ICJ hearing: Blinne Ni Ghralaigh KC for South Africa. Press button to watch video..

On 28^th December 2023, South Africa submitted an application to the International Court of Justice (ICJ). The application accuses Israel of crimes of genocide against Palestinians in the Gaza Strip in breach of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’).¹

In its 84 page application, South Africa described Israel’s actions in Gaza as “genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”.

The Genocide Convention

This is consistent with the Genocide Convention which defines genocide as committing one or more acts with the intention to destroy, in whole or in part, a national, ethnic, racial or religious group.

Such acts include:

• Killing or causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group.

South Africa’s application to the ICJ follows almost three months of relentless bombing and military operations by the Israeli Defense Forces (IDF) in Gaza. According to the South African delegation, this bombing has been the most destructive in modern times.

Between Hamas’ attacks on 7^th October 2023 and ICJ’s initial hearing on 11th January 2024, the IDF has been responsible for the deaths of 23,210 Palestinians. Of these deaths, 70% were women and children. Another 7,000 Palestinians are missing, presumed dead under the rubble. Around 85% of the population, or 1.9 million people, have been displaced. An estimated 350,00 Palestinian homes have either been destroyed or damaged, leaving half a million Palestinians with no home to return to. At a time of immense medical need, two thirds of Gaza’s hospitals have been forced to close.

Israel’s deliberate use of starvation as a war weapon, along with the growing spread of disease amongst the forcibly displaced population, are now contributing to the horrific casualty toll in the Gaza Strip.

South Africa’s request for provisional measures

In light of the humanitarian catastrophe unfolding in Gaza, South Africa has requested the ICJ to issue nine provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”

It should be noted that the issuing of provisional measures by the ICJ will not constitute a ruling on the merits of the case initiated by South Africa. Rather, the issuing of such measures can be likened to restraining orders for the duration of the case that could take a few years to determine.

In relation to the Genocide Convention and the 2.3 million Palestinians in Gaza, the nine provisional measures requested by South Africa are as follows:

• Israel to immediately suspend its military operations in and against Gaza
• Israel to ensure that allied parties under its control or influence do not undertake military operations referred to in point (1) above
• South Africa and Israel to do everything in their power to prevent genocidal acts
• Israel to desist from killing, injuring, destroying life and preventing births
• Israel to prevent displacement, deprivation and the destruction of life
• Israel to desist from incitement, and punish acts of and encouragement to genocide
• Israel to prevent the destruction of and ensure the preservation of evidence
• Israel to submit ongoing reports to the Court on measures taken in support of the above measures
• Israel to refrain from aggravating the situation.²

Public hearings

In response to South Africa’s request, public hearings were held in The Hague, Netherlands on Thursday 11th and Friday 12th January 2024. South Africa’s delegation presented its case on the first day of these public hearings, while Israel’s delegation presented its response on the second day.

South Africa’s delegation was led by John Dugard, a former UN special rapporteur on human rights in the occupied Palestinian territories. Other members of the delegation included senior counsel Adila Hassim, Tembeka Ngcukaitobi and international lawyer Max Du Plessis. Irish laywer Blinne Ni Ghralaigh and British barrister Vaughan Lowe provided external counsel.

South Africa’s presentation to the ICJ has been widely regarded as compelling, compared to Israel’s rationalisation of the atrocities and war crimes carried out by the IDF.

Regrettably, the Australian government has failed to support South Africa’s credible genocide case against Israel at the ICJ, even though Australia ratified the Genocide Convention in 1949 and has therefore assumed an obligation to prevent and punish the crime of genocide taking place.

Some links to South Africa’s presentation are provided below:

• Address by Adila Hassim on Israel’s genocidal conduct (duration 24:51 minutes). A transcript of this address can be accessed here.
• Address by Blinne Ni Ghralaigh on the urgency and risk of irreparable harm to Palestinian rights (duration 31:46 minutes). A transcript of this address can be accessed here.
• South Africa’s full presentation to the ICJ (duration 3:18:03 hours).

The ICJ’s preliminary ruling is expected to be handed down towards the end of January 2024.

Notes
1. International Court of Justice, The Republic of South Africa institutes proceedings against the State of Israel and requests the Court to indicate provisional measures, Press Release, 29^th Dec 2023.
2. Refer to section ‘E. Provisional Measures Requested’ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), pp. 82-83. A copy of the provisional measures requested is also attached.