Many would agree that the Palestinian people who reside in the territories occupied by Jewish Israelis are among the most oppressed people in the world.
In February 2022, Amnesty International released a 280-page report titled, “Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity”. The report found that “since its establishment in 1948, Israel has pursued an explicit policy of establishing and maintaining a Jewish demographic hegemony and maximising its control over land to benefit Jewish Israelis, while minimising the number of Palestinians and restricting their rights and obstructing their ability to challenge this dispossession.”
Similarly, in a report to the UN General Assembly dated 25 October 2023 on the Israeli settlement activities in the Occupied Palestinian Territories, the UN Secretary-General found that “[o]ver 56 years of Israeli military occupation of the Occupied Palestinian Territory – the West Bank, including East Jerusalem, and Gaza – and continued expansion of settlements over Palestinian land severely affect a wide range of rights of the Palestinian people, including the right to self-determination.”
Against this backdrop, on 7 October 2023, the world watched in horror as the military wing of Hamas, a Palestinian Islamist movement listed as a terrorist organisation by the United Nations, launched an indiscriminate surprise attack on Israel, which saw about 1,200 Israelis and foreign nationals killed.
Since this attack, the Israeli government declared war against Hamas and launched a military assault in Gaza which, according to the Palestinian Health Ministry, has seen more than 21,110 Palestinians killed to date – 70% of whom are believed to be women and children.
Following these attacks in the Gaza Strip, on 29 December 2023, South Africa filed an application before the International Court of Justice (ICJ) instituting proceedings against the state of Israel.
In the application, South Africa alleges Israel has committed acts of genocide against the people of Palestine in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
South Africa’s application to the ICJ has been widely celebrated here at home and abroad. However, and as with most legal developments, very few people have a decent grasp of what the application entails or the process to unfold pursuant to its filing.
The legal intricacies
Considering the wide public interest this matter has garnered, I thought it apt to attempt to provide some clarity on some of the legal intricacies.
The ICJ, headquartered in The Hague, is the principal judicial organ of the United Nations and is established in terms of Article 92 of the UN Charter, read with the Statute of the ICJ. Only sovereign state actors can be parties in cases before the ICJ.
The UN Charter provides that all member states of the UN are deemed to be parties to the Statute of the ICJ, meaning that all UN member states can bring a dispute before the ICJ for alleged violations of international law. Both South Africa and Israel are members of the United Nations and therefore parties to the Statute of the ICJ.
In the application before the ICJ, South Africa argues that since the events of 7 October 2023: “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention”.
In particular, South Africa claims, among other things, that Israel has engaged in and failed to prevent the killing of Palestinians in Gaza; has caused the forced evacuation and displacement of around 85% of the Palestinians in Gaza; has destroyed Palestinian life in Gaza; imposed measures intended to prevent Palestinian birth in Gaza.
These acts and omissions by Israel, South Africa argues, are genocidal in nature and therefore violate the Genocide Convention.
Notwithstanding these charges against Israel, South Africa submits as part of its application that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.”
Treaties and Conventions under international law, which are for all intents and purposes agreements between state actors, are only binding upon the state parties who are signatories to them. Both South Africa and Israel are party to the Genocide Convention and, as such, both are bound by it.
The ICJ, in terms of Article 9 of the Genocide Convention, has jurisdiction over any dispute concerning the convention. The ICJ therefore has jurisdiction to hear South Africa’s application that Israel has committed acts of genocide in Gaza.
It is for this reason that the Israeli government has publicly indicated that it will defend itself at the ICJ against South Africa’s charge of genocide.
The relief sought by South Africa in its application is a declarator to the effect that Israel has committed acts of genocide in Gaza and for the ICJ to instruct Israel to cease committing these acts of genocide.
South Africa further seeks an order for Israel to perform the obligations of reparations in the interest of Palestinian victims, together with an assurance from Israel of non-repetition of violation of the Genocide Convention. This is the main application.
Pending the ICJ’s determination of the main application, South Africa has also urgently sought provisional measures in terms of Article 41 of the Statute of the ICJ to protect the Palestinians’ rights invoked in the main application from imminent and irreparable loss.
The provisional measures sought by South Africa include an order by the ICJ that “Israel shall immediately suspend its military operations in and against Gaza” and “ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.
