The official full text of South Africa's application instituting proceedings against Israel's Genocide"
APPLICATION INSTITUTING PROCEEDINGS
I.
INTRODUCTION
2. In preparing this Application, South Africa has paid close attention to the provisions of the Genocide Convention, to its interpretation, and to its application in the years following its entry into force on 12 January 1951, as well as to the jurisprudence of this Court and that of other international courts and tribunals, including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court. South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphaël Lemkin who coined the term ‘genocide’ himself recognised.2 For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year- long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention,3 and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.
3.
South Africa is acutely aware of the particular weight
of responsibility in initiating proceedings against Israel for violations of
the Genocide Convention. However, South Africa is also acutely aware of its own obligation — as a State party to the Genocide Convention — to prevent
genocide. Israel’s acts and omissions in
relation to Palestinians violate the Genocide Convention. That is the shared
view of numerous other States parties to the
Convention, including the State of Palestine
itself, which has called on “world leaders” to “take responsibility… to stop
the genocide against our people”.4 United Nations experts have also repeatedly sounded
“the alarm” for over 10 weeks that “[c]onsidering statements made by Israeli
political leaders and their allies, accompanied by military action in Gaza and
escalation of arrests and killing in the West Bank” there is a “risk of
genocide against the Palestinian people”.5 United Nations experts have also expressed their
“profound … concern” about “the failure of the
international system to mobilise to prevent genocide” against Palestinians, and
have called on the “international community” to “do everything it can to
immediately end the risk of genocide against the Palestinian people”.6 The Committee on the Elimination of
Racial Discrimination (‘CERD’), acting under its ‘early warning and urgent
action procedure’, has also called on “all State parties” to the Genocide Convention to “fully respect” their
“obligation to prevent… genocide”.7 This application by South Africa and its request for
the indication of provisional measures fall to be considered in that context
and in the light of those calls. It is made against the background of South Africa’s foreign policy objective
for the attainment of a durable
peace between Israel and the State
of Palestine, with two States existing side by side within internationally
recognised borders, based on those existing on 4 June 1967, prior to the
outbreak of the 1967 Arab-Israeli
war, in line with all relevant
United Nations resolutions and international
law.
 |
2 Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of
Government, Proposals for Redress
(1944), Chapter IX.
3 Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, 12
August 1949, 75 UNTS 287.
4 Speech by Mahmoud Abbas on Palestine TV, 18 November
2023, https://www.youtube.com/watch?v=2uRGx02vULg; translated by WAFA: “President Abbas urges Biden to stop Israel’s
ongoing genocide of Palestinians”, WAFA (18
November 2023), https://english.wafa.ps/Pages/Details/139394.
5 United Nations
Office of the High Commissioner for Human Rights
(‘UN OHCHR’), Gaza: UN experts decry bombing of hospitals and schools as crimes against
humanity, call for prevention of genocide (19
October 2023) https://www.ohchr.org/ en/press-releases/2023/10/gaza-un-experts-decry-bombing-hospitals-and-schools-crimes-against-humanity.
6 UN OHCHR, Gaza: UN experts call on
international community to prevent genocide against the Palestinian people (16
November
2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-prevent- genocide-against.
7 UN OHCHR, Gaza Strip: States
are obliged to prevent crimes
against humanity and genocide, UN Committee stresses
(21 December 2023), https://www.ohchr.org/en/press-releases/2023/12/gaza-strip-states-are-obliged-prevent-crimes-against- humanity-and-genocide. Under CERD's Early Warning and Urgent
Action (‘EWUA’) procedure, CERD has extensive expertise in compiling indicators relevant to the prevention of genocide; in 2015 it issued a Declaration on the Prevention of Genocide which recalled this work in its preamble: see CERD, Declaration on the Prevention of Genocide (CRD/C/66/1)
(17 October 2005), https://www.ohchr.org/sites/default/files/Documents/HRBodies/CERD/declaration_genocide.doc (emphasis added).
4.
