The Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) is an ongoing case that was brought before the International Court of Justice on 29 December 2023 by South Africa regarding Israel's conduct in the Gaza Strip during the Gaza war, that resulted in a humanitarian crisis and mass killings.
South Africa alleged that Israel had committed and was committing genocide in Gaza, contravening the Genocide Convention, including what South Africa described as Israel's 75-year apartheid, 56-year occupation, and 16-year blockade of the Strip. South Africa requested that the ICJ indicate provisional measures of protection, including the immediate suspension of Israel's operations. Israel characterized South Africa's charges as "baseless", accusing the country of "functioning as the legal arm" of Hamas. Israel said that it was conducting a war of self-defense in accordance with international law following the Hamas-led attack on its territory on 7 October 2023.
Two days of public hearings were held on 11 and 12 January 2024 at the Peace Palace in The Hague. The court ruled that it is plausible that Israel's acts could infringe rights of the Palestinian people protected by the Genocide Convention and issued provisional measures, in which it ordered Israel to take all measures to prevent any acts contrary to the 1948 Genocide Convention, but did not order Israel to suspend its military campaign. The court also expressed concern about the fate of the hostages held in the Gaza Strip and recognized the catastrophic situation in Gaza. In late February, Human Rights Watch and Amnesty International asserted that Israel had failed to comply with the ICJ's provisional measures and that obstructing the entry and distribution of aid amounted to war crimes.
On 28 March 2024, following a second request for additional measures, the ICJ ordered new emergency measures, ordering Israel to ensure basic food supplies, without delay, as Gazans face famine and starvation. On 24 May, by a vote of 13–2, the court issued what some experts considered to be an ambiguous order but which was widely understood as requiring Israel to immediately halt its offensive in Rafah. Israel rejected this interpretation and continued with its offensive operations. In April 2024, the ICJ requested comprehensive legal opinions from both countries. South Africa submitted its memorial in October 2024, while Israel submitted its opinion in March 2026 after two delays.
Background
In 1948, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which defined genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". The acts were: killing members of the protected group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the protected group. Victims must be targeted because of their real or perceived membership of a protected national, ethnic, racial or religious group.
Both Israel and South Africa have signed and ratified the Genocide Convention without reservation.
Proceedings
Proceedings were instituted on 29 December 2023 at the International Court of Justice pursuant to the Genocide Convention, and brought pursuant to Article IX of the convention.
Balkees Jarrah, associate international justice director at Human Rights Watch, notes that the ICJ case is not a prosecution of individuals, and does not directly involve the International Criminal Court, which is a separate body that is currently carrying out its own investigation. Jarrah stated that the case presents an opportunity to "provide clear, definitive answers on the question of whether Israel is committing genocide against the Palestinian people".
According to legal academics, South Africa's request for provisional measures against Israel does not require a determination of whether Israel actually perpetrated genocide, but instead requires the determination that it is "plausible" that Palestinian rights under the convention were violated. Recent rulings in regard to the granting of provisional measures have taken between two weeks and one month after hearings. A final judgement on the case could take years.
Separately, hearings begin in February 2024 in regard to a U.N. request for a non-binding advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem.
On 24 January 2024, the Court announced that it would rule on the provisional measures request on 26 January 2024.
On 12 February 2024, South Africa requested that the court consider whether a planned Israeli military offensive against Rafah "has already led to and will result in further large-scale killing, harm and destruction", in breach both of the Genocide Convention and of the Court's Order of 26 January."
South African government position
South Africa accuses Israel of committing acts of genocide in the Gaza Strip in violation of the 1948 Genocide Convention, which defined and prohibited genocide. South Africa brought the case by invoking its "obligation to prevent genocide" as a signatory to the United Nations Genocide Convention. The South African legal team includes John Dugard, Adila Hassim, Tembeka Ngcukaitobi, Max du Plessis, Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, Vaughan Lowe and Blinne Ní Ghrálaigh. South Africa has also appointed former Deputy Chief Justice Dikgang Moseneke as an ad hoc judge. During his period of imprisonment on Robben Island, Moseneke had met and befriended fellow anti-apartheid activist and future President Nelson Mandela, who went on to become a supporter of the Palestinian cause himself. A number of international political figures will be joining the South African delegation, including Jeremy Corbyn and Jean-Luc Mélenchon.
In the country's 84-page application it alleged that Israel's actions "are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group". South Africa requested that the ICJ issue a binding legal order on an interim basis (i.e., prior to a hearing on the merits of the application), requiring Israel to "immediately suspend its military operations in and against Gaza." Additionally, the incumbent South African president Cyril Ramaphosa also compared Israel's actions to apartheid.
The submission asserts 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 ethnical group". Genocidal actions alleged in the suit included the mass killing of Palestinians in Gaza, the destruction of their homes, their expulsion and displacement, as well as the blockade on food, water and medical aid to the region. South Africa alleged that Israel had imposed measures preventing Palestinian births through the destruction of essential health services vital for the survival of pregnant women and their babies. The suit argued that these actions were "intended to bring about their [Palestinians] destruction as a group".
