Authored By: Rivaldo Beukes
University of Free State
Introduction.
This is one of the most important cases in modern international law. The importance arises in the case of whether a genocide has been committed.
The history of these two countries runs deep. Before the 1948 era, when Israel gained independence, the Arab, Muslim, Christians, and Jewish population lived coexisting diversely. In 1947, the UN Partition Plan proposed that there be separate Jewish and Arab states under UN control. This plan was rejected, it and started the Arab Israeli War. Israel would then declare independence in 1948, which would lead to Arab forces invading. About 700,000 Palestinians were displaced. By 1967, Israel would occupy Gaza, the West Bank, and East Jerusalem. This occupation meant that Israel controls the borders, airspace, and coastline of Palestine. This control is often labeled as apartheid since the policies in Gaza and the West Bank mean there are;
Separate laws for Palestinians and Jewish Israelis,
Restrictions on movement and land access
Settlement expansion.
This occupation is linked to South Africa’s apartheid years, where the white minority displaced the majority black populations into townships away from the city, the segregation between racial and ethnic groups, as well as the limited movements to certain places, land access, and self determination.
Nelson Mandela, in his 1997 interview, stated that “We know too well that our freedom is incomplete without the freedom of Palestinians.
Facts
On the 29th of December 2023, South Africa brought the case before the International Court of Justice at The Hague, Netherlands. They alleged that Israel is committing a genocide against Gaza and the Palestinians, and the acts they have carried out, like killing Palestinians, constitute genocide. This is a violation of the Genocide Convention in terms of International Law. The conduct carried out by Israel included killing Palestinian women and children, as well as the destruction of hospitals, schools, and the denial of basic supplies to the Gaza Strip. The basic supplies included food, water, medicine, fuel, and electricity. The occupation of Gaza by Israel is described as apartheid of 75 years, a 56-year occupation, and a 16-year blockade of the strip. South Africa submitted evidence to the Court containing the following measures:
Suspension of military operations
Prevent genocide
Desist from killing, injuring, destroying life, and preventing births
Prevent displacement, deprivation, and destruction of life
Desist from incitement, and punish acts and encouragement to genocide
Prevent the destruction of and ensure the preservation of evidence
Submit ongoing reports to the Court on measures taken
Refrain from aggravating the situation.
Israel responded with disgust at the charges and allegations, stating that Israel operates according to International Law and focuses its military actions solely against Hamas. It accused South Africa of supporting a terrorist organization that seeks the destruction of the state of Israel. The Prime Minister then went on to say that Hamas is the one committing a genocide, and if they could, they would murder all of us.
On the legal basis, Israel argued that South Africa has no right to institute proceedings against them since they are no conflict or jurisdiction. Israel argues that South Africa’s evidence does not show the intent for a genocide for it to be under the Genocide Conventions 1948 statute, and that the Criminal Court of Justice has no jurisdiction over the ongoing war. Israel argued that if the measures suggested are implemented, it would deprive them of the international law obligation of self-defense.
The Legal Issues:
Does Israel conduct a breach of International Law according to the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, and as a result constitute a genocide?
Does South Africa have the jurisdiction standing to bring the case before the Criminal Court of Justice under the Genocide Convention?
Does the conduct Israel is carrying out fall under the wider scope of erasure of the Palestinian population?
Should the Court implement measures to prevent the conduct of Israel in Gaza? What are Israel’s obligations under International Law?
The Rules and Legislation:
The Genocide Convention on the Prevention and Punishment of the Crime of Genocide, 1948. In 1948, the United Nations Assembly adopted this law and defined the acts of apartheid/genocide. Article II states that a genocide can be defined as a conduct that involves five distinct actions carried out to eradicate, wholly or partially, a national, ethnic, racial, or religious community. These actions involve murder, inflicting severe physical or psychological damage, creating living conditions intended to induce physical annihilation, obstructing childbirth, and coercively relocating children.
According to Article III, these acts are prohibited in terms of international law and are punishable:
(a) Genocide
(b) Conspiracy to commit genocide.
(c) Direct and public incitement to commit genocide.
(d) Attempt to commit genocide.
(e) Complicity in genocide.
Under the obligations of International Law, Israel must respect the sovereignty and territorial integrity of other states. Protect the human rights of individuals and do not commit human rights abuses.
It states that a country complies with the UN Security Council resolutions.
Analysis:
South Africa alleged that Israel is committing a genocide in Gaza and submitted evidence that included statements from the Israeli government in the media, the Prime Minister, Benjamin Netanyahu has stated the following words and I quote: “ All the places in which Hamas is based, in this city of evil, all the places Hamas is hiding in, acting from – we’ll turn them into rubble,” “I’m telling the people of Gaza: get out of there now, because we’re about to act everywhere with all our force”. The Minister of Defense, Yoav Gallant, declared that “We’re fighting human animals and we are acting accordingly.”
The International Court of Justice had to determine whether the acts carried out by Israel constituted a plausible violation of the Genocide Convention, 1948, with all the statements issued by their officials, the killing of women and children, and the denial of basic needs to the Palestinian population.
Israel defended itself and said that all they did was self-defense against Hamas for the acts they carried out on 7th October 2023, which involved infiltration into the barrier between Israel and Gaza and killing civilians, capturing them, and sexual violence against women and girls in Israeli communities, Be’eri Sheva and Kfar Aza. The infiltration was done by 6,000 militants.
Verdict:
The Court determined that the Palestinians had a plausible right to be protected from genocide. The court also found that South Africa had a plausible right to initiate proceedings against Israel because they are both signatories to the Genocide Convention, 1948. The court ruled that provisional measures be put in place. These measures include;
Preventing acts that constitute genocide in Gaza
Allow humanitarian aid to Gaza, which was previously denied.
Report on the compliance of the provisional measures by reporting to the Court. The government and officials of Israel take necessary steps to prevent the incitement of genocide.
The Court ruled the concerns that there may be violations of the Genocide Convention and ordered the measures but did not order that Israel conduct constituted genocide.
The court failed to deliver a judgment on requiring Israel to declare a ceasefire, which was also requested by South Africa. The failure to order ceasefire meant that Israel’s Prime Minister welcomed the Court’s decision not to order a ceasefire but rejected the findings of the acts of genocide committed and said it would continue to defend itself.
Israel continued the obstruction of basic needs to the Gaza strip. In February, Human Rights Watch and Amnesty International stated that Israel’s denial of the measures put in place by the Court of basic needs of food and water constituted war crimes. Israel continued with the ignorance of the Criminal Court of Justice and continued with its offensive operations.
Opinionate Conclusion.
This case has shown us that the United Nations, Criminal Justice Court of Justice has not condemned Israel to a ceasefire, something that encourages them that what they are doing is correct with no consequences. There was an arrogance and defense of Israel all over the world, where they would state that “Israel is the land of Jesus” and cited the Bible as a defense mechanism to say what they were doing and continue to do is justified because they are the chosen people.
