Authored By:Mahmuda Zaman Tanha
University of Asia Pacific
Case Summary : South Africa v. Israel (ICJ, 2023–Present)
Basis: Under Article X of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which both States are parties.
Court: International Court of Justice (ICJ)
Date Filed: 29 December 2023
Order on Provisional Measures: 26 January 2024
Jurisdiction: Article IX, Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention); Article 36(1), ICJ Statute
Parties :
Applicant: Republic of South Africa
Respondent: State of Israel
1.1 Procedural History:
- 29 December 2023: South Africa filed an application alleging Israel’s military actions in Gaza constitute genocide, requesting provisional measures.
- 26 January 2024: ICJ issued an order on provisional measures, recognizing prima facie jurisdiction and granting measures to prevent potential genocidal acts, facilitate humanitarian aid, and curb incitement to genocide.
- 2024–Present: Israel largely disregarded provisional measures. Fourteen countries expressed intent to intervene. Israel was granted a six-month extension to submit a defense. Final judgment anticipated in late 2027–2028.
1.2 Facts:
Historical Context (1948–1967):
Establishment of Israel in 1948 led to the displacement of ~750,000 Palestinians (Nakba).
1967 Six-Day War resulted in Israeli occupation of Gaza, West Bank, and East Jerusalem; internationally regarded as occupied territories under the Fourth Geneva Convention.
Gaza Disengagement & Blockade (2005–2022):
Israel withdrew ground troops and settlers in 2005 but retained control over Gaza’s borders, airspace, and population registry.
Since 2007, Gaza has been under blockade after Hamas’ takeover. Multiple conflicts (2008–2009, 2012, 2014, 2021) resulted in extensive civilian casualties.
Hamas Attack on Israel (7 October 2023)
On 7 October 2023, Hamas and Palestinian Islamic Jihad launched a coordinated assault on Israel, firing rockets, breaching border fences, and targeting civilian communities. More than 1,200 Israelis were killed, including 36 children, and approximately 240 hostages were taken.
Israeli Response in Gaza (October–December 2023)
Israel responded with a large-scale military campaign in Gaza. By December 2023, more than 21,000 Palestinians had been killed, 70 percent of them women and children. Around 7,780 remained missing under rubble or destroyed buildings. Extensive airstrikes and bombardments targeted residential blocks, hospitals, schools, mosques, churches, and designated shelters. Entire families were annihilated; by November 2023, at least 312 families had each lost ten or more members. Approximately one in every hundred Gazans was killed.
The humanitarian situation collapsed as more than 1.2 million people were displaced to southern Gaza, including makeshift shelters in Rafah, Khan Yunis, and Al-Mawasi. Severe shortages of food, fuel, water, electricity, and medical supplies left civilians in dire conditions and crippled the health system.
Escalation (2023):
Pre–October 2023, West Bank violence resulted in 495 Palestinian deaths and ~12,000 injuries.
7 October 2023: Hamas launched coordinated attacks killing ~1,200 Israelis and taking ~240 hostages.
International Reactions (October–December 2023):
The United Nations and the International Committee of the Red Cross described Gaza as “apocalyptic,” a “living hell,” and a “crisis of humanity.” The Prosecutor of the International Criminal Court announced investigations into attacks on civilians and obstruction of humanitarian relief supplies. United Nations resolutions condemned both the targeting of civilians and the taking of hostages, reaffirming obligations under international humanitarian law.
Proceedings before the International Court of Justice (29 December 2023):
On 29 December 2023, South Africa filed an application against Israel before the International Court of Justice under Article IX of the Genocide Convention. South Africa alleged that Israel’s military operations in Gaza amounted to genocide. It requested provisional measures, including halting military operations, ensuring the delivery of humanitarian aid, and preventing further destruction of the Palestinian people. South Africa situated its application within a broader historical context, citing seventy-five years of apartheid, fifty-six years of occupation, and sixteen years of blockade imposed on the Palestinian people.
1.3 Detainees & Ill-Treatment:
Palestinian detainees face torture, cruel or degrading treatment, including hooding, sexual assault, stress positions, solitary confinement, and ill-treatment of children during interrogation.
7 October 2023 Israel-Hamas Conflict: Hamas and Palestinian Islamic Jihad attacked Israel, firing rockets, breaching Gaza fences, and targeting civilians, killing over 1,200 (36 children) and taking approximately 240 hostages.
Israel launched military operations against Gaza and West Bank, pledging to eliminate Hamas, invoking self-defense.
1.4 International Law Assessments:
- UN Special Rapporteurs, humanitarian organizations, and ICC investigations have concluded that Israel’s actions constitute collective punishment and may include war crimes.
- ICC Prosecutors have identified reasonable grounds to investigate Israeli attacks on civilians and obstruction of relief supplies.
- UN resolutions condemn attacks on civilians and hostage-taking.
Israeli Response:
Military operations in Gaza caused over 21,000 Palestinian deaths by December 2023 (70% women and children).
Displacement of over 1.2 million civilians; collapse of essential services and humanitarian crisis.
