An Examination of South Africa’s Genocide Case Against Israel

On December 29, 2023, the Republic of South Africa filed a case in the International Court of Justice (ICJ) against the State of Israel. The case accuses Israel of violating the Convention on the Prevention and Punishment of the Crime of Genocide, or the Genocide Convention, due to the actions undertaken by Israel within Gaza..The case has been condemned and rejected by Israel's allies and welcomed, even celebrated, by Israel's opponents. The historic case has witnessed several hours-long court battles and has drawn in nations from all over the world who have applied to join it to support their chosen side. The ICJ has issued several orders against Israel, some of which continue to go unfulfilled..The case has undergone a number of changes since it was first filed, and changes continue to take place today. So where does the case stand now? How does this differ from when it was first filed, who has gotten involved, and what are the consequences of both the orders instated and the case as a whole?.This article serves to answer these questions, but first, let's take a look at what the ICJ actually is..What is the ICJ?.The International Court of Justice, sometimes called the World Court, is the top court of the United Nations (UN). It is one of six UN bodies and the only one located outside of New York, with the ICJ based in The Hague, Netherlands. The ICJ typically handles disputes between nations, such as the present case, which is a dispute between Israel and South Africa..All UN member states may submit cases to the ICJ, just as all UN member states are technically bound by any decision the ICJ reaches..The ICJ is not to be confused with the International Criminal Court, the ICC, which is also based in The Hague. The ICC handles cases of war crimes, genocide, the crime of aggression, and crimes against humanity that are perpetrated by individuals. The ICC is an intergovernmental agency, and is based upon the Rome Statute, a treaty that outlines a series of specific crimes that fall under the umbrella of war crimes, genocide, crimes against humanity, and the crime of aggression..Further different than the ICJ, the Rome Statute is ingrained into the legal system of signatory states, and thus any decisions reached by the court, or arrest warrants issued by the court, legally obligate member states to adhere to them. One such warrant issued by the ICC last year against Russian President Vladimir Putin prevented him from traveling to the BRICS summit in South Africa, as South Africa has ratified the Rome Statute..While the ICC has had its own hand in the present conflict, the two courts are not related to each other, as is shown with the differences outlined above..An Evolving Case in an Active Conflict.As the case filed by South Africa tackles an ongoing conflict, the proceedings have changed distinctly from when it was first filed. While the general accusation of genocide against Israel remains, South Africa has requested on several occasions, as they did in their initial filing, different provisional measures (orders from the court) to be instated against Israel..South Africa requested additional provisional measures in response to major changes in the conflict. While Gaza today looks significantly different than it did in January, two particularly notable aspects have developed since the initial case filing that have spurred further requests for provisional measures and additional intervention from foreign nations: reports of famine-like conditions in several areas of Gaza and the beginning of Israel's offensive upon the southern Gaza city of Rafah. These two aspects raised considerable concern from South Africa, as well as many other foreign entities, who joined South Africa in filing further provisional measures in response to these developments..While Gaza has long suffered from food insecurity, with pre-war Gaza receiving an average of 500 trucks of aid per day, the situation deteriorated rapidly with the outbreak of the war. Food insecurity is the worst within northern Gaza, where the population has been cut off from aid from UNRWA, the primary source of aid within Gaza, since January..As the conflict exacerbated food insecurity and the ability of aid groups to reach the areas in need, reports of famine began to emerge from the Gaza Strip..The Integrated Food and Security Phase Classification (IPC) projected in February that famine would set in the north between March and May. These conditions are believed to have now set in, with 100 percent of the population reported to be experiencing some level of hunger. Amidst the reports that famine was no longer on the horizon, and was now a current problem, South Africa requested additional provisional measures in March. The court agreed with the IPC reports, stating that "the court observes that Palestinians in Gaza are no longer facing only a risk of famine … but that famine is setting in.".The measures, which the court permitted, were largely aimed at improving the access and supply of humanitarian aid to Gaza in order to alleviate famine conditions. In addition to the expansion of humanitarian aid, Israel was also to ensure "that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza," as well as submit a report on its adherence to the ICJ's orders, one month after the date the order was given..Despite the order, Israel has continually been accused of obstructing aid. The accusations were