South Africa’s Gaza genocide case against Israel

South Africa’s initial hearing against the state of Israel in the International Court of Justice (ICJ) will be held this week, when it will request “provisional measures” as urgent, interim relief to prevent the ongoing acts of genocide against the Palestinians living in Gaza.

The South African case draws extensively on the recent precedent set in the ICJ in the case of The Gambia v Myanmar. The principles established in this case are significant for understanding South Africa’s case against Israel and its prospects of success.

The South African application relies on the principles outlined by the ICJ in The Gambia v Myanmar in pre-empting potential objections from Israel in respect of the ICJ’s jurisdiction to hear the matter, as well South Africa’s standing to initiate the case. The precedent is also significant in deciding whether an order for provisional measures should be granted.

The South African application draws on the Genocide Convention (the Convention) adopted in 1948 following the Holocaust in which millions of Jews and others were killed by Nazi Germany during World War 2. Both Israel and South Africa are parties to the convention. Notably too is the US, even though that country generally has not ratified international human rights treaties. More on this later.

Gambia v Myanmar

In November 2019, Gambia instituted an application against Myanmar, alleging that the latter’s treatment of the Rohingya minority group constituted acts of genocide in violation of the convention. In January 2020, as a provisional measure, the ICJ ordered Myanmar to comply with the convention, preserve evidence connected with allegations of genocide, and report regularly to the ICJ on its adherence to the order, which Myanmar did do. A further judgment was handed down in July 2022 where the jurisdiction of the ICJ was confirmed. During the next phase of this case Gambia has to prove definitively that genocidal acts were committed by Myanmar.

ICJ jurisdiction

In The Gambia v Myanmar, Myanmar argued that the ICJ lacked jurisdiction since no dispute existed between Gambia and Myanmar. The ICJ rejected this, noting, among other statements, a note verbale (a formal record of information) sent by Gambia to Myanmar, calling for an end to acts of genocide against the Rohingya.

The ICJ need only to determine whether the rights claimed, and of which protection is necessary, are plausible.

Similarly, the South African application establishes a convincing paper trail wherein it pre-empts a similar jurisdictional objection. The application details multiple statements, following the current invasion of Gaza, wherein members of South Africa’s Department of International Relations and Cooperation, Minister Naledi Pandor and President Cyril Ramaphosa warn of a looming genocide. South Africa’s application also notes that on 21 December 2023, it sent a note verbale to the embassy of Israel in South Africa, in which it raised its concerns about “credible reports that acts meeting the threshold of genocide”, as defined in the convention, were being perpetrated in Gaza. While Israel did not respond to South Africa, it has more than once denied publicly that it has violated the convention.

South Africa’s application argues that, based on the precedent in The Gambia v Myanmar, the public denials by Israel are sufficient to establish “a disagreement on a point of law or fact, a conflict of legal views or interests” between the two countries.

South Africa’s standing to bring the application

In The Gambia v Myanmar, Myanmar argued that Gambia’s claim was inadmissible because the convention did not contemplate claims by state parties which had not been injured and since no Gambians were affected in this case, Gambia lacked standing to initiate such a case.

The ICJ rejected this and affirmed the convention’s status as a treaty with obligations owed by each state party to all others collectively. Similarly, the South African application states that South Africa is “acutely aware of its own obligation – as a State party to the Genocide Convention – to prevent genocide”. This is significant because it affirms the obligations of all parties to the convention. It is also significant because, should the application for provisional measures succeed, the US and all other parties to the convention, would have a clear and binding obligation to prevent genocidal acts against the Palestinians.

Provisional measures

A determination in respect of provisional measures need not determine the merits definitively. Instead, the ICJ need only to determine whether the rights claimed, and of which protection is necessary, are plausible. Moreover, a link must exist between the protection required and the provisional measures being requested.

The events, since the Hamas-led attack on people in Israel on 7 October, may only be described as occurring as part of an ongoing genocidal ‘continuum’.

In The Gambia v Myanmar, Myanmar argued that subjective intent is crucial in determining whether an act constitutes genocide. It argued that the ICJ must determine whether it is plausible that the existence of a genocidal intent is the only inference that can be drawn from the acts alleged and the evidence submitted. The ICJ rejected such a high threshold at the provisional stage, requiring only that the rights of the Rohingya people are acknowledged and that the rights are protected from acts of genocide.