The facts relied on by South Africa in this
application and to be further developed in these proceedings establish that —
against a background of apartheid, expulsion, ethnic cleansing, annexation,
occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-
determination — Israel, since 7 October 2023 in particular, has failed to
prevent genocide and has failed to prosecute the direct and public incitement
to genocide. More gravely still, Israel has engaged in, is engaging in and
risks further engaging in genocidal acts against the Palestinian people in
Gaza. Those acts include killing them, causing them serious mental and bodily
harm and deliberately inflicting on them conditions of life calculated to bring
about their physical destruction as a group. Repeated statements by Israeli
State representatives, including at the highest levels, by the Israeli
President, Prime Minister, and Minister of Defence express genocidal intent.
That intent is also properly to be inferred from the nature and conduct of
Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food,
water, medicine, fuel, shelter and other humanitarian assistance for the
besieged and blockaded Palestinian people, which has pushed them to the brink
of famine. It is also clear from the nature, scope and extent of Israel’s
military attacks on Gaza, which have involved the sustained bombardment over
more than 11 weeks of one of the most densely populated places in the world,
forcing the evacuation of 1.9 million people or 85% of the population of Gaza
from their homes and herding them into ever smaller areas, without adequate
shelter, in which they continue to be attacked, killed and harmed. Israel has
now killed in excess of 21,110 named Palestinians, including over 7,729
children — with over 7,780 others missing, presumed dead under the rubble
— and has injured over 55,243 other Palestinians, causing them severe
bodily and mental harm. Israel has also laid waste to vast areas of Gaza,
including entire neighbourhoods, and has
damaged or
destroyed in excess of
355,000 Palestinian homes, alongside extensive tracts of agricultural land,
bakeries, schools, universities, businesses, places of worship, cemeteries,
cultural and archaeological sites, municipal and court buildings, and critical
infrastructure, including water and sanitation facilities and electricity
networks, while pursuing a relentless assault on the Palestinian medical and
healthcare system. Israel has reduced
and is continuing to reduce Gaza to rubble, killing, harming and destroying its
people, and creating conditions of life calculated to bring about their
physical destruction as a group.
7.
Mindful of the Court’s important role and the exercise
of its grave responsibility in circumstances in which the genocidal acts of which South Africa complains have occurred
very recently and are ongoing — and have not otherwise been subject to judicial
determination or detailed fact-finding
—
South Africa’s application and request for provisional
measures provide a more detailed factual account than might otherwise be usual.
That account draws in significant part on statements and reports by United
Nations chiefs and bodies and non-governmental organisations (‘NGOs’), as well
as eye- witness accounts from Gaza — including from Palestinian journalists on
the ground — in circumstances where Israel continues to restrict access to Gaza
by international journalists, investigators and fact- finding teams. However,
neither the Application nor the request for the indication of provisional
measures depends on a determination by the Court
of each individual incident or complaint referred to herein. Notably, as the
Court’s caselaw makes clear, “[w]hat the Court is required to do at the stage
of making an order on provisional measures is to establish whether… at least
some of the acts alleged… are capable of falling within the provisions of the
Convention”.8 At least
some of the acts alleged by South Africa are clearly capable of falling within those provisions.
II.
JURISDICTION OF THE
COURT
8.
South Africa and Israel are both Members
of the United Nations and therefore bound by the
Statute of the Court, including
Article 36 (1), which provides that the Court’s jurisdiction “comprises .
. . all matters specially
provided for . . . in treaties and conventions in force”.
9.
South Africa and Israel are also parties to the
Genocide Convention. Israel signed the Genocide Convention on 17 August 1949
and deposited its instrument of ratification on 9 March 1950, thereby becoming
a party when the Genocide Convention entered into force on 12 January 1951.
South Africa deposited its instrument of accession on 10 December 1998. It
became applicable between the parties on
the ninetieth day thereafter, pursuant to Article XIII of the Convention.
10.
Article IX of the Genocide Convention
provides:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the
present Convention, including those relating to the responsibility of a State
for genocide or for any of the other
acts enumerated in article III, shall be submitted to the International Court
of Justice at the request of any of the parties to the dispute.”
11.
Neither South Africa nor Israel has entered any reservation to Article IX.
12.
