South Africa v. Israel at the ICJ: History in the Making

South Africa v. Israel at the ICJ: History in the Making

Theodora Terracina
A scene depicting the Israel-Hamas War as bombs and rocket fire are exchanged. Source: AP News

“Gaza has become a place of death and despair.”  – Tembeka Ngcukaitobi.

The Israel-Hamas conflict has crossed the 100-day mark, and there seems to be nothing stopping it. This has shocked the international community and raised concern amongst the nation’s party to the 1948 Genocide Convention. As per the rules of the convention, South Africa has taken Israel to the International Criminal Court of Justice. Holding a public hearing on January 11th and 12th in the Hague, South Africa alleged Israel of violating the Genocide Convention. Acting as rightful ‘guardians’ of the authority of the Convention and assuming a position on behalf of the geopolitical community, South Africa took this course of action to request immediate indication for provisional measures and a prompt cease of Israel’s military actions. 

Background

When a brutal surprise attack by the militant group governing Gaza known as Hamas, hit Southern Israel on October 7th killing over a thousand people and taking 240 hostages, Israel responded swiftly – first by air, with heavy bombardment and rocket exchange, then by ground invasion on October 27th. Reaching an excruciating death toll in Gaza surpassing 25,000 people as of January 21st, as well as an internal forced displacement of 1.9 million people, multiple forces within the academic community, as well as the international political sphere, have categorized this war as a Genocide being perpetrated onto the Palestinian people by the Israeli government. an alarm has been sounded within the international community. With this case at the ICJ, South Africa became the first country to publically take a stand to categorize this conflict and call for measures to ensure its end.

With both countries signatories of the Convention on the Prevention and Punishment of the Crime of Genocide (simply put, the Genocide Convention), South Africa presented its case invoking the terms of Article 9, which lays out guidelines for a court case. It states that any dispute amongst contracting parties concerning the Convention’s interpretation, application, or fulfillment, presents the rightful duty and authority to submit a case to the highest organ of the UN, the ICJ, to prevent or suppress the acts of genocide listed within the convention. For two days, the public hearing listened to the opening presentation by South Africa and the subsequent defensive case made by Israel.

Though the deliberation by the panel of judges at the ICJ could take years to reach an ultimate decision, the symbolic act alone of presenting a case against Israel gives credible and lawful consideration to the accusation of genocide. Through the assertion that Israel is violating numerous acts of the Genocide Convention (2a through 2d), South Africa opened the floor with Mr. Vusimuzi Madonsela, the Agent of South Africa. 

Day 1: South Africa

The Nakba, which translates to “catastrophe” in Arabic, refers to the violent process of mass displacement and dispossession of the Palestinian people that began at the time of the Arab-Israeli War in 1948. On January 11th, 2023, South Africa’s first speaker to present their case was Mr. Vusimuzi Madonsela, who initiated by recognizing this ongoing and lasting ‘Nakba’ of the Palestinian people, since Israel’s inception. Through a 75-year apartheid, 56-year occupation, and a 16-year siege imposed on the Gaza strip, Madonsela condemns the systematic human rights violations committed by Israel and asserts that the country’s strengthened desire to commit international crimes in Palestine can now be classified as a genocide that has been continuous since 1948.

Ronald Lamola, the South African Minister of Justice, and the South African Ambassador to the Netherlands, Vusimuzi Madonsela. Source: CNN

As the Minister of Justice and Correctional Services of South Africa, Ronald Lamola proceeds next to take his place at the podium, he reiterates that this process of death and destruction did not begin on October 7th with the attacks led by Hamas. While condemning the classified terrorist organization’s actions, Lamola declares that no armed attack, no matter the severity, justifies the transgression of a document as sacred as the convention; “Israel’s response has crossed this line.”

Defining This War: Placing Genocide at the Forefront

In all, the team forming a legal counsel for South Africa proposes the case of Genocide committed by Israel and provides extensive proof of its occurrence in the face of the law. Doctor Adila Hassim, Advocate of the High Court of South Africa and Senior Counsel, begins by asserting that Israel has transgressed Article II of the Genocide Convention and illustrates the context in which these acts have taken place. Alleging Israel of violating acts 2a through 2d of the Genocide Convention, Hassim best describes the circumstances of genocide by prefacing Israel’s total and utter command of the Gaza Strip, leading many to coin the term “open-air prison” when referring to the area, and lists the statistics of the toll of destruction from the beginning of the war on October 7th.

