ministry of Health. 

In its report, HRW noted that Israel’s war on Gaza has included “acts of collective punishment that amount to war crimes and include the use of starvation as a method of warfare”, including cutting off essential services such as water and electricity and blocking the entry of most critical humanitarian aid.

Save the Children said at least 10,000 children – or one percent of the total child population on the Strip – have been killed.

Palestinian sympathisers at a demonstration in The Hague, The Netherlands, held simultaneously with the genocide case brought by South Africa against Israel at the International Court of Justice on 11 January 2024. (Photo: EPA-EFE / Robin Utrecht)

Jason Lee, Save the Children’s country director for Palestine, described the situation in Gaza as “monstrous” and a “blight on our common humanity”.

“For nearly 100 days, children have been paying the price for a conflict they have no part in. They are terrified, hurt, maimed, displaced. One percent of the child population of Gaza has already been killed by Israeli bombardments and ground operations. Others risk being killed by starvation and disease with famine coming ever closer.  For children who have survived, the mental harm inflicted and the utter devastation of infrastructure including homes, schools, and hospitals have decimated their futures,” said Lee. 

Galit Raguan, the acting director of the International Justice Division of Israel’s Office of the Deputy Attorney General, said on Friday that Hamas was responsible for the high civilian toll in Gaza due to their strategy of embedding itself “among the civilian population”, pointing to attacks by Hamas that she said took place from schools, hospitals, and other civilian areas. Raguan said Israel had not bombed hospitals, but that damage and harm had occurred as a “result of hostilities” in the “vicinity” of hospitals. 

Healthcare must be protected and respected, says WHO director

During a media briefing on 10 January 2024, World Health Organization (WHO) Director-General Tedros Adhanom Ghebreyesus said the situation was indescribable in Gaza. 

“Only 15 hospitals are functioning even partially. The lack of clean water and sanitation, and overcrowded living conditions are creating the ideal environment for diseases to spread,” said Ghebreyesus. 

Arguing for Israel at the ICJ, Omri Sender said Israel had ensured humanitarian aid entered Gaza and that there had been no restriction on the amount of water that may enter the Gaza Strip. Sender also said food trucks had been able to enter the strip and the sick and injured had been allowed to cross into Egypt.

However, according to Ghebreyesus, intense bombardment, restrictions on movement, fuel shortages, and interrupted communications make it difficult to deliver humanitarian aid in Gaza. The WHO has had to cancel seven planned missions to northern Gaza since 26th December, said Ghebreyesus.

“We have the supplies, the teams, and the plans in place. What we don’t have is access,” he said. 

Ghebreyesus called on all sides to protect healthcare, per their obligations under international humanitarian law.

“Healthcare must always be protected and respected; it cannot be attacked and it cannot be militarised,” he said.

Healthcare Workers for Palestine South Africa commended the South African government on initiating a landmark case of genocide against Israel in its military assault on Gazans.

“Over 300 healthcare workers have been targeted and killed, and more than 100 have been arrested. Thirty hospitals, 53 healthcare centres and 121 ambulances are out of service with the remaining facilities functioning at partial capacity with immense patient loads,” read a statement from the organisation. 

“The entry of fuel, medicines, water, and food is restricted by Israel as a deliberate weapon of war, further exacerbating the healthcare crisis through the spread of communicable diseases and malnutrition”. 

The organisation said that numerous United Nations council meetings and resolutions calling for an immediate ceasefire to prevent civilian deaths have failed within the 97-day period, making this legal action by South Africa necessary.

Caitlin Le Roith from South African Jews for a Free Palestine (SAJFP) said the Israeli team did not seem to be as concerned with providing evidence for their submissions, basing their defence on procedural technicalities, previously debunked claims, and calling into question South Africa’s motives for bringing the case.

“As SAJFP, we hope that the Court will be guided by a commitment to human rights, the pursuit of justice for all, and fulfilling the call of ‘never again, to anyone’. As Jews, we are deeply offended when the pain and trauma of our ancestors and the real threat of antisemitism are weaponised and instrumentalised in an attempt to shield the state of Israel from accountability for its crimes, which we witnessed a lot of during the oral submissions by Israel’s legal team.

“In the context of this absurd discourse and our commitment to ensuring that ‘never again’ actually means ‘never again’, we applaud the principled stance that South Africa has taken in bringing Israel before the ICJ and wish to convey our deep appreciation to our legal team for representing us so excellently in this historic case.”

What happens next?

Israel has asked the ICJ to deny all of South Africa’s six requests for immediate preventive measures, including the end of military operations, the extension of proper humanitarian assistance, and the right to birth assistance for Palestinian mothers.

South Africa has asked the court to order the preservation and prevention measures in 10 to 14 days. A provisional ruling is expected within weeks, while a final ruling may take several years. DM