South Africa has repeatedly and urgently expressed its
concerns and condemnation in respect of
Israel’s acts and omissions which form the basis of this Application. South
Africa and other States Parties to the Genocide Convention have, in particular,
made clear that Israel’s actions in Gaza constitute genocide against the Palestinian people.
By way of example, the Presidents of Algeria,9
8 Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Provisional Measures, Order of 23 January 2020,
I.C.J. Reports 2020,
p. 14, para. 30 (hereafter ‘The Gambia
v. Myanmar, Provisional
Measures, Order of 23 January 2020’).
9 “Algeria, Türkiye discuss need for accountability over Gaza ‘genocide’”, Middle East Monitor (21 November 2023), https://www.middleeastmonitor.com/20231121-algeria-president-tebboune-turkiye-president-erdogan-discuss-need-for- accountability-over-gaza-genocide/. The People’s
Democratic Republic of Algeria acceded
to the Genocide Convention on 31 October 1963.
Bolivia,10 Brazil,11 Colombia,12 Cuba,13 Iran,14 Türkiye,15 and Venezuela16 have all described Israel’s
actions as a genocide, as has the Palestinian President.17 State officials and representatives from
Bangladesh,18 Egypt,19 Honduras,20 Iraq,21 Jordan,22 Libya,23 Malaysia,24 Namibia,25 Pakistan,26 Syria,27
10 Luis Alberto Arce Catacora (Lucho Arce), Presidente Constitucional del
Estado Plurinacional de Bolivia, @LuchoXBolivia, Tweet (2:43 am,
November 16, 2023),
https://twitter.com/LuchoXBolivia/status/1724981446001967283. The Plurinational State
of Bolivia signed
the Genocide Convention on 11 December
1948 and ratified
it on 14 June 2005.
11 “President Lula says war in the Middle East is genocide”, AgenciaBrazil (25 October 2023), https://agenciabrasil.ebc.com.br/en/politica/noticia/2023-10/president-lula-says-war-middle-east-genocide. The
Federative Republic of Brazil signed the
Genocide Convention on 11 December 1948 and ratified it on 15 April 1952.
12 Gustavo Petro, Presidente de la República de Colombia, @petrogustavo,
Tweet (4:00 am, November 1, 2023) https://twitter.com/petrogustavo/status/1719565081371935150. The Republic
of Colombia signed
the Genocide Convention on 12 August 1949 and ratified
it 27 October 1959.
13 Ed Newman, “Diaz-Canel says Cuba will not accept ignoring genocide
against Palestinians”, Radio Havana Cuba (29
October 2023), https://www.radiohc.cu/en/noticias/nacionales/337800-diaz-canel-says-cuba-will-not-accept-ignoring- genocide-against-palestinians.
The Republic of Cuba signed
the Genocide Convention on 28 December
1949 and ratified
it on 4 March 1953.
14 “Iranian
president condemns Gaza ‘genocide’ in meeting with Putin”, NBC News (7 December 2023),
https://www.nbcnews.com/video/iranian-president-condemns-gaza-genocide-in-meeting-with-putin-199670853701. The Islamic Republic of Iran signed the Genocide Convention on 8 December
1949 and ratified it on 14 August 1956.
15 Recep
Tayyip Erdoğan, President of Türkiye and AK Party Chairman, @RTErdogan, Tweet,
(4:30 pm, 18 October 2023),
https://twitter.com/RTErdogan/status/1714665167978369531. The Republic of Türkiye
acceded to the Genocide Convention on 31 July 1950.
16 Nicolás Maduro, Presidente de la República Bolivariana de Venezuela, @NicolasMaduro, Tweet (7:40 pm, November
4, 2023) https://twitter.com/NicolasMaduro/status/1720888719568191585. The Bolivarian Republic of Venezuela acceded to the
Genocide Convention on 12 July 1960.
17 “President Abbas urges Biden to stop Israel’s ongoing genocide of
Palestinians”, WAFA (18 November
2023), https://english.wafa.ps/Pages/Details/139394. The State of Palestine acceded
to the Genocide Convention on 2 April
2014. 18 UN, Meetings Coverage
and Press Releases,
Seventy-Eighth Session, 39th
and 40th Meetings, GA/12566, Staggering Loss of Life in Gaza, Follow-on to
Temporary Truce Dominate General Assembly Debate on Decades-Long Question of
Palestine, GA/12566 (28 November 2023), https://press.un.org/en/2023/ga12566.doc.htm.
