MAVERICK CITIZEN OP-ED
South Africa’s Gaza genocide case against Israel — how it will be argued, and the prospects for success
South Africa and Israel go head to head before the International Court of Justice later this week. South Africa will argue for provisional measures against Israel, drawing extensively on a precedent set in the case of The Gambia v Myanmar. If South Africa succeeds, the bigger question is whether Israel will heed the ruling of the ICJ.
South Africa’s initial hearing against the state of Israel in the International Court of Justice (ICJ) will be held this week, when it will request “provisional measures” as urgent, interim relief to prevent the ongoing acts of genocide against the Palestinians living in Gaza.
The South African case draws extensively on the recent precedent set in the ICJ in the case of The Gambia v Myanmar. The principles established in this case are significant for understanding South Africa’s case against Israel and its prospects of success.
The South African application relies on the principles outlined by the ICJ in The Gambia v Myanmar in pre-empting potential objections from Israel in respect of the ICJ’s jurisdiction to hear the matter, as well South Africa’s standing to initiate the case. The precedent is also significant in deciding whether an order for provisional measures should be granted.
The South African application draws on the Genocide Convention (the Convention) adopted in 1948 following the Holocaust in which millions of Jews and others were killed by Nazi Germany during World War 2. Both Israel and South Africa are parties to the convention. Notably too is the US, even though that country generally has not ratified international human rights treaties. More on this later.
Minister of International Relations and Cooperation Naledi Pandor. (Photo: Gallo Images / Daily Maverick / Victoria O’Regan)
Gambia v Myanmar
In November 2019, Gambia instituted an application against Myanmar, alleging that the latter’s treatment of the Rohingya minority group constituted acts of genocide in violation of the convention. In January 2020, as a provisional measure, the ICJ ordered Myanmar to comply with the convention, preserve evidence connected with allegations of genocide, and report regularly to the ICJ on its adherence to the order, which Myanmar did do. A further judgment was handed down in July 2022 where the jurisdiction of the ICJ was confirmed. During the next phase of this case Gambia has to prove definitively that genocidal acts were committed by Myanmar.
ICJ jurisdiction
In The Gambia v Myanmar, Myanmar argued that the ICJ lacked jurisdiction since no dispute existed between Gambia and Myanmar. The ICJ rejected this, noting, among other statements, a note verbale (a formal record of information) sent by Gambia to Myanmar, calling for an end to acts of genocide against the Rohingya.
The ICJ need only to determine whether the rights claimed, and of which protection is necessary, are plausible.
Similarly, the South African application establishes a convincing paper trail wherein it pre-empts a similar jurisdictional objection. The application details multiple statements, following the current invasion of Gaza, wherein members of South Africa’s Department of International Relations and Cooperation, Minister Naledi Pandor and President Cyril Ramaphosa warn of a looming genocide. South Africa’s application also notes that on 21 December 2023, it sent a note verbale to the embassy of Israel in South Africa, in which it raised its concerns about “credible reports that acts meeting the threshold of genocide”, as defined in the convention, were being perpetrated in Gaza. While Israel did not respond to South Africa, it has more than once denied publicly that it has violated the convention.
South Africa’s application argues that, based on the precedent in The Gambia v Myanmar, the public denials by Israel are sufficient to establish “a disagreement on a point of law or fact, a conflict of legal views or interests” between the two countries.
An International Day of Solidarity march was staged from Mary Fitzgerald Square to Nelson Mandela Bridge in Johannesburg on 29 November 2023, as a reminder of the enduring quest for peace, justice and recognition of the Palestinian cause. (Photo: Gallo Images / Papi Morake)
South Africa’s standing to bring the application
In The Gambia v Myanmar, Myanmar argued that Gambia’s claim was inadmissible because the convention did not contemplate claims by state parties which had not been injured and since no Gambians were affected in this case, Gambia lacked standing to initiate such a case.
The ICJ rejected this and affirmed the convention’s status as a treaty with obligations owed by each state party to all others collectively. Similarly, the South African application states that South Africa is “acutely aware of its own obligation – as a State party to the Genocide Convention – to prevent genocide”. This is significant because it affirms the obligations of all parties to the convention. It is also significant because, should the application for provisional measures succeed, the US and all other parties to the convention, would have a clear and binding obligation to prevent genocidal acts against the Palestinians.