The provisional measures application will be heard before and separately from the main application. The application is set down for oral argument on 11 and 12 January at The Hague.
To my understanding, no hearing date has been set as of yet for the main application.
ICJ hearings are public unless the court decides otherwise or one of the parties demand the hearing to be private. There is no indication that this hearing will not be public.
Judgment
Following oral arguments, the ICJ judges will deliberate in private and provide a judgment when ready. Judgments of the ICJ are final and are without appeal. If previous practice is any indication, the ICJ should deliver judgment on the provisional measures application in a week or so after the hearing.
Article 94 of the UN Charter provides that each member state “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”.
This means both South Africa and Israel are bound by whatever decision the ICJ makes in respect of the application.
In the past, some state actors who had adverse findings made against them by the ICJ, simply ignored the ICJ’s binding orders.
For example, on 26 February 2022, Ukraine filed an application in the ICJ against Russia for violation of the Genocide Convention for its invasion of Ukraine, which also included a request for provisional measures.
On 16 March 2022, the ICJ made a finding on the provisional measures sought by Ukraine and ordered Russia “[to]immediately suspend the military operations that it commenced on 24 February 2020 in the territory of Ukraine”. Russia has ignored this order.
Article 94 further provides measures in the event that state actors ignore the ICJ’s orders in that the aggrieved party may approach the UN Security Council for recourse, which may “make recommendations or decide upon measures to be taken to give effect to the judgment.”
Veto powers
The permanent member states of the UN Security Council — China, France, Russia, the United Kingdom and the United States — have veto powers.
This means should the ICJ find against Israel and Israel fails to perform its obligations provided in the ICJ order, any recourse by South Africa to the Security Council in terms of Article 94 would have to be supported by at least all the permanent member states.
However, there is a long history of vetoes by the United States of UN Security Council draft resolutions to protect Israel.
On 26 October 2023, Al Jazeera reported that since 1945, a total of 36 UN Security Council draft resolutions have been vetoed by the five permanent member states relating to Israel-Palestine, of which 34 were vetoed by the United States.
The most recent of these United States’ vetoes came on 18 October 2023, where it blocked a UN Security Council draft resolution calling for a pause in the current Israel-Palestine violence to allow for humanitarian assistance in Gaza.
Whether the ICJ will find in favour of South Africa – and if it does, whether Israel will comply with the order of the ICJ in honour of its international law obligations, or its compliance would have to be forced by the UN Security Council (the United States willing) – remains to be seen.
Regardless of how the case eventually pans out, using social media as the metric for measurement, the South African government’s decision to institute these proceedings seems to enjoy wide public support.
Unsurprisingly, the Israeli government, through its spokesperson Eylon Levy, has labelled South Africa’s application as “blood libel” and accused the country of having “made itself criminally complicit with Hamas’ campaign of genocide”.
The statement goes on to say that “history will judge South Africa for abetting the modern heirs of the Nazis.” DM
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This judgement carries a stigma and isolation, having seen the accusations and have listen to genocidal statements I can stop short of preemptively foresee the ruling, this is not an ANC mandate but a government mandate on behalf of all who value human life and this will go down in the books of history, already France and other European countries say they will abide by the ruling the foresight is clear here, America likes to sleep walk into wars and judging by the red sea coalition against the Houthi’s allies refused to commit that says a lot, we might underestimate these international bodies but it was actions from independent states that contributed to our liberation hence today we are on DM commenting and we don’t have to look behind our backs tomorrow
I will support the SA government in their application if they publicly condemn Russia for ignoring the ICJ judgrment against them. Otherwise it remains selective judgment and hypocracy. Furthermore, the SA government ignored a standing order of the ICJ in the Omar-Al-Bashir case (or whatever the bloke’s name is). My point is that, while I also hope and seek for some remedy to stop the bloodshed in Gaza, is that the SA government has no moral standing to be the advocate for seeking this.
I applaud the move. South Africa’s struggle against apartheid and the country’s ridding of that heinous system add strongly to the moral argument behind this decision. Also significant is the fact that SA is not an Islamic/Muslim majority country which means that the colonial argument of the issue being a Jewish vs Muslim issue falls flat. Israeli state wants the world to think that this is a religious issue when in reality, it is settler colonialism manifested in its ugliest form. South Africa has done the right thing and as with all acts that challenge tyranny, we must be prepared for backlash. But then we have the glorious legacy of not being afraid to stand against apartheid – in southern Africa and beyond!
