INTRODUCTION
On December 29, 2023, the Republic of South Africa initiated legal proceedings against the State of Israel at the International Court of Justice (ICJ), accusing Israel of violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. In its lawsuit, Republic of South Africa alleged that, Israel has failed to prevent genocide and has failed to punish incitement to genocide against Palestinians in the Gaza Strip.
The lawsuit contends that Israel’s actions are in contravention of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, an international treaty adopted by the United Nations General Assembly. South Africa has also requested the ICJ to indicate provisional measures in response to the alleged violations.
ABOUT INTERNATIONAL COURT OF JUSTICE (ICJ)
The main court system inside the United Nations (UN) is the International Court of Justice (ICJ). Established in 1945 by the UN Charter, the ICJ’s role is to settle legal disputes between States in accordance with international law and offer advisory opinions on legal questions referred by authorized UN organs and specialized agencies.
The ICJ’s jurisdiction covers disputes between States involving legal elements such as treaty interpretation, questions of international law, and violations of international obligations. Only States can refer specific matters to the ICJ, and the court’s jurisdiction applies only when both parties involved have accepted it. Additionally, certain international treaties automatically confer jurisdiction to the ICJ for disputes among States Parties to those conventions. Its overarching purpose is to contribute to the peaceful resolution of international conflicts through legal means.
HOW THE ICJ WORKS
The Court may entertain two types of cases: legal disputes between States submitted to it by them (contentious cases) and the requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (CPPCG)
The Genocide Convention, adopted by the UN General Assembly on December 9, 1948, was the first human rights treaty, reflecting the international commitment to prevent atrocities like those in World War II. It codified the crime of genocide applicable in both war and peace.
The CPPCG defines genocide as including:
- Killing or inflicting serious physical or mental injury on members of a national, ethnic, racial, or religious group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
The Convention’s definition of genocide, widely adopted globally, is reflected in the 1998 Rome Statute of the ICC. State Parties are obligated to prevent and punish genocide, applicable to rulers, officials, or individuals. These obligations are considered norms of international customary law, binding on all states, regardless of Convention ratification.
DISPUTE
The CPPCG establishes on State Parties the obligation to take measures to prevent and to punish the crime of genocide. This includes enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals”. South Africa alleged in its lawsuit that, Israel wants to eradicate “a substantial part of the Palestinian national, racial, and ethnic group” by its operations in Gaza Strip. Additionally, it claims that the “mass killing” of Palestinians in Gaza constitutes a violation of Article II of the Genocide Convention by Israel. Tembeka Ngcukaitobi, attorney representing South Africa, contended before the International Court of Justice that “the intent to destroy Gaza has been nurtured at the highest level of state.” Number of countries inter alia Bangladesh, Bolivia, Brazil, Colombia, Cuba, Indonesia, Iran, and Iraq have all backed South Africa.
South Africa included eight Israeli acts against Palestinians in Gaza that it claimed were genocidal in nature in its filing which are:
- Massively murdering Palestinians, especially children.
- Subjecting Palestinians, especially children, to conditions of existence designed to bring about their annihilation as a people and causing them great physical and psychological harm.
- Leading to the widespread demolition of houses and residential areas, as well as the forced removal of Palestinians from their homes in huge numbers.
- Refusing to provide Palestinians with enough food and water.
- Precluding Palestinians from receiving quality healthcare.
- Denying Palestinians access to sufficient clothing, housing, hygienic conditions, and sanitation.
- Endangering the lives of the Palestinian people.
- Enforcing policies meant to stop Palestinian pregnancies.
Israeli President Isaac Herzog denounced the accusations made by South Africa, describing them as “atrocious and preposterous.” Israel asserts its right to self-defense, under international law includes the right to use force against Hamas, which it regards as a terrorist group. Emphasizing a conflict with Hamas, not Gaza’s people, Israel claims that its actions are within international law, aiming to avoid harm to Palestinian civilians.
PROVISIONAL MEASURES REQUESTED
“South Africa, as a State party to the Convention on the Prevention and Punishment of the Crime of Genocide, respectfully requests the Court, as a matter of extreme urgency, pending the Court’s determination of this case on the merits, to indicate the following provisional measures in relation to the Palestinian people as a group protected by the Genocide Convention.
The key measures include an immediate halt to Israeli military operations in Gaza, prevention of genocide, and ensuring the well-being of Palestinians. Israel is also urged to prevent forced displacement, provide access to basic needs, and preserve evidence. The court mandates Israel to submit regular reports on measures taken and refrain from actions that escalate the dispute.
CONCLUSION
While the final judgement in the present matter may take a long time, maybe several even several years to come through. The ICJ for the time being may pass an interim order against Israel if South Africa’s case is found plausible and compelling. Although all parties, including South Africa and Israel, are legally bound by ICJ’s verdicts in theory, enforcement is fairly challenging, if not impossible. The outcome of this case will not only impact the involved parties but also holds implications for international law and the pursuit of justice in conflict zones.