Provisional measures
A determination in respect of provisional measures need not determine the merits definitively. Instead, the ICJ need only to determine whether the rights claimed, and of which protection is necessary, are plausible. Moreover, a link must exist between the protection required and the provisional measures being requested.
The events, since the Hamas-led attack on people in Israel on 7 October, may only be described as occurring as part of an ongoing genocidal ‘continuum’.
In The Gambia v Myanmar, Myanmar argued that subjective intent is crucial in determining whether an act constitutes genocide. It argued that the ICJ must determine whether it is plausible that the existence of a genocidal intent is the only inference that can be drawn from the acts alleged and the evidence submitted. The ICJ rejected such a high threshold at the provisional stage, requiring only that the rights of the Rohingya people are acknowledged and that the rights are protected from acts of genocide.
President Cyril Ramaphosa. (Photo: Elmond Jiyane / GCIS)
To meet this threshold set by the ICJ, the South African application provides a detailed, factual account of a “continuum” of genocidal acts, beginning during the Nakba, 75 years ago, when many Palestinians were forced to live in Gaza as refugees, which genocidal acts have continued through military occupation, and the ongoing curtailment of fundamental rights. This has resulted in Gaza becoming “an impoverished ghetto with a decimated economy and a collapsing social service system”. The events, since the Hamas-led attack on people in Israel on 7 October, may only be described as occurring as part of an ongoing genocidal “continuum”.
These acts include:
- The killing of Palestinians: To date, 22,185 Palestinians have been killed – 70% of these are women and children. South Africa’s application notes that “an additional estimated 7,780 people, including at least 4,700 women and children, are reported missing, presumed dead under the rubble of destroyed buildings – dying slow deaths – or decomposing in the streets where they were killed”;
- Causing serious bodily and mental harm to Palestinians: The application notes that more than 55,243 Palestinians have been wounded since October, the majority of them women and children. Burns and amputations are typical injuries. It further notes the existence of severe mental trauma after three months of relentless bombardment, displacement, loss of life and the many dehumanising acts that Palestinians have been subjected to;
- Mass expulsion from homes and displacement: So far it is estimated that more than 1.9 million Palestinians in Gaza (about 85% of the population) have been displaced;
- Deprivation of access to adequate food and water: The papers provide a narrative of the impact of a “complete siege” on Gaza services, preventing electricity, food, water and fuel from entering the strip and which has now pushed Gaza to the “brink of famine”;
- Deprivation of access to adequate shelter, clothes, hygiene and sanitation: The application notes that the impact of this is diarrhoea cases among children aged under five are 25 times what they were before the conflict, which can be lethal for malnourished children. Sewage is flowing into the streets where people live and [e]verywhere you look is congested with makeshift shelters. Everywhere you go, people are desperate, hungry and terrified”;
- Deprivation of adequate medical assistance as a result of the “unrelenting war” on the health system: The application notes that 13 out of 36 hospitals and 18 out of 72 healthcare centres are still functioning, some of them barely, 22 health workers have been killed, and premature babies and ICU patients have died due to the loss of electricity. There is a shortage of supplies and patients are subject to procedures, such as amputations, without anaesthesia while chronic conditions such as kidney disease and cancer cannot be treated;
- Destruction of Palestinian life through the bombing of infrastructure such as schools, mosques and universities: No learning is currently taking place in Gaza;
- Imposing measures intended to prevent Palestinian births: The application notes, for example, the increase in premature births and maternal mortality.
Finally, South Africa’s court papers list the multiple expressions of genocidal intent against Palestinians by Israeli officials, including Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The application also quotes a “motivational speech” to members of the Israeli army by a veteran from the time of the Nakba:
“Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live… Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him… We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”
Based on the actions and statements, the South African application argues that prima facie a genocide is under way in Gaza and that provisional measures are necessary to protect against further, severe and irreparable harm to the Palestinian people. Measures would include an immediate ceasefire, a requirement that Israel take steps to prevent the destruction of evidence and preserve evidence related to allegations of acts of genocide, as well as report at regular intervals on measures taken to prevent genocide.
A relative of Palestinians from the Abu Hatab family, who were killed during an Israeli air strike that targeted areas classified by the Israeli army as safe in the southern Gaza Strip, reacts near their wrapped bodies outside Nasser Hospital in Khan Younis on 4 January 2024. (Photo:EPA-EFE / Haitham Imad)
Implications of the South African case
If precedent is adhered to, then it is likely that South Africa’s case for provisional measures will succeed. Moreover, in a context where Gaza has now been described as uninhabitable and apocalyptic, the case is a strategy to impose binding obligations on Israel in the context where the UN Security Council has not been able to do so.
