South Africa’s Legal Attempts to Prevent Genocide in Gaza

The last half-year has witnessed Israel embark on its most devastating military campaign in Gaza, resulting in the loss of thousands of Palestinian lives and the decimation of vital infrastructure. South Africa’s legal action against Israel in the International Court of Justice hopes to stop the onslaught.

After Hamas’ attack against Israel on 7 October 2023, Israel launched what has been described as one of the deadliest conventional bombing campaigns in the history of modern warfare in Gaza, Palestine. In mid-November 2023, United Nations experts called on the international community to prevent the genocide of Palestinian people. By 6 December 2023, more than 15,000 Palestinians had been killed in Gaza, of which 40 percent were children, as recorded in a letter by the UN Secretary-General to the President of the UN Security Council. He further explained that the level of Israel’s killing was so extensive that “nowhere is safe in Gaza.” Gaza was described by UN International Children’s Emergency Fund (UNICEF) officials as a graveyard for children. Palestinians in Gaza were furthermore at immediate risk of death by starvation, dehydration, and disease as a result of the ongoing Israeli siege, and insufficient aid being allowed into the city. On 8 December 2023, the head of the UN agency for Palestine refugees (UNRWA), wrote a letter to the President of the UN General Assembly, calling upon him and UN member states to take immediate action to implement a humanitarian ceasefire as the situation in Gaza was untenable. At that stage, over 130 UNRWA aid workers had already been killed in the Israeli bombardment.

South Africa’s application in the ICJ

In this context, South Africa filed an application with the International Court of Justice (ICJ) on 29 December 2023, instituting proceedings against Israel alleging violations of the Convention of the Prevention and Punishment of the Crime of Genocide in Gaza. South Africa, as a state party to the Convention, argued that it sought to protect its own right to safeguard compliance with the Convention. South Africa also requested the Court as a matter of extreme urgency, to indicate various provisional measures to protect the Palestinian people as a group, under the terms of the Convention. As this was an application for provisional measures only, it was not necessary for the Court to come to a final decision on the question of whether Israel’s conduct in Gaza constituted genocide. It was, however, sufficient for South Africa to show that at least some of the acts alleged were capable of falling within the provisions of the Convention. In terms of Article 2, genocide refers to any acts committed with the intent to destroy, in whole or in part, a national, ethic, racial or religious group. This include killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions that are calculated to bring about their physical destruction, or imposing measures intended to prevent births.

The application was heard by the ICJ on 11 January 2024 where both South Africa and Israel presented oral arguments. In its argument, South Africa’s counsel presented compelling evidence to show how Israel’s conduct in Gaza violated all of the aforementioned provisions of the Convention’s Article 2. In presenting its case, South Africa relied significantly on statements and reports by UN chiefs and bodies, as well as non-governmental organisations and eye-witness accounts from Gaza, including the account of Palestinian journalists on the ground. Israel continues to restrict access to Gaza by international journalists, investigators, and fact-finding teams.

Israel’s legal team argued that South Africa has failed to demonstrate the jurisdiction of the Court under the Convention, and further argued that its acts did not fall within the provisions of the Convention because the specific intent to destroy, in whole or in part, the Palestinian people had not been proven. According to Israel it was acting with the intention to defend itself in response to Hamas’ attack on 7 October 2023, and to terminate any further threats against it.

The ICJ’s order

The Court handed down its much anticipated judgment on 26 January 2024. Having considered the various arguments, it concluded that, prima facie, it had jurisdiction in terms of Article 4 of the Convention to entertain the case and therefore refused Israel’s request that the case be dismissed by the Court. The ICJ noted that, at that stage of the proceedings, it only had to decide whether the rights claimed by South Africa, and for which it sought protection, were plausible. As mentioned above, South Africa sought to protect the rights of the Palestinians in Gaza, to seek their protection from alleged acts of genocide, attempted genocide, direct and public incitement to commit genocide, complicity in genocide, and conspiracy to commit genocide.

The Court found that the rights claimed by South Africa were plausible, and that a link existed between these rights and at least some of the provisional measures requested in South Africa’s application. The Court furthermore held that there was a real and imminent risk of irreparable prejudice to the plausible rights invoked by South Africa, and as specified by the Court. These findings were a victory for South Africa, but the Court did not grant the exact measures as requested in the application, nor did the Court order an immediate ceasefire. It ruled, however, that Israel must take all measures within its power to prevent all acts that might fall within the scope of Article 2 of the Convention – that it should take all measures to prevent, and punish the direct and public incitement of, genocide in Gaza. Furthermore, Israel was ordered to take immediate and effective measures to enable urgent basic services and humanitarian assistance into Gaza.

Consequences of the ICJ judgment

Despite this judgment, Israel continues its military onslaught in Gaza, killing thousands of Palestinians, mostly women and children, acting in clear violation of the Convention and the ICJ ruling. On 6 March 2024, South Africa filed another application for additional provisional measures for the protection of the Palestinians. On 28 March 2024, the ICJ ordered Israel to take all necessary and effective measures to ensure, in cooperation with the UN, the unhindered provision of urgently needed basic services and humanitarian assistance, including of food, water, electricity, shelter, clothing, medical supplies, and medical care to Palestinians throughout Gaza. However, it would appear that all legal measures in the highest international courts have come to naught for the Palestinians. Recently, Muslims all around the world celebrated Eid-ul Fitr, marking the end of a month of Ramadan fasting. However, for Palestinians in Gaza, who have been on the brink of starvation for the past few months, there was not much to celebrate as Israel continued to block food deliveries and launch deadly air raids. Although Israel recently said it has moved aid into Gaza, after succumbing to international pressure, the UN says it remains much less than the bare minimum to meet humanitarian needs. Consequently, the situation in Gaza remains dire and despite the best legal efforts by South Africa, it is evident that international human rights frameworks have failed in providing meaningful protection to Palestinians during this critical time.

Dr Fatima Essop is an Advocate of the High Court of South Africa with a PhD in Law from the University of Cape Town, a Fellow of Harvard Law School in the Program on Law and Society in the Muslim World (2022-23), and a Fellow of the Institute of Advanced Studies University of Western Australia-2023.

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