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  • Writer's pictureMerle Emrich

“Genocides Are Never Declared in Advance”: South Africa v. Israel at the ICJ

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On January 26, 2024, the International Court of Justice (ICJ) announced its decision on provisional measures in the case of South Africa accusing Israel of committing genocide in Gaza. The ICJ’s ruling on whether Israel’s actions constitute a violation of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) will likely take several years. South Africa requested that, in the meantime, the court orders a set of provisional measures to protect the people in Gaza including the demand for an immediate end to Israel’s military campaign and to ensure access to food, water, sanitation, and medical supplies. Israel, in turn, asked the ICJ to reject the charges brought against them.

Following two hearings on January 11 and January 12, the ICJ has given its preliminary ruling in the case announcing the following provisional measures:

  1. Israel must take all possible measures to prevent acts that fall under Article II of the Genocide Convention.

  2. Israel must take measures to prevent and punish incitement to commit genocide against Palestinians in Gaza.

  3. Israel must take immediate measures to ensure that urgent services and humanitarian assistance can be provided to the population of Gaza.

  4. Israel must ensure the preservation and prevent the destruction of evidence that falls within the scope of Articles II and III of the Genocide Convention.

  5. Within a month, Israel must submit a report on the measures taken to comply with the court’s order.

But what are the reasons South Africa gives for its charges against Israel? On what grounds does Israel reject the charges? I do not intend to provide an evaluation of whether South Africa’s accusations are justified, nor is my purpose to verify claims made by either side. Instead, I take a close look at the opening statements by South Africa and Israel in an attempt to understand what arguments they use as a foundation for their respective positions.

South Africa: “Nowhere Is Safe in Gaza” 

South Africa’s opening statement, delivered by human rights lawyer Adila Hassim SC, draws attention to the extensive scale of Israel’s bombing of Gaza as well as the resulting humanitarian crisis. It underlines that the events since October 7, 2023, are tied to a larger historical context including “mass forced displacement” and “years of blockade.” Particularly the harm to children is highlighted alongside the argument that Israel’s actions—which deny civilians access to basic services and create conditions in which “nowhere is safe”—demonstrate an intent to destroy Palestinian life in Gaza.

South Africa states that Israel’s military campaign in Gaza is “one of the heaviest conventional bombing campaigns in the history of modern warfare” with 6,000 bombs per week deployed “in the first three weeks alone, following 7 October.” The statement draws attention to the destructiveness of the bombs used by Israel: “Two thousand-pound bombs are some of the biggest and most destructive bombs available. They are dropped by lethal fighter jets that are used to strike targets on the ground by one of the world’s most resourced armies.”

With its military operations, South Africa argues, Israel has “killed an unparalleled and unprecedented number of civilians" and “pushed Gazans to the brink of famine.” The statement thus describes a situation that stands out from other wars and conflicts through the extraordinary scale of death and suffering of civilians which is “so extensive that those bodies found are buried in mass graves, often unidentified.” In South Africa’s view “[n]othing will stop the suffering except an order from [the ICJ].”

The “relentless bombing” of Gaza not only resulted in the “forced displacement of 85 percent of Palestinians in Gaza” and the “impossibility of distributing” the limited amount of humanitarian aid that is allowed into Gaza but also in a situation in which “nowhere is safe in Gaza.” South Africa accuses Israel of “targeted sniping of civilians”, the bombing of southern Gaza where Palestinians were ordered to evacuate as well as bombing “designated safe zones” and “Israeli-declared safe routes.”

The bombing of designated safe routes and zones constitutes, for South Africa, evidence of genocidal intent on the part of Israel. Beyond conducting military operations “with the full knowledge of how many civilian lives each bomb will take”, South Africa considers the “deliberately imposed conditions in Gaza that cannot sustain life” and are “deliberately calculated to cause widespread hunger, dehydration and starvation” as a further indication for Israel’s intent “to bring about the destruction of the population.” The effects of Israel’s actions are not only “clearly calculated” but also “celebrated by the Israeli army.”

South Africa points towards discrepancies between Israel’s claims of self-defense against Hamas and their targeting of civilians by emphasizing the harm to women and in particular children. It states that “70 percent of [all casualties during the past three months] are believed to be women and children”, including “newborn babies”, and that the majority of those wounded, too, are “women and children.”

The emphasis on the suffering of children highlights the targeting of innocent civilians who are protected under international law. At the same time, it adds an emotional component to South Africa’s argument which is complemented by references to figures illustrating the suffering caused by the war, previous cases in front of the ICJ (Gambia v. Myanmar), and the citing of UN officials to support the reliability and plausibility of its argument that Israel’s acts “individually and collectively form a calculated pattern of conduct by Israel indicating genocidal intent.”