23,210 Palestinians killed, 6,000 bombs per week in the aftermath of October 7th, unidentified bodies buried in mass graves, and 7,000 Palestinians missing under rubble presumed dead – she quantifies the first violation: the mass killing of Palestinians in Gaza.

She continues to the second: the infliction of serious bodily or mental harm to Palestinians in Gaza, violating 2b of the Convention, where she describes 60,000 Palestinians maimed and wounded and refers to the infamous photos spread across the internet of Palestinians forcibly undressed, arrested, blindfolded, and taken on trucks. 

The third violation under 2c of the Convention is the deliberate imposition of conditions on Gaza that cannot sustain life that is calculated to bring about its physical destruction. Hassim references the forced displacement of 85% of the population, the widespread hunger, starvation, and dehydration that is leaving 93% of the Gazan population to face crisis levels of hunger, the denial of humanitarian supplies to hospitals, and the deliberate shortage of adequate shelter, clothing, bedding, sanitation, medical care, or clean water. 

Lastly, Hassim outlines the violation of 2d: imposing measures intended to prevent births within the group, utilizing evidence of reproductive violence perpetrated by Israel and the blockades of life-saving aid for those who are delivering children. 

Having painted the gruesome picture of Gazan’s daily reality, Hassim closes her argument having depicted what she believes to be, a justifiable and plausible case of genocide and promptly pleas for the fighting to stop. 

From left to right: John Dugard, South African Professor of international law, (middle) Tembeka Ngcukaitobi, South African lawyer and legal scholar, and Adila Hassim, advocate of the High Court of South Africa. Image Source: The Nation

Genocidal Intent

For the next speaker, when deliberating on the topic of genocide, the most imperative and simultaneously difficult criterion to prove is that of intent. Mr. Tembeka Ngcukaitobi, lawyer, scholar, and advocate, stood before the court and provided proof of such intent. Through a comprehensive detailed review, Ngcukaitobi recounts his evidence, explaining that not only does the conduct described by Dr. Hassim demonstrate genocide, but the rhetoric used by Israel’s political leaders, military commanders, and others holding positions of power can and should be taken into account as explicit genocidal objectives. 

Through the description of Hamas Palestinians as “human animals” by Yoav Gallant, the Minister of Defence of Israel, The Deputy Speaker of the Knesset calling for “the erasure of the Gaza Strip from the face of the Earth,” and videos of soldiers in the Israeli Defense Forces (IDF) chanting with allusion to the biblical story of the destruction of Amalekites, Ngcukaitobi frames Israeli’s beliefs as being against Palestinian life as a whole in Gaza, not simply Hamas, shouldering what he believes to be overwhelming proof of intent.

As the argument continued with various other speakers discussing questions of jurisdiction, rights under threat, arguments of urgency, and potential irreparable harm, the case was best typified through the statements of genocidal actions and intent, equipping both, the panel of judges and the audience at large, with a perceivable understanding of the realities occurring in Gaza at the hands of the Israeli government. 

Day 2: Israel’s Response

On January 12, 2023, the second day of the hearing, Israel presented its oral argument, beginning with an opening statement by the Co-Agent of Israel, Mr. Tal Becker. Mr. Tal Becker, who initiated his speech by making the panel keenly aware of Israel’s understanding of Genocide and the reason for the Convention’s creation, reminds the floor of the Holocaust, which after such, the state of Israel adopted “Never Again” as a slogan for all. In his remembrance of the 6 million Jews that were killed under the Nazi regime, Becker claims this procession only belittles genocide and as a result, belittles Jewish history by both “weaponizing” the word and “emptying” it of its meanings. 

Israel’s legal defense team. From left to right: Tal Becker, Professor Malcolm Shaw, Doctor Gilad Noam, and Galit Raguan. Image Source: The Wire

By describing the Hamas attack of October 7th, providing grave detail of the women and children systematically raped and mutilated, the infants burned alive, the people taken hostage to be starved and tortured in captivity, and the 1,200 people massacred, Becker states Israel’s course of action can only be described as lawfully defensive. He continues to describe the environment and operability of Hamas within Palestine, to frame Israel’s military intervention as a fight to rid the region of the terrorist organization which poses a threat to both, Israelis and Palestinians alike, and to do so in the name of peace between these groups, with no intention of eliminating the Palestinian population as a whole.