The People’s Republic of Bangladesh acceded to the Genocide Convention on 5
October 1998.
19 UN News, UN General Assembly adopts Gaza resolution
calling for immediate and sustained ‘humanitarian truce’ (26
October 2023), https://news.un.org/en/story/2023/10/1142847. The Arab Republic
of Egypt signed
the Genocide Convention on 12 December 1948 and
ratified the Convention on 8 February 1952.
20 “Live updates
| Israel rebuffs
US push for humanitarian pause, says hostages
must be released
first”, Associated Press (3 November 2023), https://web.archive.org/web/20231117082155/https://thehill.com/
homenews/ap/ap-international/ap-live-updates-israeli-troops-tighten-encirclement-of-gaza-city-as-top-us-diplomat-arrives- in-israel/. The Republic of Honduras signed the Genocide Convention on 22 April
1949 and ratified the Convention on 5 March 1952.
21 “Israel subjects Palestinians ‘to genocide,’ says Sudani”, Rudaw (6 November 2023), https://www.rudaw.net/english/middleeast/06112023. The Republic of Iraq acceded to the Genocide
Convention on 20 January 1959.
22 “Jordan’s foreign minister says Israel aiming ‘to empty Gaza of its
people’”, AlJazeera (10 December
2023), https://www.aljazeera.com/news/2023/12/10/jordan-foreign-minister-says-israel-aiming-to-empty-gaza-of-its-people. The Hashemite Kingdom of Jordan acceded to the Genocide Convention on 3 April
1950.
23 UN, Meetings
Coverage and Press Releases, 9451st Meeting, SC/15462, Amid Increasingly Dire Humanitarian Situation in Gaza, Secretary-General Tells
Security Council Hamas Attacks Cannot Justify Collective Punishment of
Palestinian People (24 October 2023), https://press.un.org/en/2023/sc15462.doc.htm.
The State of Libya acceded to the Genocide Convention on 16 May 1989.
24 Ministry
of Foreign Affairs, Malaysia, Malaysia
Acknowledges Breakthrough in the United Nations Security Council on
the Israeli-Palestinian Conflict (17 November 2023), https://www.kln.gov.my/web/guest/-/malaysia-acknowledges- breakthrough-in-the-united-nations-security-council-on-the-israeli-palestinian-conflict. Malaysia
acceded to the Genocide Convention on 20
December 1994.
25 Neville Gertze, Ambassador of Namibia to the United Nations, Ministry of
International Relations and Cooperation- Namibia, Facebook (25
October 2023), https://fb.watch/oTgjaUXQdO/. The Republic of Namibia acceded
to the Genocide Convention on the 28 November 1994.
26 Naveed Butt, “Pakistan terms Gaza siege genocide of Palestinians”, Business Recorder (16 October 2023), https://www.brecorder.com/news/40268277. The Islamic Republic
of Pakistan signed
the Genocide Convention on 11 December 1948
and acceded to the Convention on 12 October
1957.
27 UN, Meetings Coverage and Press Releases, Seventy-Eighth Session 24th and 25th Meetings, GA/SHC/4385, Third Committee Spotlights Human Rights
Abuses in Conflicts, Stressing Need to End Terrorist Attacks, Genocide, Illegal
Hostage-Taking, Enforced Displacement (17 October 2023),
https://press.un.org/en/2023/gashc4385.doc.htm. The Syrian
Arab Republic acceded to the Genocide Convention on 25 June 1955.