International Response:
UN and ICRC described Gaza as “apocalyptic.”
ICC initiated investigations into potential war crimes and attacks on civilians.
UN resolutions reaffirmed obligations under international humanitarian law.
➢ Jurisdictional: Does the ICJ have jurisdiction over South Africa’s claims under the Genocide Convention?
➢ Substantive: Whether Israel’s actions in Gaza constitute genocide or failure to prevent it.
➢ Whether South Africa, as a State Party, has standing to bring the claim.
➢ Provisional Measures: Whether the ICJ should order Israel to halt acts potentially amounting to genocide and ensure humanitarian assistance.
1.5 Legal Framework:
- ICJ Statute: Article 36(1) – allows ICJ to hear disputes arising under treaties in force. The Genocide Convention qualifies as such a treaty.
Genocide Convention:
Article IX permits disputes on interpretation, application, or fulfillment to be submitted to the ICJ. Both parties are State Parties without reservations.
1.6 Jurisdiction:
Article 36(1) ICJ Statute → Court has jurisdiction over cases referred by parties or provided for in treaties.
Article IX, Genocide Convention → Disputes on interpretation, application, or fulfilment of the Convention must be submitted to the ICJ at the request of a party.
Both Israel and South Africa are parties to the Convention without reservations to Article IX → jurisdiction accepted.
Existence of a Dispute:
South Africa provided statements from its officials and Israel’s responses as evidence of a dispute. The Court (Order on Provisional Measures, 26 Jan 2024) confirmed it has prima facie jurisdiction.
1.7 Standing (Locus Standi):
South Africa argued obligations under the Genocide Convention are:
Erga omnes → owed to the international community.
Erga omnes partes → owed to all State parties to the Convention.
Thus, South Africa need not be directly affected to bring the case.
Court affirmed prior jurisprudence (e.g., Gambia v. Myanmar), recognizing that any State party may invoke responsibility for violations.
Additional Argument:
South Africa also cited its own duty under the Convention to prevent genocide.
1.8 Court’s Finding:
- South Africa has prima facie standing to institute proceedings against Israel.
- ICJ Procedure in Contentious Cases Governed by the ICJ Statute and Rules of Court.
- Average case duration: ~4 years, but genocide-related cases may last much longer (e.g., Bosnia v. Serbia took 14 years).
1.9 ICJ Jurisprudence & Standing:
States may invoke responsibilities of other states under obligations erga omnes and erga omnes partes (e.g., Gambia v. Myanmar).
South Africa has legal interest in preventing genocide and fulfilling its obligations.
ICJ recognizes that a dispute exists when there is a disagreement on law or fact; Israel’s public rejection of genocide allegations and continued military operations fulfill this requirement.
2.1. Practical Outcome & Jurisdiction Confirmation:
On 26 January 2024, ICJ recognized prima facie jurisdiction over South Africa’s claims and found them sufficiently plausible to warrant provisional measures.
Confirms South Africa lawfully brought the case under its treaty rights.
Main steps:
- Provisional Measures:
❖ Requests have priority and are decided urgently.
❖ May later be revoked, modified, or expanded if circumstances change.
❖ South Africa has already requested additional measures (Feb 2024), but the Court reaffirmed implementation of existing measures.
- Preliminary Objections:
❖ Israel may challenge jurisdiction or admissibility (e.g., arguing no dispute exists).
❖ If upheld → case dismissed; if rejected → case moves to merits.
- Merits Stage:
❖ Involves written and oral proceedings (submissions, questioning, witnesses/experts).
❖ Third States may intervene under Articles 62–63.
- Deliberation & Judgment:
❖ Court deliberates in secret.
❖ Final judgment delivered publicly, often with separate/dissenting opinions.
❖ Judgment is final and without appeal.
2.2 Next Steps in South Africa v. Israel:
➢ Israel may file preliminary objections to jurisdiction/admissibility.
➢ If dismissed, the case will proceed to merits hearings (written and oral).
➢ Possible further requests for provisional measures by South Africa.
➢ Potential third-State interventions under Articles 62–63.
➢ Ultimately → Court will deliberate in private and issue a final, binding judgment.
2.3 Issue:
Key Legal Issues:
- Interpretation and application of the Genocide Convention.
- Whether Israel has committed genocide or failed to prevent it.
- Whether South Africa, as a State Party, has the obligation to act and can bring the claim.
Dispute Confirmation: Israel’s denial and continuation of military operations constitutes a legal disagreement, fulfilling ICJ requirements for a dispute Issue.
The key legal issue is whether the ICJ has jurisdiction over the dispute via the Genocide Convention and whether South Africa’s claims are “plausible” enough to warrant provisional measures.
Central to the case is whether there is genocidal intent (specific intent to destroy Palestinians as a group), a threshold notoriously difficult to prove under international law .VI. Parties’ Arguments
South Africa:
- Israel’s military operations demonstrate genocidal intent via patterns of conduct and rhetoric.
- Israel has failed to prevent or punish incitement to genocide.
- ICJ has jurisdiction under Article IX; rights claimed are sufficiently plausible.