Becker finishes by requesting a dismissal of this ‘libel’ that only acts to deny Israel the right to defend itself under the law and calls for Professor Shaw to take the floor to outline prima facie jurisdiction and the preservation of the rights of the parties.

Framing the Counter Argument

Israel’s defense, formed by international lawyers and professors of international law, presents an argument that states Israel’s acts can all be considered lawful under circumstances of war. Professor Shaw establishes “the true nature of the situation,” placing Hamas at the forefront of an armed conflict between a terrorist organization and a state displaying the rightful tactic of defending itself. He unequivocally defends Israel’s full respect of international humanitarian law under the Geneva Conventions, ensuring that subsequent damage and harm taken place have been a direct result of Hamas’ “abhorrent” method of warfare, described by Galit Raguan: utilizing hospitals to carry out their proceedings and employing them to hold and torture hostages, as well as using their civilian population and infrastructure to guarantee their protection. 

Christopher Staker, an international lawyer, later similarly defended Israel’s behalf, criticizing South Africa’s request for provisional measures as they would only serve to encourage Hamas further to repeat its actions. Through the argument that Israel’s efforts are not against the Palestinian people, but Hamas, those forming its legal counsel defend the government’s actions. They provide proof of the country’s humanitarian aid assistance and attempts at all costs to minimize damage and civilian loss through an evacuation notice three weeks in advance of impending attacks and facilitating the entry of aid to Gaza through its crossings with no limit on food, water, shelter or medical supplies that can be brought into the territory.

Ultimately, the defensive position frames Israel as a lawful state fighting against an unlawful one. As Galit Raguan, a representative of the Israeli Ministry of Justice, states “When a population is ruled by a terrorist organization that cares more about wiping out its neighbor than about protecting its civilians, there are acute challenges in protecting the civilian population.”

Raguan finishes her statement by asking, somewhat rhetorically, if Israel sought only to destroy the population, why it would look for solutions to such challenges, by operating alongside international organizations and States to mitigate as much harm as possible. She negates Ngcukaitobi’s argument, as genocidal intent cannot be conceivable.

The International Court of Justice, South Africa v. Israel case. Image Source: New York Times

Conclusion

The Israeli-Palestinian conflict is not a new topic of discussion. Infiltrating conversations and arguments at every level of society, the question of peace between Israel and Palestine has been long-standing and continues to be one of concern. While throughout Israel’s history since its onset, there have been consistent instances of communication and violence between Israel and Hamas or Israel and the Palestinian people as a whole, this is the first encounter of a serious invasion of Gaza by the IDF since gaining control over the strip in 2007 and one of the first wide-scale attacks of such capacity within Israeli territory. It is also the longest the region has gone without witnessing a proper ceasefire taking hold. 

As the politics of this arena have always been a cause for interest or involvement for other global leaders – The United States’ inherent ties with Israel and the surrounding Arab Countries’ defense of the Palestinian struggle – the scale of this war levied by Netanyahu has drawn multiple countries out of the woodwork to take a stance in discussing the “crime of crimes” – one of the highest criminal allegations in international criminal, humanitarian, and human rights law. 

Joining the plethora of NGOs and other human rights organizations calling a spade a spade, South Africa’s case at the ICJ places an ostensive magnifying glass on Israel’s military strategy for the world to observe and judge for themselves. Essentially, creating a line in the sand by declaring Israel’s actions a genocide calls for all States to pick a side and summons the globe to watch as history is decided in real-time. 

For More Information, Please Read the Following:

Kingsley, Patrick. “Accused of Genocide, Israelis See Reversal of Reality. Palestinians See Justice.”

Al Jazeera. “A quick guide to South Africa’s ICJ Case Against Israel.”

Edwards, Christian. “South Africa Accuses Israel of Genocide and Urges Top UN Court to halt Gaza War.”

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by Theodora Terracina time to read: 9 min
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