renewed in the most recent hearing of the case, which was prompted by South Africa requesting additional provisional measures on May 10, which itself was prompted by Israel's offensive into Rafah three days prior, on May 7..The Israeli invasion of Rafah, a city at the very south of the Gaza Strip, is one of the most important events of the war thus far..Several nations, including the US, condemned and warned against the very prospect of the invasion..Israel established Rafah as a safe zone earlier in the war, and so the city drew in people fleeing attacks within the north and central regions of Gaza. As such, the city became host to approximately 1.4 million displaced persons and held within it some of Gaza's largest remaining hospitals. Furthermore, the city was vital to humanitarian efforts in Gaza due to the Rafah border crossing, linking Gaza with Egypt, and had been the primary entry point of aid into Gaza for much of the war..Due to the city's high civilian population, as well as its importance in humanitarian efforts, many condemned Israel's plans to invade the city. However, Netanyahu remained insistent that such an operation was necessary, claiming that Rafah held within it Hamas' last remaining battalions, as well as a majority of the remaining hostages that were still held by Hamas. The bombing of Rafah began on May 7, just 15 hours after evacuations of the city were ordered..Notably, the beginning of Israel's operation in Rafah came with their seizure of the Rafah border crossing. Since Israel took control of the crossing, which gave them control over all entry and exit points into/out of Gaza, it has remained closed. The closure of the crossing quickly affected humanitarian aid supplies in Gaza, as the other crossings Israel maintains have not kept up..The beginning of the Israeli operation in Rafah prompted South Africa to request more provisional measures. First, a halt to Israel's invasion of Rafah. Second, for Israel to expand humanitarian aid to Gaza, and also grant unimpeded access to humanitarian organizations, including the UN, investigators, journalists, and "internationally mandated bodies or officials." In addition, Israel was again to submit a report on not only its adherence to these new orders, but also to previous orders..During the court hearings for the requested measures, South Africa altered their request, instead demanding an order to end Israel's offensive altogether..The court did not order Israel to halt the war but did permit South Africa's initial requests, including the order for Israel to halt its offensive into Rafah. This offensive has, of course, not stopped, leaving Israel in violation of the order..Prior to the beginning of Israel's operation, US officials had described a major operation in Rafah as a "red line," stating that if the line were crossed, the administration would consider limiting weapons deliveries to Israel. US officials have recently stated they do not believe Israel's operation thus far in Rafah to be a "major ground operation" that would cross the red line..The UN Office for the Coordination of Humanitarian Affairs (OCHA) recently reported that less than 100,000 civilians remain in Rafah, down significantly from the 1.4 million that resided there just over a month ago, as they have evacuated to areas northward, primarily around Khan Younis..The provisional measures requested in May were the last hearing on the case. Though several nations have since applied to intervene, or stated their intention to, the case has yet to move forward..South Africa's Goals in the ICJ Case Are Only Partially Fulfilled.South Africa initially requested nine provisional measures against Israel. The first was a complete halt to Israel's military offensive in Gaza. The remainder focused on the prevention of genocide, ceasing and enacting punishment for public incitement to genocide, preserving evidence related to the allegations leveled against them and allowing for the entrance of fact-finding missions to Gaza, refraining from taking action "which might aggravate or extend the dispute before the Court," as well as submitting a report regarding Israel's adherence to these measures..Missing from the provisional measures requested in the initial filing was a request for Israel to expand humanitarian aid into Gaza..Notably, within the first hearings on South Africa's request for provisional measures, the court established the "plausibility" of genocide. This establishment, neither a confirmation nor a denial of South Africa's accusations, was necessary to continue the case in order to determine its validity..A number of these provisional measures, most importantly the request for Israel to halt the war, were denied, However, the ICJ did order Israel to take "all measures" in order to prevent genocide, ordered the same for the IDF, ordered Israel to prevent and punish within its power any public incitement to genocide, including those by high ranking Israeli officials, and ordered Israel to ensure the establishment of basic services in Gaza, and the facilitation of humanitarian aid..Many of these initial provisional measures sought by South Africa were not present in South Africa's future requests. While South Africa maintained their accusations of genocide, additional measures primarily focused on requesting court orders for Israel to expand aid into Gaza, amidst the reports of famine and the collapse of Gaza's healthcare system..Further, several of South Africa's