Read more in Daily Maverick: Israel-Palestine War
The bigger concern, however, is whether an ICJ order will in fact stop Israel from continuing its brutal actions in Gaza? Tragically, probably not. However, such an order would establish the moral and legal authority that Israel’s heavy-handed action in Gaza is wrong and would oblige countries to take steps to stop the ongoing genocidal acts against Palestinians. It will also contribute to the widening ripple of global solidarity for the Palestinian cause that cannot be ignored. DM
Dr Faranaaz Veriava is a senior lecturer in the University of Pretoria Law Faculty, and the head of SECTION27’s Education Programme.
A an unlikely declaration that Israel has contravened the Convention would be meaningful while an order to conform with the Genocide Convention would not, since Israel would say we do anyway. But no doubt the ANC would call that a victory in that it served its propose to distract its constituency from the conditions most of it have to endure.
Great summary , should have done it before i read the 84 page brief . But am not as confident as you on the outcome remember horse trading in politics .
Countries Judges are from and how i think will vote based on current geo politics and not on merits or case law.
1. Against – US.
2. Not sure – Russian
3. Against – Slovakia
4. Not sure – France
5. Against – Morocco
6. Against – Somalia
7. Not Sure – China
8. Against – Uganda
9. Not sure – India
10. For – Jamaica
11. For – Lebanon
12. Against – Japan
13. Against – Germany
14. Not sure – Australia
15. For – Brazil
I am not sure who SA and Israel judges replace and not sure how both will vote but based on their history both are very independent and will follow the law.
So i get 7 Against . 3 For and 5 Not sure . i could be doing disservice to them but this is how i see it.
While I take your stance on Australia as probably being correct, I believe that our friends in Germany nad France may yet surprise you.
Great summary , should have done it before i read the 84 page brief . But am not as confident as you on the outcome remember horse trading in politics .
Countries Judges are from and how i think will vote based on current geo politics and not on merits or case law.
1. Against – US.
2. Not sure – Russian
3. Against – Slovakia
4. Not sure – France
5. Against – Morocco
6. Against – Somalia
7. Not Sure – China
8. Against – Uganda
9. Not sure – India
10. For – Jamaica
11. For – Lebanon
12. Against – Japan
13. Against – Germany
14. Not sure – Australia
15. For – Brazil
I am not sure who SA and Israel judges replace and not sure how both will vote but based on their history both are very independent and will follow the law.
So i get 7 Against . 3 For and 5 Not sure . i could be doing disservice to them but this is how i see it.
Be careful of the consequences when only one side is taken and you say you want to be neutral in certain matters, it will come back with implications that may not have been expected. Israel will have the opportunity to table all the horrific deeds perpetrated by Hamas and expose the abuse of aid funds received for the benefit of it`s people that have been used to finance the attack on Israel. The suffering must end, both sided need to take a step back, fueling the fire will not help.
Good point- everyone step back. And you called Zionist for wanting conflict to stop! Astounding the prejudice out there. I agree with you
SA gov. conveniently forget of the 16,000+ people killed in SA on a yearly basis and there is no war in SA. And Ignore what Russia has done in Syria and currently doing in Ukraine. Same for what Syria Al-Assad has done to his own people. Why is SA gov silent on this? BUT the SA gov. have got lot to say about Israel and worried about Gaza but they can’t even resolve their own problems in SA.
16,000? You’re out by at least 11,500. Murder rate mid 22 to mid 23 was 75 murders per day in SA and stands at 45 per 100,000 people
A deafening silence on Putin’s ethnic cleansing efforts in Ukraine.
