On Thursday and Friday (11 and 12 January), a team of highly experienced legal experts from South Africa will present arguments to the International Court of Justice (ICJ) to obtain interim measures before airing its genocide case against Israel. The team will request, among other things, that the ICJ order the immediate cessation of Israel’s military activities in and against Gaza.

By Staff Writer

In an extensive 80-page submission, a team of highly esteemed and experienced lawyers from South Africa will present arguments to the ICJ on Thursday, highlighting the potential jeopardy to the rights of Palestinians and South Africa’s rights under the Genocide Convention.

South Africa’s application reads: “The court does not have to determine that all of the acts complained of are capable of falling within the provisions of the convention.

“It suffices that at least some of the acts alleged … are capable of falling within the provisions of the convention’.”

They assert that failure by the ICJ to “indicate provisional measures” to address the humanitarian crisis in Gaza, which has been characterised as dire by human rights organisations, poses a significant risk.

Furthermore, South Africa not only seeks an immediate cessation of Israel’s military operations in Gaza but also insists on the termination of the expulsion and forced displacement of Palestinians from their homes. Additionally, South Africa demands an end to the deprivation of Palestinians from adequate food and water, medical supplies and assistance, and sanitation.

In addition to other actions, South Africa also requests Israel to be instructed to implement effective measures to prevent the destruction and ensure the preservation of evidence on the allegations of genocide against it.

“ 2.3 million Palestinians in Gaza, including over a million children, are extremely vulnerable.

“There is a grave threat to their existence. They are in urgent and severe need of the court’s protection.

“With each passing day that Israel’s military attacks continue, further significant loss of life and property is being caused, and grave human rights violations are being committed.

“There can be no doubt that the requirements for the indication of provisional measures are satisfied here,” asserts South Africa in its submission.

Israel has strongly refuted South Africa’s allegations of genocide against it. An Israeli spokesperson Eylon Levy denounced the ICJ case brought by South Africa as a “blood libel”.

The phrase “blood libel” as used by Isra Levy in reference to South Africa’s ICJ genocide application against Israel, relates to historical antisemitic allegations made against Jews in medieval Europe. These accusations falsely claimed that Jews murdered Christians in order to take their blood. The term was described as anti-Semitic and meant to incite violent persecution.

It asserts that its military operation in Gaza is driven by the objective of dismantling Hamas, the military and political entity responsible for a surprise attack on October 7, 2023, resulting in the deaths of 1,200 individuals, the majority of whom were civilians.

Israel also maintains that it has implemented various innovative measures to protect the lives of Palestinian civilians in the densely populated area, including providing advance notice to residents before conducting bombing operations.

In response, Zane Dangor, the director-general of the Department of International Relations and Cooperation (Dirco), talking to News 24, described as unfortunate the reaction to South Africa’s extensive genocide application. The application drew upon multiple reports, findings, and documents to illustrate the severe and deadly conditions in which Palestinians in Gaza are residing and perishing.

“I mean, the idea of blood libel is most unfortunate. I think it is weaponising the suffering of Jewish people over the centuries and when there was real blood libel, as a means to deflect any criticism. 

“I do think that we have taken an approach that seeks to bring a solution to this, and the idea of using inflammatory political rhetoric in their response is not one that we are going to be engaging in the public domain.

“The intention that we have [by bringing the genocide application against Israel] is to end this [the war in Gaza], to bring some kind of justice for Palestinians, lay the basis for long-lasting peace and negotiations through dialogue. But peace and justice must prevail.”

South Africa Is On Firm Ground

Francis Boyle, an American legal scholar and advocate for human rights, contends that South Africa is in a favourable position to secure provisional measures from the ICJ.

“Based upon my knowledge, judgement and experience, I have read the application request for provisional measures of protection by the government of South Africa. I predict that South Africa will win an order for provisional protection against Israel to cease and desist from committing all acts of genocide against the Palestinians.”

Boyle represented Bosnia before the ICJ and successfully secured two rulings against Yugoslavia, ordering it to cease and desist from perpetrating genocide against the Bosnian populace.

He also indicated that, in his experience with the Bosnians, the order would likely be granted in approximately one week following the upcoming hearings.

In an op-ed published in the Mail & Guardian, Christopher Gevers who teaches international law at the University of KwaZulu-Natal wrote: “South Africa is on (even) firmer legal ground: the Genocide Convention obliges states to prevent genocide and specifically provides that disputes between signatories, such as South Africa and Israel, concerning its ‘interpretation, application or fulfilment … including those relating to the responsibility of a State for genocide … shall be submitted to the [ICJ] at the request of any of the parties to the dispute’. 

“There is reason to be optimistic about South Africa’s prospects of success. Last year the ICJ provisionally accepted a case brought by Ukraine against Russia under the very same provision of the Genocide Convention, but based on the creative interpretation of its terms.

“Ukraine successfully argued that, because Russia had accused it of committing genocide in the lead-up to the 2022 invasion, there was a ‘dispute’ between the two states regarding the Genocide Convention. The ICJ even went so far as to issue a preliminary order that Russia “shall immediately suspend [its] military operations … in the territory of Ukraine”.

“South Africa, based on far firmer legal footing, has asked for precisely the same preliminary order to be made against Israel, pending the outcome of the case, namely: “The State of Israel shall immediately suspend its military operations in and against Gaza.

“Ultimately, South Africa is seeking an order that Israel must desist from further acts of genocide and incitement to genocide, punish those already committed, ensure the preservation of evidence so that other Courts can do so as well, and make reparations to Palestinian victims.

“The stakes could hardly be higher. The case offers the prospect of reprieve and some measure of justice for the besieged Palestinians in Gaza, most immediately in the form of preliminary order for a cessation of military operations.”