additional requests did not repeat the request to order Israel to end the war. This request only surfaced again in the hearing on the most recent request for provisional measures on May 16th..In the long term, South Africa is seeking a court decision directly stating that Israel is, in fact, committing genocide..South Africa has accused Israel of violating "Articles I, III, IV, V and VI, read in conjunction with Article II" of the genocide convention. The specific articles may be read below:.Article I:The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.Article II:In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.Article III:The following acts shall be 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.Article IV:Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.Article V:The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.Article VI:Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction..South Africa's specific accusations of Israel's violations of each individual article may also be read below:.(a) failing to prevent genocide in violation of Article I;(b) committing genocide in violation of Article III (a);(c) conspiring to commit genocide in violation of Article III (b);(d) direct and public incitement to commit genocide in violation of Article III (c);(e) attempting to commit genocide in violation of Article III (d);(f) complicity in genocide in violation of Article III (e);(g) failing to punish genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, in violation of Articles I, III, IV and VI;(h) failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide, and complicity in genocide, in violation of Article V; and(i) failing to allow and/or directly or indirectly impeding the investigation by competent international bodies or fact-finding missions of genocidal acts committed against Palestinians in Gaza, including those Palestinians removed by Israeli State agents or forces to Israel, as a necessary and corollary obligation pursuant to Articles I, III, IV, V and VI.South Africa's stated reason for filing the case was its obligation as a party to the UN Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG; Genocide Convention). In turn, Israel has accused South Africa of abusing both the ICJ and the Genocide Convention, antisemitism, and attempting to assist Hamas with the case..Upon announcing Israel's intent to dispute the case, former Israeli Government Spokesman Eylon Levy stated that Israel would fight to "dispel South Africa's absurd blood libel," and claimed that the filing made South Africa "criminally complicit with the Hamas rapist regime.".So far, rulings have only taken place in the case regarding the requested provisional measures. The court has not delivered any rulings affirming or rejecting South Africa's accusations of genocide. The case to determine this could take several years..South Africa and Israel's Arguments.While the arguments from both nations have been extensive and highly detailed, they can be summarized into a few key points..South Africa argues that the "state of siege" that Israel enacted upon Gaza, which includes the restriction of food, water, electricity, medicine, and fuel supplies is intended to enact great harm upon the population of Gaza. They evidence this through a number of different manners, in particular, the early days of the war when Israel cut off the water supply to Gaza, and since then, continued accusations that Israel is heavily restricting aid supply into Gaza..South Africa has also remained insistent that Israel's actions go beyond the realm of self-defense..Further, South Africa has accused Israel of attempting through their bombing and general military campaign to cause mass displacement of Palestinians, destroy cultural and religious sites, destroy Gaza's healthcare system through attacks on health infrastructure and personnel, and destroy education infrastructure. This is excluding the mass infrastructure damage caused to residential areas..In addition, South Africa has accused a number of prominent Israeli officials, including Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, of inciting genocide..All of these things added together, South Africa claims, evidence genocidal intent and genocidal action..In turn, Israel has remained insistent that it is exercising its right to self-defense, emphasizing that the present war began on October 7 when Hamas attacked Israel. It argues that its actions have fallen within this right and that any order for them to halt their military offensive in any capacity would be a violation of their right to defend themselves..Israel has accused South Africa of attempting to aid Hamas, and stated that the court case makes South Africa complicit in the crimes of Hamas. They claim South Africa's case to be one-sided, ignoring not only the October 7 attacks but also the continued rocket fire against Israel, particularly noting that this rocket fire has forced the displacement of tens of thousands of Israeli civilians living in villages and towns in proximity to Gaza..Israel has also claimed that many of the civilian casualties and infrastructure damage incurred in the war are a result of Hamas' military tactics of fighting in civilian areas, and that while civilian deaths are tragic, they are a mere fact of war and not evidence of genocide..Regarding the accusations of blocking or restricting humanitarian aid, Israel has instead claimed that it has expanded it. Notably, Israel has opened