US intervenes to defend Israel in SA's genocide case at the ICJ

The United States (US), Namibia, Hungary, and Fiji have filed declarations of intervention in South Africa’s case of genocide against Israel at the International Court of Justice (ICJ), the United Nations’ (UN) top court, in The Hague.

Their declarations to intervene in the case come after both the Netherlands and Iceland filed declarations of intervention in South Africa’s case earlier this week.

They also come more than two years after South Africa brought its 84-page lawsuit before the World Court in December 2023, accusing Israel of genocide in its war in Gaza and seeking to stop its military assault on the region.

South Africa’s case alleges that Israel has committed genocidal acts in Gaza, in violation of the 1948 Genocide Convention. (Both SA and Israel are signatories to the convention, and any state that is party to it can bring a case before the ICJ, so SA was able to do this even though it is not directly involved in the conflict.)

Israel has dismissed the case as “lacking a factual and legal basis”.

Read more

Genocide case at ICJ: South Africa's arguments against Israel unpacked

January 9, 2024

The US, Namibia, Hungary, and Fiji filed their statements on Thursday, 12 March, under Article 63 of the Statute of the Court, which allows countries to intervene in cases involving the interpretation of a convention to which they are parties, even if they are not parties to the dispute.

In its 11-page declaration, filed to the World Court, the US rejected South Africa’s accusations of genocide against Israel.

“To avoid any doubt, the United States affirms, in the strongest terms possible, that the allegations of ‘genocide’ against Israel are false. They are also unfortunately nothing new,” it said.

The US said it considered it necessary to intervene in this case in order to offer its interpretations of the provisions of the Genocide Convention, informed by its role in drafting the 1948 text.

The interventions of these countries bring the total number of countries seeking to participate in the proceedings to 22. Other countries include Spain, Mexico, Belgium and Ireland, among others.

Israel is also expected to file its counter-memorial, or arguments in response to South Africa’s substantive charge of genocide against it, on Friday, 13 March. This is after SA filed its memorial, containing more than 750 pages of evidence, to the ICJ in October 2024.

The court previously granted Israel several extensions for the filing of its counter-memorial, the latest deadline being Thursday, 12 March.

At a press conference in Pretoria on Wednesday, South Africa’s Department of International Relations and Cooperation (Dirco) spokesperson, Chrispin Phiri, said it was understood that Israel was scheduled to file its papers on Friday.

The submission of its counter-memorial is the next step in a lengthy court process that could take years before a final judgment is handed down.

‘Amount to acts of genocide’

More than 72,000 Palestinians have been killed since Israel’s war on Gaza began in October 2023, after the Hamas-led attack on Israel. However, a recent study, published in the Lancet Global Health medical journal, has put the death toll at much higher – finding that more than 75,000 Palestinians were killed in the first 16 months of the war, between 7 October 2023 and 5 January 2025.

The Guardian reported that the research also found that the Gaza Health Ministry’s reporting about the proportion of women, children and elderly people among those killed was accurate.

In January, Israeli officials accepted that the figures compiled by health authorities in Gaza were broadly accurate, after repeatedly disputing the data.

Despite a US-brokered “ceasefire” that came into effect in October last year, Israeli attacks on Gaza have continued, killing more than 600 people since the “ceasefire” began, according to a report from Al Jazeera.

Many Palestinians are still living in tents, with 80% of the buildings in the Gaza Strip having been damaged or destroyed, according to the UN.

The Netherlands’ declaration of intervention makes submissions on the interpretation of the Genocide Convention in relation to forced displacement, acts committed against children, the scope and substance of the obligation of third states to prevent genocide, and starvation and the deliberate withholding of humanitarian aid.

In its declaration, it contends that forced displacement and the withholding of humanitarian aid may, depending on the facts, lead or amount to acts of genocide under the convention.

“In this regard, the Netherlands will argue that 1) forced displacement may lead to or inflict serious mental or bodily harm as prohibited by Article II(b) of the Genocide Convention; 2) forced displacement may lead or amount to the infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part in the sense of Article II(c) of the Genocide Convention, which covers methods of physical destruction other than killing; and 3) in addition to leading or amounting to the underlying acts of genocide, forced displacement may also constitute evidence of specific intent,” read its filing.

It added: “[The] Netherlands will argue that 1) starvation or the deliberate withholding of humanitarian aid may result in the death of members of the group and may amount to the prohibited act of killing under Article II(a) of the Genocide Convention; 2) starvation or the deliberate withholding of humanitarian aid may lead to or inflict serious mental or bodily harm as prohibited by Article II(b) of the Genocide Convention, and 3) such acts may amount to the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part in the sense of Article II(c) of the Genocide Convention.”

The Dutch newspaper Trouw reported genocide scholar at Utrecht University, Iva Vukušić, as saying the Netherlands’ intervention could support SA’s case, particularly in paragraphs where the country sets out arguments for why forced displacement and starvation could be regarded as acts of genocide.

Iceland, in its own submission, argues that the Genocide Convention must be interpreted in a manner that supports its objective of preventing and punishing genocide.

“Iceland emphasises that its must be interpreted individually, and inter se, in a manner that serves the attainment of the express objective of effectuating the prevention and punishment of the crime of genocide, irrespective of where or by whom it is committed,” read its application.

Israel’s counter-memorial

A report from the Jerusalem Post on Friday morning, suggested that the submission of Israel’s counter-memorial would probably be delayed due to the US-Israeli war with Iran and the escalating conflict in the Middle East.

A counter-memorial, according to the rules of the court, contains “an admission or denial of the facts stated in the memorial; any additional facts, if necessary; observations concerning the statement of law in the memorial; a statement of law in answer thereto; and the submissions”.

Daily Maverick contacted the International Court of Justice for comment on the status of Israel’s filing, but had not received a response by the time of publication.

In an interview with Daily Maverick on Thursday morning, Southern Africa Litigation Centre’s international justice cluster lead, Dr Atilla Kisla, said: “Israel’s counter-memorial is the central opportunity to, from their point of view, dismantle SA’s submissions on both facts and the law, and take apart their arguments.

“We know that SA’s memorial submits that the conduct by Israel falls under the punishable acts under the Genocide Convention and that Israel acted with the necessary genocidal intent, meaning that it committed genocide. Israel will probably respond to SA’s memorial on multiple levels,” he said.

Asked whether the US-brokered “ceasefire” had any ramifications for the court proceedings, Kisla said that although developments on the ground could influence the political narrative, “they cannot change the legal framework and the facts that are before the International Court of Justice. The court is assessing whether obligations under the Genocide Convention have been breached, and that analysis focuses on the conduct and intent during the relevant period.

“Israel may nonetheless argue that the changed circumstances, for instance, demonstrate that the situation is evolving and that the legal case has been overtaken by diplomatic developments. But such arguments usually carry very limited weight in the merits phase and for the court’s assessment because they do not eradicate now what happened before that, and that conduct is still in question and must be legally adjudicated,” he said.

The filing of the counter-memorial is the next step in the writing proceedings. According to Kisla, the ICJ usually asks for two rounds of written proceedings in contentious cases.

“After this counter-memorial the court may authorise a reply by SA, addressing Israel’s arguments in their counter-memorial, and then Israel can respond in the form of a rejoinder. These exchanges allow each side to clarify the factual record of their submissions and address the legal arguments in more detail.

“Only after the written proceedings are completed will the court move onto oral hearings, which will again be in The Hague, where the legal teams will present arguments and answer questions from the judges if there are any,” he said. DM

This article was updated at 3pm on Friday, 13 March, to include the declarations of the US, Namibia, Hungary and Fiji.