South Africa v. Israel: What’s Next?
Introduction
On 26 January 2024, The Hague ruled in slight favour of South Africa regarding its application concerning Israel’s potential acts of genocide in Gaza Strip (Gaza). The court urged The State of Israel to ‘take measures within its power’ under the UN Genocide Convention, but rejected the South Africa’s request for UN provisional measures. The verdict became a heated topic in the global community as states and NGOs joined to condemn Israel’s actions in Gaza. However, as the death toll continues to rise in Gaza months after the ruling, the actual impact on the ground remains uncertain. Some even described ICJ’s decision as a mere ‘diplomatic win.’ But in the grand scheme of things, the future of Gaza lies in the hands of UN’s member states rather than the ICJ. With conflicts brewing across the whole Middle East and Netanyahu rejecting peace offers, this might only be the beginning of a long and challenging process.
Background
On 7 October 2023, the Palestine based militia group ‘Hamas’ initiated a an attack on over 20 Israeli civilian targets in the ‘Gaza Envelope,’ located within the Gaza Strip. More than a thousand civilians were killed and abducted by the time Israel Defense Force (IDF) took back control of the area. In response, Israel started an ongoing full-scale escalation into the Palestinian territories of the Gaza Strip on 27 October 2023, aiming to completely eliminate Hamas and rescue hostages.
Since Israel’s invasion, more than 33,000 civilians are dead as of 7 April 2024, including thousands of children. As a result, Israel has received heavy criticism from the international community for its inability to prevent civilian casualties, or even, being a direct cause of it. South Africa officially submitted a request for UN provisional measure on 29 December 2023, which, if successful, would demand Israel to immediately suspend all military operations in Gaza Strip under the Statute of the ICJ.
Inside The Palace of Justice
A. The Prima Facie Case
In the 84-page memorandum submitted to the ICJ, South Africa requested ‘provisional measures’ from the UN in order to prevent ‘imminent and irreparable loss’ of lives in Gaza. This application was made on the grounds that The State of Israel has committed acts of genocide and omission under Article 3 of the Genocide Convention. Specifically, South Africa stated that the IDF has committed genocide-equivalent actions as mentioned in Article 3 including: mass destruction of Palestinian lives through undifferentiated bombardment, the killing of Palestinian journalists and health workers, prevention of Palestinian births, and deprivation of necessary resources for life, such as water and food. The application has also suggested that Israel government officials have expressed ‘genocidal intent against the Palestinian people.’
Israel’s representatives described these accusations made by South Africa as ‘partial and deeply flawed during the hearing at the Palace of Justice.’ Claiming that the deaths of more than 23,000 civilians, which is only ‘1% of the Gaza population,’ were caused by the pro-Palestine militia group Hamas. Tal Becker, Israel’s counsel, stated in his opening statement that ‘it is impossible to understand the armed conflict in Gaza, without appreciating the nature of the threat that Israel is facing.’ Essentially stating that certain casualties are out of the IDF’s scope and therefore unavoidable.
In terms of the ‘intent’ to commit acts of genocide, Israel argued that the evidence presented by South Africa were ‘clearly rhetorical.’ This was made on the basis that the press releases, which allegedly contained genocidal intent, were ‘made in the immediate aftermath of an event which severely traumatized Israel.’ While these comments should not be disregarded, they should not be used as evidence.
B. Jurisdiction
The invocation of ICJ’s jurisdiction over the case lies under Article 8 of the Genocide Convention, which allows states to dispute matters regarding acts of genocide through the court. Such jurisdiction was not given to the ICJ, but rather, consented by the member states of the treaty. With that being said, despite not being a victim of Israel’s actions, South Africa had the right to challenge Israel’s obligations under the convention simply because both states are signed the treaty.
In contrast to the precedent provisional measures cases such as The Gambia v. Myanmar, Armenia v. Azerbaijan, and most recently Ukraine v. Russia, South Africa's decision to challenge Israel's obligations under the convention demonstrates the interconnectedness of international legal frameworks and the responsibility of signatory states to hold each other accountable for alleged violations. For instance, in the case of Ukraine, provisional measures were request for the sake of protecting the appalling country’s right in relation to Russia’s military actions in its territory. Whereas South Africa is acting as a protector and enforcer of the Genocide Convention.
C. Issuance of Provisional Measures
Under Article 51 of the UN Charter, a member state may request for provisional measure if it believes that the subject of its application is in immediate humanitarian danger. Such measure can be carried out through ordering a member state to suspend all its military actions in another country, which is what South Africa requested against Israel. Which, in the eyes of many scholars, is an almost unprecedented and ‘bold’ request.
The last successful attempt for provisional measures happened in the case of Ukraine, where the ICJ found that Russia posed an immediate danger to the rights of Ukraine and ordered it to freeze its invasive military actions. The court found that:
‘Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine’
Ironically, the two justices that opposed this ruling were Judge Xue, representing the People’s Republic of China, and judge Gevorgian from Russia; till this date, Russia has yet to comply with the provisional measures imposed by the ICJ. On the other hand, the likelihood of Israel complying with the provisional measures remains uncertain, especially given the volatile nature of the conflict and Israel's stated intentions to retaliate. As Hamas continues to launch more attacks, the risk of further escalation and civilian casualties persists, underscoring the limitations of legal interventions in resolving entrenched geopolitical disputes.
Conclusion
The court proceedings shed light on the challenges of addressing alleged acts of genocide and the limitations of international legal mechanisms in enforcing provisional measures. As the world watches the developments in the region, the path forward for Gaza and the resolution of the conflict between Israel and Palestine remains fraught with challenges. The reluctance of certain states to uphold international legal decisions, as seen in the case of Russia's non-compliance with the ICJ ruling on Ukraine, raises questions about the efficacy of international law in promoting peace and justice in conflict-affected regions. Moving forward, the international community must explore alternative approaches to conflict resolution.
Sean Xue
Bibliography
Cases:
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan).
Legislations:
Charter of the United Nations
Convention on the Prevention and Punishment of the Crime of Genocide
Statute of the International Court of Justice
Official Case Reports:
ICJ Verbatim Record (12 January 2024) (South Africa v. Israel) CR 2024/2
Order of 26 January 2024, ICJ Summary 2024/1
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