several new crossings and processing centers to facilitate increased aid delivery, though their effectiveness has been disputed..Further, Israel has stated it takes extensive measures to attempt to reduce civilian casualties, namely through dropping leaflets, establishing humanitarian zones, publishing evacuation routes, making phone calls, sending text messages warning of impending attacks, and more..These two particular aspects, the claimed expansion of aid and the measures to reduce civilian casualties, Israel says are not measures a state committing genocide would take..Lastly, Israel has argued that any provisional measures to halt the war will only apply to Israel, while Hamas will be free to continue attacks against Israel. As a non-state entity, Hamas is not technically bound by any decisions the ICJ might make. As such, Israel claims that Hamas would simply rearm and launch further attacks against Israel in the event that Israel is forced to halt their war effort prior to the complete destruction of Hamas..Foreign Reactions.Various countries around the world have either condemned or celebrated the case. Several countries have also filed official applications to the ICJ to intervene in the case or have stated their intention to do so. Below is a summary of the most notable foreign reactions, as well as all nations that have applied to intervene or stated their intention to intervene..*Note that there are two kinds of intervention allowed in the ICJ, under Article 62 of the Statute of the Court, and under Article 63. As per the UN, "if a country other than the original parties has an interest of a legal nature for a given case, it can request to participate under Article 62 of the Statute of the Court.".Again as per the UN, "the other form of intervention is linked to Article 63 of the Court's Statute, regarding the "construction of a convention to which States other than those concerned in the case are parties is in question" (in this case the Genocide Convention), any State, signatory to the convention, has the right to intervene in the proceedings. If a State uses this right under Article 63, the judgment of the Court will be equally binding to them.".The United States:.Shortly after the case was filed, prior to any ruling on it, US State Department Spokesman Matthew Miller said that the case was "meritless, counterproductive and completely without any basis in fact whatsoever.".The US has joined Israel in wholly rejecting and condemning the case and the accusation of genocide. The US has reiterated this viewpoint on several occasions, stating that while "there are military operations going on that put Palestinian people at risk," that they in no way constitute genocide..The US has not applied to intervene in the case, nor stated their intention to do so..Germany:.Other than the US, Germany has been one of Israel's most staunch supporters during the conflict. As such, Germany announced their intention to intervene on January 15, just a few days after the first hearings on South Africa's request for provisional measures..Germany became the first country to state their intention to intervene in the case, and perhaps most notably stated their intention to intervene on the side of Israel..Despite having stated their intention to join several months ago, Germany has yet to file a formal application for intervention..Nicaragua:.Nicaragua, having accused Israel of genocide multiple times prior, became the first nation to formally apply to intervene in the case. Nicaragua applied under Article 62..Notably, Nicaragua has also created a secondary case against Germany, where they accused Germany of complicity in Israel's alleged genocidal action through Germany's military, political, and financial support of Israel, as well as the halt of Germany's funding to the UNRWA..Nicaragua sought provisional measures to order Germany to halt its supply of military equipment to Israel, ensure any weapons previously transferred are not used in genocidal acts, comply with its obligations under humanitarian law, and resume its funding of UNRWA..The ICJ rejected all of Nicaragua's provisional measures, however, the case which accuses Germany of complicity in Israel's alleged genocidal actions still stands..It is important to note that Nicaragua's case against Germany is in large part based upon the court's determination of the "plausibility" of genocide..Colombia:.Colombian President Gustavo Petro has been one of the most vocal critics of both Israel and Netanyahu specifically. On numerous occasions he has referred to Israel's actions in Gaza as genocidal, even going so far as to compare it to the Holocaust..Colombia became the second nation to formally apply to intervene in the case on April 5th, and the first to apply under Article 63..Beyond their application to intervene in the case, Colombia has also taken a series of actions against Israel that are outside the realm of the ICJ. Namely, Colombia has ceased arms purchases from Israel, followed by a complete suspension of relations with Israel..Egypt:.While Egypt has yet to file a formal application to intervene in the case, they have stated their intention to do so. Egypt is particularly significant due to its relationship and history with Israel, its involvement in Gaza both during and before the war, and its shared border..Egypt was the first Arab state to sign a peace deal with Israel and issue a recognition of the Israeli state. As such, continued relations