- Requests provisional measures to halt ongoing violations and enable humanitarian relief.
Israel:
- Denies genocidal intent; operations are legitimate self-defense after Hamas attacks.
- Evidence does not show state policy or government intent to commit genocide.
- Contests ICJ jurisdiction and plausibility threshold; claims are exaggerated and false.
- Rejects constraints under the Genocide Convention.
2.4 Arguments:
South Africa’s Position:
- Contends that Israel’s military campaign in Gaza reflects genocidal intent, citing a pattern of conduct and genocidal rhetoric by Israeli officials as evidence.
- Argues Israel has failed to prevent or punish incitement to genocide .
- Maintains the Genocide Convention is the only viable legal avenue for ICJ jurisdiction .
- Seeks provisional orders requiring Israel to stop acts within the Convention’s scope and to enable humanitarian aid .
Israel’s Position:
- Denies genocidal intent, asserting military operations are legitimate self-defense following the October 7, 2023 Hamas attacks, which killed ~1,200 Israelis and took ~240 hostages .
- Argues that evidence cited does not implicate the government or military policy in genocide. Claims South Africa failed to show dispute under ICJ jurisprudence and that plausible claims threshold is not met .
- Calls the allegations a “blood libel” and rejects the court’s authority over the matter .
2.5 Judgment (Provisional Measures):
On 26 January 2024, the ICJ found:
- The claims are plausible (a low threshold) and that the Court has prima facie jurisdiction under the Genocide Convention .
- The Court did not rule on whether genocide had occurred.
The ICJ issued binding provisional measures:
- Israel must prevent genocidal acts and punish incitement to genocide.
- Ensure humanitarian assistance reaches Gaza.
- Later, also halt the offensive in Rafah and reopen crossings for aid .
2.6 ICJ Decision on Provisional Measures (26 January 2024)
- Jurisdiction: Prima facie jurisdiction under Article IX of the Genocide Convention recognized.
- Plausibility: Claims meet the low threshold for provisional measures.
2.7 Orders:
- Israel must prevent acts potentially constituting genocide.
- Ensure punishment for incitement to genocide.
- Facilitate humanitarian assistance, including reopening crossings.
- Later measures included halting operations in Rafah.
2.8 Reasoning:
- Urgent humanitarian risks justify provisional measures; decision does not determine merits of genocide allegations.
- Judicial Support: 15 out of 17 judges agreed on provisional measures, reflecting strong judicial consensus.
- The ICJ applied the plausibility standard, which is intentionally low and serves only to assess if the rights claimed are sufficiently arguable to justify urgent protective measures .
- It emphasized the urgent humanitarian risks faced by Palestinians in Gaza and its role in preventing potential genocide .
3.1. Analysis:
Jurisdiction: Clear legal basis under Genocide Convention and ICJ Statute; no reservations impede adjudication.
Standing: South Africa fulfills locus standi requirements via obligations erga omnes and erga omnes partes.
Dispute Existence: Established through formal communications, public statements, and ongoing military operations.
Provisional Measures: Illustrate ICJ’s role in urgent humanitarian protection; threshold is deliberately low.
Challenges: Final determination of genocidal intent is difficult; Israel’s non-compliance complicates enforcement.
3.2 Current Status & Outlook:
- Israel continues military operations, largely ignoring ICJ orders.
- International community involvement is increasing, with potential third-party interventions.
- Preliminary objections may be filed; merits stage will include evidence, witnesses, and expert testimony.
- Final judgment is expected late 2027–2028, potentially setting a precedent for ICJ genocide adjudication in ongoing conflicts.
3.3.Summary Table:
Component Details
Facts South Africa alleges genocide by Israel in Gaza, files case 29 Dec 2023 under Genocide Convention
Issue Jurisdiction + plausibility of genocide claims; genocidal intent requirement
SA’s Argument Israel commits genocidal acts/intents; blocking aid; jurisdiction plausible
Israel’s
Argument Self-defense; no genocidal intent; jurisdiction dispute; claims exaggerated
Judgment Provisional measures granted; no determination of actual genocide
Reasoning Low plausibility threshold met; urgent humanitarian context justifies measures Israel non-compliant; case proceeding, interventions from other states; final
Outlook
ruling late 2027+
Conclusion:
South Africa v. Israel represents a landmark ICJ case addressing:
- The application of the Genocide Convention to ongoing hostilities.
- The scope of state obligations under erga omnes principles.
- The ICJ’s authority to issue urgent provisional measures to prevent potential mass atrocities.
While the Court has recognized prima facie jurisdiction and plausibility of South Africa’s claims, the determination of genocidal intent and ultimate merits remain pending. The case underscores the tension between humanitarian law, state sovereignty, and accountability in contemporary conflict situations.
Reference(S):
ICJ Statute, Article 36(1)
Convention on the Prevention and Punishment of the Crime of Genocide, Articles I, II, IX ICJ, Order on Provisional Measures, 26 January 2024
Gambia v. Myanmar, ICJ, 2019
United Nations reports on Gaza (2005–2023)
International Committee of the Red Cross, 2023dens