While openly supporting Russia.
Yes, the world is picking sides and South Africa is picking Iran and Putin who dont have investments in South Africa. Meanwhile our tradtional partners are runing for the exits. South Africa has its own major problems to overcome. SA is imploding and we are playing games in the middle east.
What a load of BS! “Playing games in the Middle East”… There is man murder going on there, Bibi clearly instructed his military to ensure that the population in Gaza shall be reduced to the lowest possible, Smotrich and Ben-Gvir are openly calling for the forced removal of Palestinians from Gaza. In Westbank – the settlers are doing their best to install fear in the Palestinian population – shooting civilians under the protection of the IDF.
Yes – the SA Government should have opposed Russia’s invasion of Ukraine. But that doesn’t mean it should shut up in the face of the ongoing genocide!
Those who do not protest the atrocities committed by the IDF (they even kill their own – when the shout in Hebrew, are half naked and wave a white flag!! I wonder how many Palestinians carrying white flags they have murdered – and which will never be reported) are by definition also guilty of the IDF’s crimes! No excuses…
Hahahahaha – keep drinking the koolaid
I have to say I am distinctly surprised to find myself agreeing with an action by the ANC, but here there is merit in their approach; which is diametrically opposed to its flaccid response to Russian colonial wars. I expect that if the court grants the order, the US will veto it, and the Israeli government will ignore it.
The slaughter in Gaza and the continuing repression in the West Bank and elsewhere, marks the end of the Zionist dream. From now on they have bulldozed their claim to special consideration as survivors of the pogroms and the holocaust, which they are still trying very hard to play on with references to the blood libel and Nazis. Netanyahu’s government I fear invites comparisons with Assad’s or the German occupation of Poland.
Israel seems not however to be beyond redemption, given that apparently only 15% want Netanyahu to stay in power, and their supreme court has struck down his attempt at a legal coup.
The big unanswered question now is: what happens at the end of the war; and will Israel pay to rebuild and pay reparations?
Also if order is granted the Israeli public will be shocked , because their news channels are not covering what the rest of the world is viewing. They under impression majority killed are Hamas fighters and Israel is facilitating full access of humanitarian aid and any shortage of aid is due to UN .
Israel is a democracy, they have a open media system there and they can also use the internet. They know what is happening.
Actually that is a silly remark. Israel isn’t Russia and has the most tech litetate population in the world. I think they have heard of the internet
Israel a democracy? Since when? Democratic rights are only accorded to Jewish Israelis – Palestinians have no rights. They have been oppressed ever since 1948 – it is much worse than what Apartheid did here in our country!
You are an absolute bigot. Study history a bit further back than yesterday and perhaps your one sided remarks will stop. The ANC did not utter one word condemning Hamas as terrorist on their attack of 7 October. Nobody mentions the many attacks Israeli’s suffered earlier from Hamas. There are another side to this war that you don’t mention. The IDF does not hide under the skirts of innocent mothers and children.
what absolute garbage
Sydney – do you think average South Africans (or Israelis) read Daily Maverick, watch Al Jazeera or BBC, CNN?
Certainly not – you watch ‘your own’ channels – and in Israel they do so as well – and hardly know that civilians are being mass-murdered in Gaza by “the most moral Army in the World”!!
Oh bollocks
Just because our government has failed to condemn other occupations by its political and economic allies in Ukraine and Tibet doesn’t mean that this action does not have value. The symbolic defines our species and this action reminds us what it is to be human, and what compassion and solidarity look like. I’m also fascinated that the case against Russia was brought by The Gambia. And even if Israel lifts a finger to the court, because it’s just that vulgar, at least we can tell our children that we said something.
The case against Russia was brought by Ukraine. Gambia initiated a case against Myanmar.
Apropos, Israel’s legal representative, Prof Shaw KC, also defended Serbia against Bosnia on the same charge of genocide, and lost.
