Written by Paulina Guerrero, thinc. researcher
In December 2023, South Africa initiated proceedings against Israel before the International Court of Justice (ICJ) in The Hague on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip. South Africa instituted the proceedings by filing a request to the Court for provisional measures against Israel alleging violations by the latter of its obligations under the 1948 Genocide Convention towards Palestinian people in the Gaza Strip.
Provisional measures
What initially may have been seen as a quick way of getting the Court to pronounce itself on the matter and obtain a prompt legal remedy has turned into an ongoing procedure of over a year in which most new updates have just been the filing of more documents or the intervention of some new country. This is mainly because, although the Court issued a provisional measures order on the 26th of January 2024, these were not satisfactory enough for South Africa who in turn requested the Court to order additional measures three times.
The last order issued by the Court on the 24th May 2024, in response to the request for modification of its previous order issued on the 28th March, at South Africa´s request ordered Israel to cease military operations in Rafah citing the “disastrous conditions of the Palestinians” although this was subject to different interpretations. Israel argued that the Rafah campaign was necessary to rescue the 132 hostages who were “languish(-ing) in Hamas’ tunnels” and that if the Court ordered a cessation “Hamas would be left unhindered and free to continue its attacks against Israeli territory and Israeli civilians”. Israel also stated that its military action in Rafah had the purpose of protecting its civilians and rescuing the Israeli hostages still held by Hamas and other armed groups. The Court refused South Africa’s demand that Court order a cessation of hostilities; instead it ordered that Israel shall –
“Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”; and “Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance”.
Israel’s claims have subsequently been vindicated; in August 2024, the IDF found the bodies of six hostages taken on October 7th in a tunnel in Rafah
The Court has not decided whether Israel is committing genocide
So far, the Court has not actually pronounced itself on whether Israel´s military operations are officially a genocide, nor has it ordered Israel to cease its military operations completely. However, it has been receiving an immense amount of pressure from South Africa and its allied countries who have intervened in the case (under Articles 62 and 63 of the ICJ Statute) amongst which are Nicaragua, Colombia, Libya, Mexico, Palestine, Spain, Turkey, Chile, the Maldives, Bolivia, Ireland, Cuba, and Belize.
What is remarkable about these intervention requests is that these countries, particularly South Africa itself and Ireland, are requesting the court to expand its interpretation of genocide.
Attempts to broaden the scope of the Genocide Convention
As it is well known, the official definition of genocide is laid down in the 1948 Genocide Convention, which this case is based on. The Court shed light on its interpretation in the previous cases involving Serbia during the Yugoslav wars, namely Bosnia and Herzegovina v. Serbia (2007), in which the Court established a high threshold for proving genocide and did recognise the Srebrenica massacre in 1995 as such.
While Ireland does, in its Intervention, condemn the 7th of October attacks and recognises that actions by Hamas such as murdering civilians, taking hostages, and even using human shields, are grave violations to international law, it does not seem to be taking those into account when asking the Court to expand the interpretation of genocide. Ireland submits that “in the absence of direct evidence of a policy or campaign, this element of the internationally wrongful act of genocide may be established by consideration of indirect or circumstantial evidence. This includes evidence of a general pattern of widespread and systematic acts directed at the protected group which leads to their destruction, in whole or part, from which it can be inferred that the said destruction was the intended result or foreseeable consequence.”[1]
While the Palestinian people of Gaza are indeed a protected group like any other under the 1948 Genocide Convention, the humanitarian crisis has been caused by the armed conflict between Hamas and Israel. South Africa and Ireland, in particular, appear to be requesting an expansion of the interpretation of the term genocide just so that Israel´s actions can fit in it. This risks potentially distorting the interpretation of international law to suit a particular situation rather than vice versa; in this way, the crime of genocide becomes a malleable term, allowing the Court to ignore the intention of the drafters of the Convention, and requiring it to take account of broad (and controversial) historical narratives.
As the legal procedure currently stands, South Africa was requested by the Court to present a memorial document detailing the evidence supporting its claims. South Africa submitted this document on the 28th of October 2024 consisting of 750 pages plus 4,000 additional pages of annexes in which South Africa affirms to contain evidence of “how the government of Israel has violated the genocide convention by promoting the destruction of Palestinians living in Gaza, physically killing them with an assortment of destructive weapons, depriving them access to humanitarian assistance, causing conditions of life that are aimed at their physical destruction” and “that undergirding Israel’s genocidal acts is the special intent to commit genocide.”[2]
Nevertheless, South Africa also claims in its statement that “[t]he Palestinian struggle against imperialism, Israeli apartheid and settler colonialism is the daily reality of the Palestinian people. Since 1948, they have faced various forms of colonisation […]”. This is a contentious historical assertion; far from merely criticising the Israeli government´s current actions, South Africa is attempting to broaden the scope of the inquiry, suggesting South Africa’s real intention is to delegitimising the State of Israel´s existence. Taking this broad historical inquiry into account might compromise the integrity of the evidence South Africa submitted to the Court.
Current status of the proceedings
The Memorial South Africa submitted in October 2024 has not been made public; it is currently only in the hands of the Court. The published deadline fixed for Israel to respond with its own counter-memorial is July 2025.
[1] Para.34 of Ireland’s Declaration of Intervention.
[2] https://dirco1.azurewebsites.net/dircoenewsletter/newsflash643-31-10-2024.html
