International Court of Justice on Gaza
South Africa vs. Israel
The current proceedings before the International Court of Justice (ICJ) in The Hague pertain to the application of the Genocide Convention in the Gaza Strip. On December 29, 2023, South Africa brought a case to the ICJ, asking the court to take immediate measures. The court has now issued an Order.
The IJC examined whether Israel should be required to take provisional measures before a final decision is issued. According to the court’s decision, Israel does not have to cease its military operations. However, Israel must do everything in its power to refrain from killing and harming civilians in Gaza. Israel also has to submit a report on the protective measures taken within one month.
Since the terrorist attack by Hamas on October 7, 2023, with the brutal murder, rape and hostage-taking of Israeli citizens and the continuous rocket attacks from Gaza onto Israeli territory, Israel has been defending itself. The Netanyahu government has declared its intention to destroy the Hamas tunnel system and Hamas itself, and to liberate its citizens.
South Africa sees signs of genocide in Israel's military actions. The offence of genocide under international law is classified as the most serious crime of all. However, the accusation of genocide has become a common communication tool in international politics. The case was therefore sure to attract a great deal of media interest, while other interstate disputes before the ICJ do not receive worldwide attention.
Proof of intent
As for accusations of genocide, the criteria according to international law are often disregarded. In legal terms, these are clearly defined. A state must have the intention to destroy or want to destroy a group. The Israeli delegation therefore addressed the question of intent on the second day of the hearing on January 12, 2024, in The Hague. It denied South Africa's accusation that it intended to kill Palestinian civilians in Gaza. On the contrary, Israel argued, it was actively trying to minimize the number of civilian casualties with announcements and evacuations. The delegation did not hide problematic statements by politicians of the Israeli right-wing government, which could be interpreted as an intent to kill, but emphasized that they were made in the wake of the terrorist attack by the Islamist Hamas. It argued that isolated individual political statements could not be interpreted as expressing the intention of a state.
In its decision, the ICJ does not allude to the proof of intent under international law. Instead, the ICJ relies solely on the basis of the humanitarian situation in the Gaza Strip. In its sources, the ICJ mainly refers to statements made by political mandate holders of the United Nations, such as Antonio Guterres, the Secretary-General himself, and Martin Griffith, the Under-Secretary-General for Humanitarian Aid. The ICJ does not address Israel's factual statements claiming the contrary. This approach does not meet the requirements of an analysis under international law.
The Convention on the Prevention and Punishment of the Crime of Genocide, or Genocide Convention, is the oldest international treaty of the United Nations. It was adopted on December 9, 1948 in Paris by all of the 50 members the UN had at the time. To date, 153 states have ratified the Genocide Convention and are thus obliged under international law not only to refrain from committing genocide, but also to intervene if they recognize signs of genocide in other countries. Both states, Israel and South Africa, are parties to the Genocide Convention; Israel has been a party since 1950, South Africa since 1998.
The media often falsely claim that Israel is on trial. Only the International Criminal Court (ICC) has the authority to issue indictments, and only individuals. Proceedings before the International Court of Justice (ICJ) are treaty violation proceedings – in this case, it is specifically about the question of whether or not there has been a violation of the Genocide Convention. There is no investigation and no public prosecutor's office. The two states involved each nominate an ad hoc judge in their favor and appear before the ICJ. The American President of the ICJ, Joan E. Donoghue, presided over the case. The German judge, Georg Nolte, ruled with the majority in the decision.
South Africa's motivation
Seeking proceedings before the ICJ is primarily not a legal, but a domestic political decision. Cyril Ramaphosa's government is raising its profile in South Africa with the case. South African media are reporting positively on their government's initiative; finally, they are somebody in the world and appear on the global stage. In the summer of 2023, South Africa was faced with the prospect of implementing the arrest warrant issued by the International Criminal Court (ICC) against Russian President Vladimir Putin during a planned trip to a summit of the BRICS states and arresting him. In the end, Putin played it safe and did not travel. In 2015, South Africa was heavily criticized for not implementing another ICC arrest warrant against the then Sudanese President Omar Al-Bashir. The arrest warrant covers not only war crimes, but also genocide in Darfur. As a state party to the ICC, South Africa would have been obliged under international law to implement the arrest warrant. With the current proceedings against Israel, however, South Africa is attracting worldwide attention. It is thus freeing itself from the defensive corner it created for itself with its handling of the al-Bashir case.
South Africa had been decidedly pro-Palestinian for quite some time. As a result, diplomatic relations between South Africa and Israel have been strained. In November last year, Israel briefly recalled its ambassador to Jerusalem for consultations. There were political discussions in South Africa about closing the Israeli embassy altogether. South Africa first turned to the ICC with a request for an arrest warrant for Prime Minister Benjamin Netanyahu on charges of genocide in Gaza before initiating proceedings before the ICJ at the end of December.
The ICJ’s order
Israel's right to self-defense in response to the attack by Hamas terrorists, the murder of over 1.200 Israeli citizens and kidnapping of 130 hostages, clearly played no role in the ICJ's decision.
Israel must now submit a report on the protective measures taken against the Palestinian population within one month. Important news with regards to the court order: the accusation of genocide was not upheld.