and Tunisia,28 have
also referred to genocide or the risk thereof in Gaza; as have heads of
State and State officials from non-State
parties to the Genocide Convention, including Qatar29 and Mauritania.30 Speaking on behalf of the ‘Arab Group’ at the
9498th meeting of the
United Nations Security Council on 8
December 2023, ahead of the United
Nations Security Council vote on a ceasefire, Egypt’s representative stated
that the “[c]ivilian fatalities [in Gaza] lay bare the lie that the war is
against an armed group. Rather, it is a collective punishment and genocide against the Palestinian people […]
Citing “the extensive destruction of civilian infrastructure and the targeting
of United Nations staff members”, he stated
that “the forcible displacement of 85 per cent
of Gaza’s people, living in dire circumstances, represents . . . an effort to eliminate the Palestinian people.”31
13. Having regard to the fact that the prohibition of genocide has the character of a peremptory norm and that the obligations under the Convention are owed erga omnes and erga omnes partes,32 Israel has been made fully aware of the grave concerns expressed by the international community, by States Parties to the Genocide Convention, and by South Africa in particular, as to Israel’s failure to cease, prevent and punish the commission of genocide. South Africa’s concern has been expressed, inter alia, as follows:
—
On 30 October 2023, the South African Department of International
Relations and Cooperation issued a statement calling on the international
community to hold Israel accountable for breaches of international law. Warning
that “the crime of genocide, sadly
looms large” in Gaza, the statement
recalled that “President Lula da Silva of Brazil has called the attacks on Gaza
a genocide” and that the South African Minister of International Relations and
Cooperation, Naledi Pandor, addressing the United Nations Security Council on
24 October 2023, had also “reminded the international community not to stand
idle while another genocide is unfolding”.33
—
On 7 November, addressing the South African National
Assembly, South Africa’s International
Relations Minister warned that “[t]he crime of genocide sadly looms large
in the current situation in Gaza”, recalling that “in 1994, a genocide occurred
on the African continent with much of the whole world watching as innocent
people were massacred”, and underscoring that South Africa could not stand by
and allow that to happen again.34
—
On 10 November 2023, the Director-General of South Africa’s Department of International Relations and Cooperation (“DIRCO”),
conducted a formal diplomatic
 |
28 United Nations, Meetings
Coverage and Press Releases, 9451st Meeting, SC/15462, Amid Increasingly Dire Humanitarian
Situation in Gaza, Secretary-General Tells Security Council Hamas Attacks
Cannot Justify Collective Punishment of Palestinian People (24 October
2023), https://press.un.org/en/2023/sc15462.doc.htm. The Republic of
Tunisia acceded to the Genocide Convention on the 29 November 1956.
29 “Qatari
emir: ‘This is a genocide committed by Israel’”, Al Jazeera English (5 December 2023),
https://www.youtube.com/watch?v=drOuwKvDt8o.
30 “Mauritania Condemns
Israeli Heinous Crimes
in Gaza”, Agence Mauritanienne d’Information (18 October
2023), https://ami.mr/en/archives/11732.
31 UN Meetings
Coverage, 9498th Meeting, SC/15518
(8 December 2023), https://press.un.org/en/2023/sc15518.doc.htm
(emphasis added).
32 The Gambia v. Myanmar, Provisional Measures, Order
of 23 January 2020, p. 17, para. 41.
33 South Africa,
Department of International Relations and Cooperation (‘DIRCO’), South Africa calls for the International
community to hold Israel accountable for breaches of International Law (30 October
2023), https://www.dirco.gov.za/south- africa-calls-for-the-international-community-to-hold-israel-accountable-for-breaches-of-international-law/.
34 South Africa,
DIRCO, Ministerial Statement on the Ongoing
Israeli-Palestinian Conflict by Dr GNM Pandor, Minister
for International Relations and Cooperation, in the National Assembly
House of Parliament (7 November 2023) https://www.dirco.gov.za/ministerial-statement-on-the-ongoing-israeli-palestinian-conflict-by-dr-gnm-pandor-minister-for- international-relations-and-cooperation-in-the-national-assembly-house-of-parliament-7-november-2023/.
