The International Court of Justice (ICJ) commenced hearing South Africa’s genocide case against Israel Thursday (January 11). Here is a quick summary of the proceedings from Day 1, in which South Africa presented its case that Israel is commiting genocide in Gaza. Israel is set to respond on Friday. What is the case before the World Court? South Africa brought a case against Israel to the ICJ on December 29, under UN’s 1948 Genocide Convention. In its application, South Africa argued that Israel, in its ongoing Gaza assault, has transgressed from the provisions of Article 2 of the Convention. This article defines the term “genocide” to mean “acts committed with intent to destroy, wholly or partly, a national, ethnic, racial, or religious group”. The ICJ will eventually decide whether Israel is committing genocide or not — this may take years. But first, it will decide whether it has jurisdiction on this matter, and whether the alleged acts fall under the 1948 Convention. South Africa has also sought interim relief for the Palestinians, and asked the ICJ to order Israel to immediately suspend all military operations in Gaza, as an interim measure. The court is likely to rule on this in a matter of weeks. While the court’s rulings are legally binding, it has no way to enforce them. Nonetheless, its opinions carry weight with the UN and other international institutions. What were South Africa’ arguments? The South African legal team, is led by John Dugard, a former UN special rapporteur on human rights in the occupied Palestinian territories, and comprises Adila Hassam, Tembeka Ngcukaitobi, and Max Du Plessis, with Blinne Ni Ghralaigh and Vaughan Lowe providing external counsel. Alongside the country’s Justice Minister Ronald Lamola, and ambassador to the Netherlands, Vusi Mandonsela, the team laid out a detailed case against Israel. ‘Israel’s response to the October 7 attack has crossed this line’ While acknowledging that South Africa “unequivocally” condemned the targeting of civilians by Hamas on October 7 last year, justice minister Ronald Lamola argued that despite this, “no armed attack on a state territory, no matter how serious,” could serve as a justification for the Convention’s breach by Israel. “Israel’s response to the October 7, 2023, attack has crossed this line and given rise to breaches of the convention,” he said. ‘Israel’s acts must be seen in context of 76-year occupation’ South Africa’s ambassador to the Netherlands, Vusi Mandonsela, stated that his country placed Israel’s “genocidal acts and omissions” within the context of Israel’s 76-year occupation and a consequent 16-year siege of the Gaza Strip, labelling it as a “silent killer” of people. Max du Plessis would later emphasise on this point. “What is happening in Gaza now. entails destructive acts perpetrated by an occupying power, Israel, that has subjected the Palestinian people to an oppressive and prolonged violation of their rights to self-determination for more than half a century. Those violations occur in a world where Israel, for years, regarded itself as beyond and above the law,” he said. ‘First genocidal act is mass killing of Palestinians in Gaza’ Adila Hassim laid out the basic charges of genocide against Israel, arguing that Israel’s “actions show systematic patterns of conduct from which genocide can be inferred.” Israel’s “first genocidal act is mass killing of Palestinians in Gaza”, Hassim argued, while showing photos of mass graves where bodies were buried. “No one is spared. Not even newborns. UN chiefs have described it as a graveyard for children,” she said. ‘Bodily and mental harm the second genocidal act’ Hassim argued that ‘the suffering of the Palestinian people, physical and mental, is undeniable’, and constitutes Israel’s “second genocidal act” under Article 2B of the Genocide Convention. She said that as a result of Israel’s attacks, thousands of Palestinian women and children have been wounded and maimed, all while the healthcare system has all but collapsed. Moreover, Israeli forces have inflicted untold mental trauma on Palestinians, children included, who have been “arrested, blindfolded, forced to undress and loaded onto trucks and taken to unknown locations.” ‘Genocidal rhetoric by top Israel leaders, including Netanyahu’ “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent,” Tembeka Ngcukaitobi said, adding that “these statements were repeated by Israeli troops as they wreaked havoc on the people and infrastructure of Gaza.” He specifically cited statements by the likes of Israel Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as he argued that Israel’s “intentional failure to condemn, prevent, and punish genocidal incitement” was a “grave violation” of the 1948 Convention. ‘Genocide convention envisions state acting on behalf of international community’ John Duggard addressed the question of jurisdiction. “State parties to this Convention are obliged not only to desist from genocidal acts but also to prevent them,” he stated. He said that obligations under the Genocide Convention are “erga omnes, obligations owed to the international community as a whole”, and thus South Africa is very much justified in raising the issue in the ICJ. Max Du Plessis later argued that “South Africa has an obligation to prevent genocide, including by taking all reasonable measures within its powers.” ‘Urgent need for provisional measures to protect Palestinians’ Blinne Ni Ghralaigh described the continuing plight of Gaza to highlight the “urgent need for provisional measures to protect Palestinians in Gaza from irreparable prejudice caused by Israel’s violation of the genocide convention”. She specifically pointed to public health disaster unfolding in Gaza, saying that “experts warn that deaths from starvation and disease risks are significantly outnumbering deaths from bombings.” Vaughan Lowe later cited ICJ jurisprudence to argue that South Africa’s case has met requirements for provisional measures, while reminding the court that the merits of the case can be decided at a later stage. ‘As a matter of law. South Africa cannot request an order from this court against Hamas’ Lowe also answered why South Africa has not filed a case against Hamas — likely pre-empting one of Israel’s arguments. “Hamas is not a state and cannot be a party to the Genocide Convention and cannot be a party to these proceedings.”