Hamas’ charter states: “Initiatives, and so-called peaceful solutions and international conferences, are in contradiction to the principles of the Islamic Resistance Movement … (There is) no solution for the Palestinian question except through jihad … The prophet, prayer and peace be upon him, said: ‘The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: O Muslim! there is a Jew hiding behind me, come on and kill him!’ … “
Rod a majority of us are and will always be against the invasion of Ukraine same like Palestine but always America and it’s allies fuel the flames, they let Ukraine fight a war they cannot win and which they never wanted them to win, to them it was giving Russia a bloodied nose, at what expense to the Ukrainians, same situation in Israel they want to send a message to Iran by supporting the occupier what a contradiction between the two, and the innocent civilians and the useful fool will suffer, Hamas was just a useful excuse same like Putin’s discomfort of having NATO in Russia’s borders, Hamas attack was a horrible act to be dealt with not to be exploited, a true state is gauged by how it mantains the law during very tragic times, we don’t see it here and we don’t hear it here, we hear genocide and we see genocide the ICJ will just do a formal declaration already communicated and visibly shown by the accused state of Israel or what ever remains of what once promised to be a respected state, those comedians running the state of Israel have shared very sick jokes and are acting them
Yawn
I have difficulty understanding the intended end game for the ANC/DIRCO/South Africa(?) ICJ actions. Actions by Israel before the 7th of October were unacceptable and broadly condemned by most other countries. Israel’s politics was in flux with protests against the far-right government.
The attacks by Hamas on the 7th of October were indescribably violent, and very personal and aimed to cause a violent reaction from Israel, not known for turning the other cheek! And guess what, it happened!
So we have two parties that are at each other’s throats. Hamas spent a fortune of Aid money to dig holes so that they could hide away while the expected scorched earth above hit everyone else. Making sure the cost of getting at them would be extreme. Israel knows no bounds and the poor civilians on top have no protection and are given none by Hamas.
South Africa has long but now cordial relations with Israel and has for a long time supported the Palestinian cause, an ideal position for a reasoned intervention, one would think.
So DIRCO chose sides and I wonder from outside what DIRCO thought the rest of South Africa would think of their actions. There is no going back now, no redo!
The whole issue is an absolute failure of the local politicians and a win for extremists. Bloody Hell!
Hamas is not in a military war with Israel but is engaged in political warfare which seeks to delegitimise the State of Israel to a world that is largely anti West, anti “western imperialism” of which Israel has been rendered a proxy. It must be noted that some of Israel’s supporters like Russia and China have not gotten the vitriol from
SA reserved for the “West” including “little” Ukraine despite its “acceptable” voting record on Palestine at the UN. When it comes to the anti West paradigm of SA, SA will sacrifice every person it has rendered to be on the side of the West, witness Zimbabwe, Syria, Sudan, Ukraine etc.
We have already seen the successful reduction of the word Zionist to extremist. Then there is the ambiguous use of the word settler which is used with 75 years not the time from 1967.
SA whose foreign policy is rabid anti West disposition, has often used the same language and participated in the political warfare on the side of Hamas. At the same time SA has been on a mission to discredit international organisations such as the ICC. The Court case at The Hague is not about the decision but it is the coup de Grace in the political warfare.
Israel’s reputation is in tatters. Even Elon throws anti Israel stuff at me. Bibi by acting hastily has led Israel to a Cadman victory. Something worse than a victory that ruins.
Hamas is not in a military war with Israel but is engaged in political warfare which seeks to delegitimise the State of Israel to a world that is largely anti West, anti “western imperialism” of which Israel has been rendered a proxy. It must be noted that some of Israel’s supporters like Russia and China have not gotten the vitriol from
SA reserved for the “West” including “little” Ukraine despite its “acceptable” voting record on Palestine at the UN. When it comes to the anti West paradigm of SA, SA will sacrifice every person it has rendered to be on the side of the West, witness Zimbabwe, Syria, Sudan, Ukraine etc.
We have already seen the successful reduction of the word Zionist to extremist. Then there is the ambiguous use of the word settler which is used with 75 years not the time from 1967.
SA whose foreign policy is rabid anti West disposition, has often used the same language and participated in the political warfare on the side of Hamas. At the same time SA has been on a mission to discredit international organisations such as the ICC. The Court case at The Hague is not about the decision but it is the coup de Grace in the political warfare.
Israel’s reputation is in tatters. Even Elon throws anti Israel stuff at me. Bibi by acting hastily has led Israel to a Cadman victory. Something worse than a victory that ruins.
And not a comnent in the suddenness, brutal and savage attack by Hamas on 7th October, Guess Dr Veriava if UpP is owning up to bias at least, I’m my opinion/ it’s bigotry. Shame on you
You ever heard the saying “support living artists, the dead ones don’t need the money”?
The victims of the October 7th attack can only be mourned. The victims of continued carpet bombing and other military antagonism can be. Unless your bias doesn’t extend to viewing those people as people.
So let’s just sit ourselves down – because neither you nor I have skin in this game and should be damn grateful for that.