démarche of the Ambassador of
the State of Israel to South Africa, advising him that while South Africa
“condemned the attacks on civilians by Hamas” which “should be
investigated for war crimes”, “the
response by Israel was unlawful”, and that South Africa “wants the ICC to
investigate the leadership of Israel” for crimes including genocide.35
— On 13
November 2023, at a meeting at the Presidential residence with the leadership
of the South African Jewish Board of Deputies,
at which they called inter alia for the re-opening of the South African
Embassy in Israel, the President of South Africa, Mr Cyril
Ramaphosa “condemn[ed] the genocide that is being inflicted against the
people of Palestine, including women and children, through collective punishment and ongoing bombardment of Gaza”.36
— On 17
November 2023, during the course of a State visit to Qatar, the President of South Africa, announced
that South Africa was referring the Situation in the State of Palestine to the International Criminal
Court, expressing his abhorrence for “what is happening right now in Gaza, which has now turned into a concentration camp where genocide is taking place”.37
— Later on 17
November 2023, the Embassy of South
Africa in The Hague, acting on
behalf of South Africa, jointly with three other States parties to the Genocide
Convention — namely Bangladesh, Bolivia, and Comoros — and Djibouti, referred
the Situation in the State of Palestine
to the Office of the Prosecutor of the
International Criminal Court, requesting that the
Prosecutor vigorously investigate crimes within the jurisdictional scope
of the Court, including the crime of
genocide, as provided for in Article 6 (a), (b) and (c) of the Rome Statute of the International Criminal Court (‘Rome Statute’).38
—
On 21 November 2023, addressing the Extraordinary
Joint Meeting of BRICS (Brazil, Russia, India, China, and South Africa) Leaders
and Leaders of invited BRICS members on the situation in the Middle East called
to address “a matter of grave global
concern” in the Middle East, the President
of South Africa asserted that “[t]he deliberate denial of medicine, fuel,
food and water to the residents of Gaza is tantamount to genocide”.39
—
On 12 December 2023, speaking at the 10th Emergency Special Session of
the United Nations General Assembly — at which Israel was represented — the South African Ambassador to the United
Nations stated that “[t]he events
of the past six weeks in Gaza have
illustrated that Israel is acting contrary to its obligations in terms of the
Genocide Convention”. She underscored that, “[a]s a UN Member State and owing
to South Africa’s painful past
35 South Africa,
DIRCO, DIRCO démarches the Ambassador of the State
of Israel (10
November 2023) https://www.dirco.gov.za/dirco-demarches-the-ambassador-of-the-state-of-israel/.
36 South
Africa, The Presidency, President
Ramaphosa Meets with the South African Jewish Board of Deputies (13
November 2023),
https://www.thepresidency.gov.za/president-ramaphosa-meets-south-african-jewish-board-deputies. 37 Kate Bartlett,
“South Africa Refers Israel to The Hague Over Gaza 'War Crimes'”,
VOA News (17 November
2023) https://www.voanews.com/a/south-africa-refers-israel-to-the-hague-over-gaza-war-crimes-/7359022.html.
38 South Africa,
Embassy in the Netherlands, Letter from the South African Embassy
in the Netherlands to the Prosecutor of the International Criminal Court (17
November 2023), https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral- Palestine-Final-17-November-2023.pdf.
39 South Africa, the Presidency, Opening
remarks by President Cyril Ramaphosa to the Extraordinary Joint Meeting of
BRICS Leaders and Leaders of invited BRICS members on the situation in the
Middle East (21 November 2023), https://www.thepresidency.gov.za/opening-remarks-president-cyril-ramaphosa-extraordinary-joint-meeting-brics-leaders- and-leaders.
experience of a system of
apartheid, this impresses on us, as Member States to take action in
accordance with international
law.”40
— On 21
December 2023, South Africa sent a Note
Verbale to the Embassy of Israel in South Africa, in which South Africa
raised its concerns about “credible reports that acts meeting the threshold of
genocide or related crimes as defined in the 1948 Convention on the Prevention and Punishment of Genocide,
have been and may still be committed in the context of the conflict” in Gaza. The Note Verbale recalled that “[a]s a
State Party to the Convention on the Prevention and Punishment of the Crime of
Genocide, South Africa is under a treaty obligation to prevent genocide from
occurring, and therefore calls upon Israel which is also a State Party to the
Convention to immediately cease hostilities in Gaza and to refrain from conduct
constituting or failing to prevent violations of its obligations under the
Convention”. South Africa, “[a]larmed by rhetoric from Israeli officials and
others”, also called on Israel “to prevent and punish direct and public
incitement to genocide”. This served to communicate directly to Israel South
Africa’s claims regarding the fulfilment of its own obligations under the
Genocide Convention and breaches by Israel of its obligations under the
Genocide Convention and the detail thereof.41
14.
