The Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)Application of Convention on Prevention and Punishment of Genocide (S. Afr. v. Isr.) , Provisional Measures, ICJ General List No. 192 (24 May 2024) (order aff'g prev. provisional measures, indicating new provisional measures). is an ongoing case that was brought before the International Court of Justice on 29 December 2023 by South Africa regarding Israel's conduct in the Gaza Strip during the Gaza war, that resulted in a humanitarian crisis and mass killings.
South Africa alleged that Israel had committed and was committing genocide in Gaza, contravening the Genocide Convention, including what South Africa described as Israel's 75-year apartheid, 56-year occupation, and 16-year blockade of the Strip. South Africa requested that the ICJ indicate provisional measures of protection, including the immediate suspension of Israel's operations.The request for provisional measures is made under Article 74 of the Rules of the Court (), which states that "A request for the indication of provisional measures shall have priority over all other cases." Israel characterized South Africa's charges as "baseless", accusing the country of "functioning as the legal arm" of Hamas. Israel said that it was conducting a war of self-defense in accordance with international law following the Hamas-led attack on its territory on 7 October 2023.
Two days of public hearings were held on 11 and 12 January 2024 at the Peace Palace in The Hague. The court ruled that it is plausible that Israel's acts could infringe rights of the Palestinian people protected by the Genocide Convention and issued provisional measures,"Gaza: ICJ ruling offers hope for protection of civilians enduring apocalyptic conditions, say UN experts". . Office of the United Nations High Commissioner for Human Rights. 31 January 2024. "The ICJ found it plausible that Israel's acts could amount to genocide and issued six provisional measures, ordering Israel to take all measures within its power to prevent genocidal acts, including preventing and punishing incitement to genocide, ensuring aid and services reach Palestinians under siege in Gaza, and preserving evidence of crimes committed in Gaza." in which it ordered Israel to take all measures to prevent any acts contrary to the 1948 Genocide Convention,Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024. but did not order Israel to suspend its military campaign. The court also expressed concern about the fate of the hostages held in the Gaza Strip and recognized the catastrophic situation in Gaza. In late February, Human Rights Watch and Amnesty International asserted that Israel had failed to comply with the ICJ's provisional measures and that obstructing the entry and distribution of aid amounted to war crimes.
On 28 March 2024, following a second request for additional measures, the ICJ ordered new emergency measures, ordering Israel to ensure basic food supplies, without delay, as Gazans face famine and starvation. On 24 May, by a vote of 132, the court issued what some experts considered to be an ambiguous order but which was widely understood as requiring Israel to immediately halt its offensive in Rafah. Israel rejected this interpretation and continued with its offensive operations. In April 2024, the ICJ requested comprehensive legal opinions from both countries. South Africa submitted its memorial in October 2024, while Israel submitted its opinion in March 2026 after two delays.
Background
In 1948, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which defined genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". The acts were: killing members of the protected group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the protected group. Victims must be targeted because of their real or perceived membership of a protected national, ethnic, racial or religious group.
Both Israel and South Africa have signed and ratified the Genocide Convention without reservation.
Proceedings
Proceedings were instituted on 29 December 2023 at the International Court of Justice pursuant to the Genocide Convention, and brought pursuant to Article IX of the convention. ALT Link
Balkees Jarrah, associate international justice director at Human Rights Watch, notes that the ICJ case is not a prosecution of individuals, and does not directly involve the International Criminal Court, which is a separate body that is currently carrying out its own investigation. Jarrah stated that the case presents an opportunity to "provide clear, definitive answers on the question of whether Israel is committing genocide against the Palestinian people".
According to legal academics, South Africa's request for provisional measures against Israel does not require a determination of whether Israel actually perpetrated genocide, but instead requires the determination that it is "plausible" that Palestinian rights under the convention were violated. Recent rulings in regard to the granting of provisional measures have taken between two weeks and one month after hearings. A final judgement on the case could take years.
Separately, hearings begin in February 2024 in regard to a U.N. request for a non-binding advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem.
On 24 January 2024, the Court announced that it would rule on the provisional measures request on 26 January 2024.
On 12 February 2024, South Africa requested that the court consider whether a planned Israeli military offensive against Rafah "has already led to and will result in further large-scale killing, harm and destruction", in breach both of the Genocide Convention and of the Court's Order of 26 January."
South African government position South Africa accuses Israel of committing acts of genocide in the Gaza Strip in violation of the 1948 Genocide Convention, which defined and prohibited genocide. South Africa brought the case by invoking its "obligation to prevent genocide" as a signatory to the United Nations Genocide Convention. The South African legal team includes John Dugard, Adila Hassim, Tembeka Ngcukaitobi, Max du Plessis, Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, Vaughan Lowe and Blinne Ní Ghrálaigh. South Africa has also appointed former Deputy Chief Justice Dikgang Moseneke as an ad hoc judge. During his period of imprisonment on Robben Island, Moseneke had met and befriended fellow anti-apartheid activist and future President Nelson Mandela, who went on to become a supporter of the Palestinian cause himself. A number of international political figures will be joining the South African delegation, including Jeremy Corbyn and Jean-Luc Mélenchon.
In the country's 84-page application it alleged that Israel's actions "are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group". South Africa requested that the ICJ issue a binding legal order on an interim basis (i.e., prior to a hearing on the merits of the application), requiring Israel to "immediately suspend its military operations in and against Gaza." Additionally, the incumbent South African president Cyril Ramaphosa also compared Israel's actions to apartheid.
The submission asserts that "acts and omissions by Israel ... are genocidal in character, as they are committed with the requisite specific intent ... to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group". Genocidal actions alleged in the suit included the mass killing of Palestinians in Gaza, the destruction of their homes, their expulsion and displacement, as well as the blockade on food, water and medical aid to the region. South Africa alleged that Israel had imposed measures preventing Palestinian births through the destruction of essential health services vital for the survival of pregnant women and their babies. The suit argued that these actions were "intended to bring about their [Palestinians] destruction as a group".
In an effort to establish genocidal intent behind the actions, a very difficult task, South Africa cited statements by Israeli leaders, such as Prime Minister Benjamin Netanyahu's invocations to "Remember what Amalek has done to you," referencing the total destruction of Amalek by the Israelites in the Bible, President Isaac Herzog's statement "It's an entire nation out there that is responsible. It's not true this rhetoric about civilians not aware not involved. It's absolutely not true. ... and we will fight until we break their backbone," and Minister of Defense Yoav Gallant's 'situation update' advising Israel is "imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and are acting accordingly." and military officials and representatives, asserting that these "indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group 'as such. The submission further asserts that these statements constitute direct and public incitement to genocide which has gone "unchecked and unpunished" and is instead being implemented; on this, the submission cites Israeli soldiers on the ground. In October 2024, the South African team submitted hundreds of pages of evidence which it stated proved Israel's intent to commit genocide.
Requested provisional measures of protection The South African application set out nine provisional measures of protection requested:APPLICATION INSTITUTING PROCEEDINGS, Paragraph 144: E. Provisional Measures Requested