Your response tells you everything about how legal shenanigans performed by ‘lawyers/attorneys/advocates/KC etc’ work … they have no scruples about ethics surrounding the issue … their handsome ‘lining of their pockets’ … being the bottom line ! A friend once used an expression to describe an ‘ugly’ individual we both knew thus … ” He would sell his mother for money !”
I want to tell my children that us a country and a people South Africa and their leaders are consistently and without fail against all forms of crimes against humanity and actions resulting in bloodshed of innocent people, especially the vulnerable like women, children, the elderly, and the sick. That stance should reflect in our international relations policies as well as our domestic values and culture. We cannot be sometimes be that and sometimes not when it is convenenient. These are matters of principle. Do I support the basis of the application? Yes. Do I support it coming from hypocrates? No. I do not want to confuse my children.
Well spoken ! As for hypocrisy … it abounds in many places in varied guises … often in the form of ‘whataboutism’.
Except they’re not as their outrage is selective. The SA Government openly supports brutal dictators, murderers and genocidal maniacs. This is a sad election ploy from the anc and just exposes their hypocrisy. I sincerely hope they get completely trashed and embarrassed on this international stage and shown up for the despots, thieves and hypocrites that they are
It’s obvious
There are 2 scenarios. ‘Who you are’ and ‘what you have done’. Genocide is the killing, or wanting to kill based on ‘who you are’ NOT ‘what you have done’. Namely Hamas stating they want to obliterate the Jews – a ‘who you are’ scenario. Israel’s actions are based on a ‘what you have done’ scenario – a response to Hamas killing 1400 Jews – because of ‘who they are’. Israel has nothing against the Palestinians other than their Hamas support. Russia attacked Ukraine on a ‘who you are’ basis: Ukranians Nazis etc. The Ukraine + west responded on a ‘what you have done’ basis. WWII: Germany attacked Poland, not because of anything the Poles had done (no ‘what you have done’) but because they occupied land German wanted – ‘a who you are’. When Britain bombed Germany in WWII, it was to obliterate the German war machine – munitions factories deliberately targeted (same as Israelis attempt to root out Hamas) – a ‘what you have done’. That thousands of German civilians were killed in this process does not constitute genocide by Britain. The US dropped the H bombs on Japan, not because they wanted to obliterate the Japanese, (they fell in love with them after the war!) but because they wanted to stop the Japanese military – a ‘what you have done’.
So, a charge of genocide against Israel must fail – technically. HOWEVER, If SA had avoided the term genocide, and rather charged Israel with irresponsible killing of Palestinian civilians, they may well have a point.
In 2002, Saudi Arabia proposed the Arab Peace Initiative – which was endorsed unanimously at a summit meeting of the Arab League in Beirut. Israel rejected it.
Arafat wanted to talk peace. He was murdered by …?
A few years ago Sinwar (Hamas leader) proposed a long-term Hudna (cease-fire) to Israel – so that the “problem solving” could be left to a future generation and the present generations could move forward to a peaceful and cooperative stance. Israel refused.
Israel simply has no interest in allowing the longtime inhabitants of Palestine to live in peace in their own land.
Rubbish
Israel’s actions against the Palestinians for more than 75 years are on the basis of ‘who you are’. It is absurd to pretend that this stuff started on Oct. 7.
n outright blatant lie
A quick response:
By quoting Amnesty International UN reports labels your article in advance for what it is (another supposedly unbiased opinion dripping with preconceived bias) as does your opening remark . “Many would agree that the Palestinian people who reside in the territories occupied by Jewish Israelis are among the most oppressed people in the world.”.
The whole case rests on convincing the court that the alledged acts and events which occurred in the eourse of the war would necessarily lead to genocide as properly defined , and most importantly that there was an intent, to do so which is contradicted by the facts.
The provisional measures sought by South Africa that “Israel shall immediately suspend its military operations in and against Gaza” will either not be given or will be ignored since no state can be deprived of its right to self defence and an order “to endure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide” would be trite since Israel would say that it does in any case comply.
The whole exercise could be characterized as a stunt to distract from the ANC disaster we have at home since as the writer concedes any order that Israel sees as against its existential will be ignored and carries no weight without endorsement by the UNSC which would be vetoed by the US. The ICJ loses credibility every time it allows itself to be used to score political points.
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