To meet this threshold set by the ICJ, the South African application provides a detailed, factual account of a “continuum” of genocidal acts, beginning during the Nakba, 75 years ago, when many Palestinians were forced to live in Gaza as refugees, which genocidal acts have continued through military occupation, and the ongoing curtailment of fundamental rights. This has resulted in Gaza becoming “an impoverished ghetto with a decimated economy and a collapsing social service system”. The events, since the Hamas-led attack on people in Israel on 7 October, may only be described as occurring as part of an ongoing genocidal “continuum”.

These acts include:

1. The killing of Palestinians: To date, 22,185 Palestinians have been killed – 70% of these are women and children. South Africa’s application notes that “an additional estimated 7,780 people, including at least 4,700 women and children, are reported missing, presumed dead under the rubble of destroyed buildings – dying slow deaths – or decomposing in the streets where they were killed”;
2. Causing serious bodily and mental harm to Palestinians: The application notes that more than 55,243 Palestinians have been wounded since October, the majority of them women and children. Burns and amputations are typical injuries. It further notes the existence of severe mental trauma after three months of relentless bombardment, displacement, loss of life and the many dehumanising acts that Palestinians have been subjected to;
3. Mass expulsion from homes and displacement: So far it is estimated that more than 1.9 million Palestinians in Gaza (about 85% of the population) have been displaced;
4. Deprivation of access to adequate food and water: The papers provide a narrative of the impact of a “complete siege” on Gaza services, preventing electricity, food, water and fuel from entering the strip and which has now pushed Gaza to the “brink of famine”;
5. Deprivation of access to adequate shelter, clothes, hygiene and sanitation: The application notes that the impact of this is diarrhoea cases among children aged under five are 25 times what they were before the conflict, which can be lethal for malnourished children. Sewage is flowing into the streets where people live and [e]verywhere you look is congested with makeshift shelters. Everywhere you go, people are desperate, hungry and terrified”;
6. Deprivation of adequate medical assistance as a result of the “unrelenting war” on the health system: The application notes that 13 out of 36 hospitals and 18 out of 72 healthcare centres are still functioning, some of them barely, 22 health workers have been killed, and premature babies and ICU patients have died due to the loss of electricity. There is a shortage of supplies and patients are subject to procedures, such as amputations, without anaesthesia while chronic conditions such as kidney disease and cancer cannot be treated;
7. Destruction of Palestinian life through the bombing of infrastructure such as schools, mosques and universities: No learning is currently taking place in Gaza;
8. Imposing measures intended to prevent Palestinian births: The application notes, for example, the increase in premature births and maternal mortality.

Finally, South Africa’s court papers list the multiple expressions of genocidal intent against Palestinians by Israeli officials, including Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The application also quotes a “motivational speech” to members of the Israeli army by a veteran from the time of the Nakba:

“Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live… Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him… We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”

Based on the actions and statements, the South African application argues that prima facie a genocide is under way in Gaza and that provisional measures are necessary to protect against further, severe and irreparable harm to the Palestinian people. Measures would include an immediate ceasefire, a requirement that Israel take steps to prevent the destruction of evidence and preserve evidence related to allegations of acts of genocide, as well as report at regular intervals on measures taken to prevent genocide.

Implications of the South African case

If precedent is adhered to, then it is likely that South Africa’s case for provisional measures will succeed. Moreover, in a context where Gaza has now been described as uninhabitable and apocalyptic, the case is a strategy to impose binding obligations on Israel in the context where the UN Security Council has not been able to do so.

The bigger concern, however, is whether an ICJ order will in fact stop Israel from continuing its brutal actions in Gaza? Tragically, probably not. However, such an order would establish the moral and legal authority that Israel’s heavy-handed action in Gaza is wrong and would oblige countries to take steps to stop the ongoing genocidal acts against Palestinians. It will also contribute to the widening ripple of global solidarity for the Palestinian cause that cannot be ignored. DM

Dr Faranaaz Veriava is a senior lecturer in the University of Pretoria Law Faculty, and the head of SECTION27’s Education Programme.