between Israel and Egypt are pivotal in Israel's efforts to normalize relations with other Arab states..Egypt not only accusing Israel of genocide but also seeking to join the case against it serves to sour those relations significantly and harm Israel's normalization efforts more than they already have been with the present war..Beyond this, Egypt has previously accused Israel of attempting to drive Palestinian refugees across its borders. These accusations came as Israel had started their offensive in the north, which pressured Palestinian civilians south, towards the Egyptian border. Egypt has increased its border security and has not allowed refugees to enter its borders except for a small amount requiring medical aid..Egypt has also cooperated with Israel against Hamas prior to the current conflict. Egypt had been a participant in Israel's blockade of Gaza which has been in place since 2007, when Hamas seized full control over the Gaza Strip..In a post-war setting, it is unlikely that Egypt would cooperate with Israel in the same capacity they had prior to the war..Nations which have applied to intervene, or stated their intention to intervene:.Germany has stated their intention to intervene, on the side of Israel;Nicaragua has formally applied to intervene, on the side of South Africa, under Article 62;Belgium has stated their intention to join, on the side of South Africa;Colombia has formally applied to intervene, on the side of South Africa, under Article 63;Turkey has stated their intention to join, on the side of South Africa;Libya has formally applied to intervene, on the side of South Africa, under Article 63;Egypt has stated their intention to intervene, on the side of South Africa;Maldives has stated their intention to, on the side of South Africa;Mexico has formally applied to intervene, on the side of South Africa, under Article 63;Ireland has stated their intention to intervene, on the side of South Africa;Chile has stated their intention to intervene, on the side of South Africa;The State of Palestine has formally applied to intervene, on the side of South Africa, under both Article 62 and Article 63;Spain has stated their intention to intervene, on the side of South Africa..To date, all states which have submitted formal applications for intervention have done so in support of South Africa. The ICJ has yet to permit any of the nation's intervention..The Ramifications and Consequences of the Case.There are, of course, both short and long-term consequences for the case..Within the short term, the ICJ's orders are an immediate consequence brought against Israel. Beyond this, however, Israel has continually been accused of ignoring the ICJ's orders. This can be evidenced by Israel's operations in Rafah being ongoing, despite the ICJ ordering them to halt operations in the city..The ICJ has no enforcement mechanism. While its rulings may technically be binding, it cannot feasibly do anything to ensure that a state will follow its orders. As such, the ICJ is largely reliant upon the political weight of its decisions as the UN's top court in order to pressure countries into adhering to its rulings..However, some of its rulings have been ignored by the target nation..Technically speaking, this could open that state up to sanctions from the UN. While this is already unlikely to take place, the US would be likely to veto any attempt by the UN to implement sanctions against Israel..This does not prevent individual states from implementing sanctions against Israel..In the long term, if Israel were to be found guilty of committing genocide, this would be the very first time a state has been found guilty of genocide in the ICJ. The closest that the ICJ has come to ruling a state has committed genocide was in 2007, when the court found that Serbia had "violated the obligation to prevent genocide" in the 1995 Srebrenica massacre in Bosnia..A court declaration that Israel has, in fact, committed genocide in Gaza would stand to isolate them on the world stage further, more so than they already have been by the divisive nature of the war itself, which has resulted in a number of nations suspending relations with Israel, recalling their ambassadors, or taking other diplomatic actions..Further, this could complicate arms transfers and sales to Israel. The 2013 Arms Trade Treaty (ATT) prohibits the sale of arms to states or entities that are committing "genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.".If Israel were to be found guilty of committing genocide, it would be unlawful under the ATT to transfer or sell arms to them. Nicaragua argued in its case against Germany that present transfers to Israel would be in violation of international law. However, the ICJ rejected this notion when they permitted Germany to continue selling military equipment to Israel..If Israel were to be found guilty of committing genocide by the ICJ and a nation continued with arms sales or transfers to Israel anyway, not only would it be in violation of international law, but it would also serve to isolate them on the world stage, with the diplomatic repercussions of selling arms to a nation found guilty of genocide..The full effects of this case are yet to be seen, and Israel and South Africa are locked into a long court battle in a historic case that is drawing in nations from around the world. As nations deliberate applications for intervention, the ruling that the ICJ makes on the case will affect the entire world.