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South Africa versus Israel at ICJ

Established in 1945, the International Court of Justice is one of the six principal organs of the United Nations which adjudicates disputes between states in accordance with international law. Rarely has it received such public attention, a sign of the historic nature of the case brought by South Africa, which alleges that Israel has perpetrated genocide against the Palestinian people in Gaza. Israel categorically denies the allegation and on Friday took the step of choosing to defend itself in person, further evidence of the high stakes on both sides.

Under the Genocide Convention of 1948, the legal team representing South Africa elucidated, on Thursday, a meticulously detailed, highly structured case on legal and moral grounds. They have requested “provisional measures” from the ICJ to end the atrocities committed in Gaza.

South Africa has taken the case against Israel under Article 9 of the Genocide Convention. It argues that although it is not directly affected by Israel’s actions against Gaza, it has an obligation to act as a party to the Convention when genocide is being perpetrated. In their 84-page submission to the Court, the South African legal team cited their right to bring the case to the ICJ under erga omnes partes – the argument that all parties to the convention are obliged to respond. The precedent for this interpretation was set and confirmed by the court in 2019 when the Gambia brought a case alleging that Myanmar had violated the Genocide Convention in its treatment of the Rohingya group.

The Genocide Convention was devised after the Holocaust. Both states are parties to the convention, which, as argued by the South African representatives, makes the jurisdiction of the court very clear.

The South African team insisted that the case underscores our shared humanity. That it is South Africa taking the case is seen as highly significant. This is a state that has experienced the brutality of an apartheid regime which was largely ignored by the international community.

The South African legal team argued that there is clear genocidal intent as indicated by statements of members of the Israeli government. Such language, including the use of the term “human animals” by the Israeli defence minister, are repeated by Israeli soldiers mounting the campaign against the Palestinians. This, among other instances, indicates that “the intent to destroy Gaza has been nurtured at the highest level of the state”, it argued.

A final ruling could take years. South Africa is calling for the court to order provisional measures including a halt to Israel’s military operation, which means that it must determine whether its actions are “plausibly genocidal”. Irish barrister Blinne Ní Grailaigh, KC gave a powerful account of the atrocities against the Palestinian people and pointed to the fact that 48 mothers and 117 children have been killed each day. She introduced a heartbreaking new acronym that has emerged from the conflict: “WCNSF – wounded child no surviving family”.

Rounding off their case, the South African representatives stated that while the scale of the atrocities being committed against the Palestinians was “frighteningly unprecedented”, what the court is being asked to do is not unprecedented. The jurisprudence of the ICJ is clear, and no exception can be made to allow a state to engage in actions which violate its obligations under the Genocide Convention. All people must be protected equally.

Israel has no defence. This is a televisual war with the Israeli Defence Force, IDF, 'kill all policy' destroying Gaza and preventing or interdicting deliveries of water, food and shelter to Gazan civilians. This is not self defence, this is revenge killing with no consideration for civilians. The IDF has lost the war with Hamas with rockets still being fired into Israel, with Hamas killing IDF personnel in 'groups of 9' clearly ambush tactics. The IDF are mostly reservists who do not fight in recognised battle/fighting formations. Videos of single file attacks confirm this wasteful tactic.

Anti-Semitism is no defence to interdicting the slaughter in Palestine; it is not favouring Hamas governed Gaza; it is not criticising Netanyahu who cares nothing about anyone except himself, desperate to stay out of jail. Natanyahu's kill all policy renders Israel unsafe.

Netanyahu's mistakes:- the blockade of Gaza from 2005; unilateral security for Israel must be communal for both Israel and Palestine; Hamas cannot be defeated militarily.

The solution, the resolution of Gaza, West Bank and East Jerusalem as the state of Palestine - legally binding with the UN; the families of Israeli hostages have the power to determine the next Israeli government. Netanyahu faces prison for corruption as did former PM Olmert. The world must stand against the fascist Israeli government and support the Israeli people.

The ICJ has delivered a interim ruling calling on Israel to refrain from impeding the delivery of aid into Gaza and improve the humanitarian situation; It also ordered Israel to take all measures within its power to prevent acts of genocide in the besieged enclave and to punish incitement to genocide; However, it did not order Israel to halt military operations in Gaza, one of South Africa's key demands in the case it brought to The Hague earlier this month. January 26, 2024 the Hague.

Source: Stakes could not be higher in genocide case against Israel, Dr Alanna O'Malley, Irish Times, January 13, 2024.


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