On December 29, 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (the ICJ), concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in relation to Palestinians in the Gaza Strip (the Application). The ICJ is the principal judicial organ of the United Nations. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
The Application alleges 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 ethnic group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
Genocide, as defined in Article II of the Genocide Convention, is an identity-based crime – the prohibited acts aimed at the destruction, in whole or in part, of a national, ethnic, racial or religious group. As such, apart from showing the existence of the prohibited acts, one has to show that they were perpetrated against a protected group with the specific intent to destroy the group, in whole or in part. This element of the crime is often difficult to prove. The Genocide Convention imposes obligations in Article I to prevent and punish the crime of genocide. As per the ICJ judgment of 2007, “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”
The Applicant claims that Israel failed its obligations under the Genocide Convention stating that “Israel, since October 7, 2023, in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide” and that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.”
In addition to a finding in relation to the obligations under the Genocide Convention, the Application contains a request for the indication of provisional measures to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”
In response to the filling, the Israeli Foreign Ministry issued a statement rejecting the filling and indicating that “South Africa’s claim lacks both a factual and a legal basis, and constitutes despicable and contemptuous exploitation of the Court. South Africa is cooperating with a terrorist organization that is calling for the destruction of the State of Israel.” The statement added that “The Hamas terrorist organization – which is committing war crimes, crimes against humanity and tried to commit genocide on October 7 – is responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them. Israel is committed to international law and acts in accordance with it, and directs its military efforts only against the Hamas terrorist organization and the other terrorist organizations cooperating with Hamas. Israel has made it clear that the residents of the Gaza Strip are not the enemy, and is making every effort to limit harm to the non-involved and to allow humanitarian aid to enter the Gaza Strip.” Israel called on the ICJ and the international community to reject the claims.
The ICJ may become the second international court looking into the conflict. The International Criminal Court (ICC) is already investigating possible war crimes and crimes against humanity committed by both Hamas and Israel. In November 2023, the ICC Prosecutor confirmed that his office was conducting an investigation into the Palestine Situation, which encompasses “conduct that may amount to Rome Statute crimes committed since June 13, 2014, in Gaza and the West Bank, including East Jerusalem.” The Prosecutor added that the investigation was “ongoing and extends to the escalation of hostilities and violence since the attacks that took place on October 7, 2023”. He also reiterated that his Office has jurisdiction over “crimes committed on the territory of a State Party and with respect to the nationals of States Parties.”
As the situation is receiving more attention from international tribunals, one cannot forget about the civilians, on both sides, paying the ultimate price with the conflict raging on.
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