Israel has not responded directly to South Africa’s
Note Verbale sent on 21 December 2023. However, Israel has publicly rejected
any suggestion that it has violated international law in its military campaign
in Gaza. Notably, Israel has dismissed as “outrageous and false” the assertion that Israel’s military
attacks on Gaza meet “the legal definition of genocide” and are aimed at “not just simply the killing of innocent
people and the destruction of their livelihoods but a systematic effort to
empty Gaza of its people”.42 Israel
denies that its conduct in Gaza violates its obligations under the Genocide
Convention, asserting that “[t]he accusation of genocide against Israel is not
only wholly unfounded as a matter of
fact and law, it is morally repugnant” and “antisemitic”.43 Moreover, Israel has engaged
and continues to engage in acts and omissions against the Palestinian people in
Gaza as have been asserted to be genocidal and, by its attitude and conduct,
has refuted any suggestion that its actions in Gaza are constrained by its
obligations under the Genocide Convention. Indeed, the Israeli Prime Minister
asserted on 26 December 2023: “We are not stopping. We are continuing to fight,
and we are deepening the fighting in the
coming days, and this will be a long battle and it is not close to being
over."44 Israel’s
own conduct therefore serves to underline the parties’ disagreement. South
Africa has not resiled from its own position that it is responsible as a State
party to the Genocide Convention to act to prevent genocide or a risk thereof in Gaza.
15.
According to the established case law of the Court, a dispute is “a disagreement
on a point of law or fact, a conflict
of legal views or interests”
between parties.45 Such a disagreement or “positive
 |
40 UN News, UN
General Assembly votes by large majority for immediate humanitarian ceasefire
during emergency session
(video of the session at
1:13:37) (12 December 2023) https://news.un.org/en/story/2023/12/1144717.
41 South
Africa, DIRCO, Note Verbale (21
December 2023).
42 “Jordan says Israel aims to expel Palestinians from Gaza”, Reuters (10 December 2023), https://www.reuters.com/world/middle-east/jordan-says-israel-aims-expel-palestinians-gaza-2023-12-10/.
43 Israeli
Ministry of Foreign Affairs, The War
Against Hamas: Answering Your Most Pressing Questions (15 December
2023), https://www.idf.il/en/mini-sites/hamas-israel-war-23/all-articles/the-war-against-hamas-answering-your-most- pressing-questions/.
44 Statement
by Israeli Prime Minister to Likud Party, 25 December 2023: Jeremy Sharon,
"After rare visit to Gaza,
Netanyahu says war ‘not close to being over’", The Times of Israel (25 December 2023), https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/.
45 The Gambia v. Myanmar, Provisional
Measures, Order of 23 January 2020, p. 13, para.
27, citing Land and Maritime Boundary between
Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.
opposition of the claim by one party by the other need not necessarily be
stated expressis verbis… the position
or the attitude of a party can be established by inference, whatever the
professed view of that party”.46
16.
There is plainly a dispute between Israel and South
Africa relating to the interpretation and application of the Genocide
Convention, going both to South Africa’s compliance with its own obligation to
prevent genocide, and to Israel’s compliance with its obligations not to commit
genocide and to prevent and punish genocide — including the direct and public
incitement to genocide — and to make reparations to its victims and offer
assurances and guarantees of non-repetition.
Given that South Africa’s claim concerns
its own obligations as a State party to the Genocide
Convention to act to prevent genocide — to which Israel’s acts
and omissions give rise — South Africa plainly has standing in relation
thereto. Moreover, given that “any State party to the Genocide Convention, and not only a specially affected
State, may invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that
failure to an end”, South Africa also “has prima
facie standing” to submit to the Court its dispute with Israel “on the
basis of alleged violations of obligations under the Genocide Convention”.47
17.
Therefore, pursuant to Article 36 (1) of the Court’s Statute and Article IX of
the Genocide Convention, the Court has jurisdiction to hear the claims
submitted in the present Application by South Africa against Israel.
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