Authored By: Lesego Motloenya
Boston City Campus Business College
INTRODUCTION
The weight of responsibility that comes with bringing legal action against Israel for violating the Genocide Convention is something that South Africa is well aware of. But South Africa is also well aware of its responsibility to stop genocide as a State party to the Genocide Convention. When evaluating South Africa’s charges and Israel’s response, it is critical to comprehend the meaning of the term “genocide” and the precise purpose required. With the stated goal of eradicating the group, South Africa’s application centers on the right of Palestinians to not be attacked simply because they are Palestinians. According to Israel, South Africa’s assertions are implausible since Israel’s military action does not have this as its goal. Because it involves the interpretation and implementation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in an ongoing armed conflict, this case before the International Court of Justice (ICJ) is relevant on a global scale. The proceedings show that preventing genocide is a contemporary duty that all states must fulfil, not only a historical concern.
MAIN BODY
Israel is killing a lot of Palestinians in Gaza, including children; seriously injuring Palestinians in Gaza, especially children; and subjecting them to living conditions that are meant to destroy them collectively. In addition to the widespread destruction of homes and residential areas, these conditions include expulsions from homes and mass displacement; lack of access to sufficient food and water; lack of access to adequate medical care; lack of access to adequate shelter, clothing, hygiene, and sanitation; destruction of Palestinian life in Gaza; and the imposition of measures meant to prevent Palestinian births. According to the Palestinian Health Ministry, Israel has murdered over 21,110 Palestinians since it started its military attack on Gaza, with at least 70% of those dead being women and children.
BACKGROUND OF THE ISSUE
Evidence of Israeli State officials’ specific intent (“dolus specialis”) to commit and persist in committing genocidal acts or to fail to prevent them has been significant and overt since October 2023. Those statements of intent, when combined with the level of killing, maiming, displacement and destruction on the ground, together with the siege, evidence an unfolding and continuing genocide. On 7 October 2023, in a televised address by the Government Press Office, Prime Minister Benjamin Netanyahu promised to “operate forcefully everywhere”. [i]On 13 October 2023, he confirmed that “[w]e are striking our enemies with unprecedented might . . .”. On 15 October 2023, when Israeli airstrikes had already killed over 2,670 Palestinians, including 724 children441, the Prime Minister stated that Israeli soldiers “understand the scope of the mission” and stand ready “to defeat the bloodthirsty monsters who have risen against [Israel] to destroy us”. On 16 October 2023, in a formal address to the Israeli Knesset, he described situation as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle”, a dehumanising theme to which he returned on various occasions, including: on 3 November 2023, in a letter to Israeli soldiers and officers also published on the platform “X” (formerly Twitter); the letter asserted that: “[t]his is the war between the sons of light and the sons of darkness.[ii]
South Africa filed its request for provisional measures on Dec. 29, 2023, amid the rising humanitarian toll in Gaza. In its application to the ICJ, South Africa “unequivocally condemns” Hamas’s actions and states that its “foreign policy objective [is] the attainment of a durable peace between Israel and the State of Palestine, with two States existing side by side within internationally recognised borders, based on those existing on 4 June 1967.” As a legal matter, South Africa alleges that Israel is violating its obligations under the Convention Against Genocide. The proceedings instituted by SA against the State of Israel on 29 December 2023 (ICJ ‘The Republic of South Africa institutes proceedings against the State of Israel and requests the court to indicate provisional measures’ (www.icj-cij.org, accessed 8-2-2024)) concerning the alleged violations by Israel of its obligations under the Geneva Convention on the Prevention and Punishment of the Crime of Genocide (the Geneva Convention). The facts relied on by South Africa in this Application and to be further developed in these proceedings establish that against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide. South Africa, mindful of the jus cogens character of the prohibition of genocide and the erga omnes and erga omnes partes character of the obligations owed by States under the Genocide Convention, is making the present Application to establish Israel’s responsibility for violations of the Genocide Convention; to hold it fully accountable under international law for those violations; and most immediately to have recourse to this Court to ensure the urgent and fullest possible protection for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of genocide.