James please leave this rhetoric about animals out of your responses. Firstly it shows that you believe that man has the right to treat animals in any way he sees fit. Secondly you are attempting to reduce the Palestinian people and Muslims in general to a lesser status so you can justify your opinion. Lastly despite what you may think we are all animals, unless you would prefer to be classified as a mineral or a vegetable.
It is an artifact of human nature that those who hold another people in brutal and violent subjugation on their occupied land can never live in freedom and safety themselves. One genocide unfortunately begets another.
Cant believe all the self righteous comments. No one is right in this conflict. Too many ego’s.
Has anyone seen or know if the Israeli response has been submitted.
Bloody libel is the well known response which does not even start to chronologically defend the accusations levelled against them
blood libel not bloody libel. Something quite different
I think people often get confused between their personal convictions (whether Zionist or other racist ideologies or otherwise) and factual assessments.
Firstly, no one in their right mind should condone the actions of Hamas to brutally murder innocent civilians, irrespective of the known atrocities by the Israelis against the Palestinians over the last 50 years or so (there are countless UN resolutions on the issue for those that want to live in denial).
Ultimately, this case is not so much about Israel’s actions against Hamas members. Morally, Israel certainly has a right to retaliate against Hamas for their actions. Although, also to be clear, under international law Israel does NOT have a right to defend itself against perpetrators in a territory they occupy. But not to get off track here, ultimately the actions of Israel are not proportionate to the threat posed and, unfortunately for the Israel supporters out there, this cannot be argued any other way. Just ask yourself: if Hamas had been hiding on Israeli soil, would Israel also have killed in excess of 20,000 people (the majority being women and children) and flatten entire cities to rid itself of Hamas or would it have taken a more targeted approach? There goes your assessment of proportionality.
What is also clear is that Israel has been committing war crimes, most obviously the crime of collective punishment. We cannot punish an entire population, especially children, for the actions of a few thousand of its citizens.
Whether or not genocidal intent can be proven (even though this may not be required at the initial stage of these proceedings) should not distract from the fact that Israel has been targeting and punishing the civilian population of Gaza and that no one should defend such acts by a proclaimed democratic state in today’s world. In the same vein, as I have said above, no one should defend the actions of Hamas, whether regarded as provoked or not. Whichever side of the argument you find yourself, at least apply the same standards.
Hope this finally brings this war to a close. Kudos to humanity!
The gruesome act of terror committed by Hamas on 7 Oct cannot be justified. The ongoing genocide committed by the IDF cannot be justified.
Any attempts made to curtail the violence and deprivation suffered by innocent civilians must be supported.
James Webster – your bigotry against Muslims and Palestinians is shocking (and I was born into a Hindu family).
It is precisely such hate-filled speech that leads to war. In the interests of a world where all our children, whether Hindu, Muslim, Jew or Christian, can live in Peace, it is incumbent on us all to exercise restraint, at the very least.
Stop with the false genocide narrative! If genocide was their goal then Palestine would have ceased to exist decades ago
Ben Harper – the crime of genocide requires the proof of the physical element and the element of intent (and luckily not your flawed logic).
South Africa has a very strong case as will become evident today. The entire Israeli cabinet has made numerous statements that reflect genocidal intent (which is probably the most difficult part to prove, unlike the obvious acts that have been committed).
Hopefully, after the ICJ judgement in the case such nonsensical comments will become futile.
Nonsense, there is NO evidence of intent to commit genocide whatsoever – your flawed beliefs and false narrative won’t change that. South Africa has nothing, absolutely nothing other than their own attempts at grandstanding especially as the SA government cosies up to and supports Hamas. Did you know that SA hosts one of only two official Hamas offices, the other one is in Qatar. Plus their track record of supporting genocidal maniacs that have already been found guilty in the International Courts – they don’t arrest him the invite him over and protect him
Hypocrites. Where were the ANC when Russia annexed Crimea? And where when Russia invaded Ukraine and eliminated whole towns and cities? And where were they when Ukrainian babies were abducted by Russia and made Russian citizens? And when Russia targeted Ukrainian non-combatants?
And where were the ANC during the Hutu-Tutsi massacres? And where were they during the many wars in Africa?
Be happy that for once the government does the right thing (although I am not disagreeing with your statement).
They haven’t ONCE done the right thing – including this time
South Africa should experience precisely the same attack with the exact same level of barbarity as Israel suffered by the Islamists then we can gauge what a fair response looks like. Until then, South Africa should sit down and be quiet.