Israel: “A Profoundly Distorted Factual and Legal Picture” 

Israel’s opening statement, presented by Dr. Tal Becker, rejects all claims of genocidal intent or acts emphasizing Israel’s commitment to international law and the prevention of genocide. It argues that the civilian suffering in the current war is no more and no less extreme than in any other war and insists on Israel’s right to self-defense. It draws attention to the genocide of six million Jewish people in the Holocaust to illustrate a continuing history of Jews and Israel as the victims of (attempted) genocides rather than the perpetrators thereof.

In the very beginning and on several further occasions, Israel recalls “the systematic murder of six million Jews as part of a premeditated and heinous program for their total annihilation.” It uses the history of the Holocaust to underline its commitment to the prevention of genocide which is Israel’s “highest moral obligation.” Under this aspect, Israel regards South Africa’s charges as an attempt to “weaponize the term genocide” and to “delegitimize Israel’s 75-year existence.” Rather than perpetrating a genocide, Israel claims, that “if there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel.”   

Israel presents itself as under threat by the “harrowing” attack of Hamas whose acts, particularly the attack of October 7, it describes as “sadism”, “carnage”, “barbarism”, and “massacre, mutilation, rape and abduction” by “terrorists” who “burned people, including infants, alive.” While Hamas acts with disregard for the law and the suffering it inflicts on Israelis and Palestinians alike, Israel claims to be committed to the law, to make “extensive efforts to mitigate civilian harm” and “to demonstrate humanity” in the face of “Hamas’s utter inhumanity.”

In its statement, Israel denies all responsibility for harm to civilians based on three general arguments: 

  1. It views its military campaign as legitimate and proportionate “in response to the slaughter of October 7—which Hamas openly vows to repeat—and to the ongoing attacks against it from Gaza” by an enemy “that has violated every past ceasefire."

  2. It describes the civilian suffering in Gaza as “tragic” but comparable to civilian suffering in other wars. Israel remarks that South Africa “described the suffering in Gaza as ‘unparalleled and unprecedented’, as if they are unaware of the utter devastation wrought by wars that have raged just in recent years around the world.”

  3. It holds Hamas, and Hamas alone, responsible for both the war and the harm to civilians resulting from it.

Israel states that the war in Gaza is “a war it did not start and did not want” but which it is forced to fight to defend its territory and citizens. In this war, Hamas, according to Israel, is pursuing a “reprehensible strategy of seeking to maximize civilian harm to both Israelis and Palestinians.” This strategy includes the smuggling of “countless weapons into Gaza”, the “hoarding of humanitarian supplies”, and the use of civilian infrastructure as the “most sophisticated terrorist stronghold in the history of urban warfare.”

Based on these arguments, Israel cannot be held responsible for the outbreak of the war since it legitimately responded in self-defense to an attack on its territory. It cannot be held responsible for the lack of humanitarian aid, since Hamas is stealing it. It cannot be held responsible for civilian casualties and the targeting of places such as hospitals and mosques since Hamas has “fighters dressed as civilians” who make use of “underground tunnels [...] with thousands of access points and terrorist hubs located in homes, mosques, UN facilities schools and, perhaps most shockingly, hospitals.” It cannot even be held responsible for the death of Palestinian children since Hamas “is known to bring minors no older than 15 or 16 into its ranks.” According to Israel, South Africa’s sources for the overall numbers of casualties are unreliable and explain a large part of these casualties as the death of militants, as civilians “killed by Hamas fire”, because they were “taking part in hostilities”, or as “the tragic result of legitimate and proportionate use of force against military targets.”

On this premise, Israel states that “there can hardly be a charge more false or more malevolent than the allegation against Israel of genocide” and accuses South Africa of presenting a “deliberately curated, decontextualized, and manipulative description of the reality of current hostilities.” It is “a profoundly distorted factual and legal picture” and is “barely distinguishable from Hamas’s own rejectionist rhetoric.”  Israel insinuates that South Africa agrees with Hamas and blames “Israel for the murder of its own citizens.”

Throughout its opening statement, Israel questions the reliability and accuracy of South Africa’s claims accusing it of weaponizing the term genocide against Israel to deny it its right to self-defense. It presents a narrative in which Israel is committed to international law and genocide prevention and fights in a “war of defense” for “a better future for Israelis and Palestinians alike” against a lawless, barbaric, and sadistic enemy who has no respect for human life.

A Promise of “Never Again”

In its opening statement, South Africa remarked that “genocides are never declared in advance.” While South Africa claims that Israel’s actions show a clear intent to commit genocide against Palestinians in Gaza, Israel regards these charges as an appeal to the ICJ to “betray” the “solemn promise made to the Jewish people, to all peoples, of ‘Never Again’” which the Genocide Convention constitutes. It is now up to the ICJ to determine, over the course of the next years, whether Israel’s military operations in Gaza are a violation of the Genocide Convention. In the meantime, and, in the absence of a ceasefire, the violence and suffering in Gaza continues.

Written by Merle Emrich.

Cover photo by Janne Leimola.


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