Israel has publicly rejected any suggestion that it has violated international law in its military campaign in Gaza. Notably, Israel has dismissed as “outrageous and false” the assertion that Israel’s military attacks on Gaza meet “the legal definition of genocide” and are aimed at “not just simply the killing of innocent people and the destruction of their livelihoods but a systematic effort to empty Gaza of its people”. [iii]Israel denies that its conduct in Gaza violates its obligations under the Genocide Convention, asserting that “[t]he accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant” and “antisemitic”. [iv] Furthermore, by its attitude and behavior, Israel has denied that its actions in Gaza are limited by its obligations under the Genocide Convention. It has engaged in and continues to engage in acts and omissions against the Palestinian people in Gaza that have been claimed to be genocidal. Therefore, Israel’s own actions highlight the parties’ disagreement. As a signatory to the Genocide Convention, South Africa has maintained its stance that it must take action to stop genocide or the threat of it in Gaza.
LEGAL ANALYSIS
Article IX of the Genocide Convention provides: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” [v]The Genocide Convention establishes genocide as an international crime and imposes obligations on states to prevent genocide, punish perpetrators, and ensure compliance with international law. Importantly, the Convention creates erga omnes obligations, meaning all states have a legal interest in preventing genocide regardless of direct involvement. The ICJ emphasises that states must act proactively once there is a serious risk of genocide, not only after genocide has been proven. [vi]
CONTROVERSIAL ASPECTS
Genocide necessitates evidence of a determined intent to exterminate a group, which is very challenging to prove. High civilian casualties, according to critics, do not always indicate genocide. The interpretation of purpose may be complicated by military aims. Article II may be construed more widely as a result of the proceedings, especially when it comes to destruction by humanitarian hardship as opposed to direct mass murder. The topic of whether the International Court of Justice (ICJ) should step in during hostilities is another contentious issue that raises concerns regarding the enforcement of international court orders and judicial limitations during times of war. By claiming the ICJ’s jurisdiction under the Genocide Convention, South Africa argues that it has a legal duty to avoid genocide. Both sides concur that the International Court of Justice lacks the authority to rule on whether Israel has committed or is committing crimes against humanity or war crimes. These crimes, in contrast to genocide, do not necessitate demonstrating a deliberate purpose to eradicate a group entirely or in significant part.
CONCLUSION
In the conclusion, the ICJ case, and the attention it has generated, might also help Israel understand that it is at serious risk of losing the support it originally had for its response to the deadliest per-capita terrorist attack on record. Many are predisposed to see any actions by Israel as presumptively evil, while others view them as presumptively righteous. These tendencies are reinforced in an adversarial proceeding that some view as an overdue indictment of Western imperialism generally. This case, therefore, underscores the necessity for stronger monitoring mechanisms within international law. Such mechanisms could include enhanced early-warning systems under United Nations supervision, mandatory reporting obligations by states during armed conflicts, and clearer standards allowing international institutions to intervene where there is a serious risk of genocidal acts. Strengthening compliance monitoring would shift genocide law from a system focused primarily on punishment toward one centred on prevention, which reflects the true purpose of the Genocide Convention.
REFERENCE(S):
[i] Prime Minister of Israel, @IsraeliPM, Tweet (10:31 p.m.), 7 October 2023, https://twitter.com/ IsraeliPM/status/1710769906373775373.
[ii] Israel Ministry of Foreign Affairs, “Press Release: Excerpt from PM Netanyahu’s remarks at the opening of the Winter Assembly of the 25th Knesset’s Second Session”, 16 October 2023, https://www.gov.il/en/departments/news/excerpt-from-pm-netanyahu-s-remarks-at-the-opening of-the-knesset-s-winter-assembly-16-oct-2023.
[iii] Jordan says Israel aims to expel Palestinians from Gaza”, Reuters, 10 December 2023, https://www.reuters.com/world/middle-east/jordan-says-israel-aims-expel-palestinians-gaza- 2023-12-10.
[iv]Israel Ministry of Foreign Affairs, “The War Against Hamas: Answering Your Most Pressing Questions”, 15 December 2023, https://www.idf.il/en/mini-sites/hamas-israel-war-23/all-articles/ the-war-against-hamas-answering-your-most-pressing-questions.
[v] Genocide Convention 1948
[vi] ICJ