In an effort to establish genocidal intent behind the actions, a very difficult task, South Africa cited statements by Israeli leaders, such as Prime Minister Benjamin Netanyahu's invocations to "Remember what Amalek has done to you," referencing the total destruction of Amalek by the Israelites in the Bible, President Isaac Herzog's statement "It's an entire nation out there that is responsible. It's not true this rhetoric about civilians not aware not involved. It's absolutely not true. ... and we will fight until we break their backbone," and Minister of Defense Yoav Gallant's 'situation update' advising Israel is "imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and are acting accordingly." and military officials and representatives, asserting that these "indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group 'as such'". The submission further asserts that these statements constitute direct and public incitement to genocide which has gone "unchecked and unpunished" and is instead being implemented; on this, the submission cites Israeli soldiers on the ground. In October 2024, the South African team submitted hundreds of pages of evidence which it stated proved Israel's intent to commit genocide.
Requested provisional measures of protection
The South African application set out nine provisional measures of protection requested:
Israeli government position
After the filing of the charges on 29 December, the Israeli Foreign Ministry rejected the allegations "with disgust", stating that Israel operates according to international law and focuses its military actions solely against Hamas, and that the residents of Gaza are not the enemy. It asserted that it takes steps to minimize harm to civilians and to allow humanitarian aid to enter the territory and accused South Africa of "cooperating with a terrorist organisation that is calling for the destruction of the State of Israel" and the actions of South Africa as a blood libel. An Israeli government spokesperson later asserted that "History will judge South Africa for abetting the modern heirs of the Nazis".
On 2 January 2024, the Israeli government decided to participate in the ICJ proceedings, despite having previously refused to participate in previous international tribunals.
The Foreign Ministry conveyed through diplomatic channels that a ruling against Israel "could have significant potential implications not only in the legal realm but also in practical, bilateral, economic, and security-related aspects." The ministry characterized the South African charges as "baseless" and further described South Africa as "functioning as the legal arm" of Hamas.
The government appointed former President of the Supreme Court of Israel, Aharon Barak as an ad hoc judge to sit on the ICJ, as permitted by the court's statutes. Barak's appointment was supported by the majority of the Israeli public in opinion polls, due to his status as an internationally respected legal authority, but was criticised by several far-right Israeli politicians, including Ministers Bezalel Smotrich and Amihai Ben-Eliyahu. In July 2024, following Barak's resignation for personal reasons, Israel announced the appointment of the conservative Israeli legal scholar, Ron Shapira, to replace Barak as the ad-hoc associate judge on the ICJ.
Israeli Prime Minister Benjamin Netanyahu stated that it was Hamas that was committing genocide, and "would murder all of us if it could". Netanyahu added that the Israel Defense Forces are "acting as morally as possible". In a later statement, Netanyahu stated that "nobody" could stop Israel from continuing its actions in Gaza, including The Hague. The Israel Defense Forces stated that it takes actions to reduce civilian casualties such as warning civilians in targeted areas and not striking certain areas with civilians. The Israeli government stated multiple times that it wants to eliminate Hamas and not Palestinians.
Israel argues that it is conducting a war of self-defense in accordance with international law following the Hamas-led attacks on Israeli territory on 7 October 2023, in which some 1,200 people were killed and the continuing firing of missiles at civilian population centers and holding of hostages; that the official directives of the Israeli war cabinet and military authorities responsible for directing the war do not indicate any policy of genocidal intent, and while acknowledging the high incidence of civilian casualties, asserts that this because Hamas and other militant groups use civilian infrastructure as cover for their military assets and operations; and that it is following international law and allowing humanitarian aid into the territory.
The representatives selected to present Israel's case at the ICJ hearing on 12 January were Tal Becker, Ministry of Foreign Affairs Legal Adviser, Malcolm Shaw, British jurist and Professor of International Law, Christopher Staker, British barrister, Omri Sender, Israeli Attorney at Law and Galit Raguan and Gilad Noam, Deputy Attorney Generals for International Law in the Ministry of Justice, along with several other supporting legal counsel and advisors.
The representatives of Israel responded to South Africa's charges at the ICJ by asserting that the charges lacked both legal and factual basis:
Representatives of Israel argued that the context of the conflict, particularly the atrocities committed by Hamas on 7 October, demonstrate that if there have been acts that may be characterized as genocidal, they were perpetrated against Israel. They emphasized that Israel is committed to complying with international law and argued that Hamas showed contempt for that law by using Palestinian civilians as human shields and civilian infrastructure for military uses, firing rockets indiscriminately at Israeli civilian targets and by taking and holding hostages. They maintained that Israel makes efforts to mitigate civilian harm and address the humanitarian situation in Gaza by warnings for civilians to evacuate areas of planned attacks, permitting the entry of aid, and the establishment of field hospitals.
On legal grounds, the Israeli team argued that the court has no jurisdiction over this case, as no disputes exist between the country and South Africa. Shaw cited the exact dates of Israeli responses to the diplomatic notes it received, including proposals for meetings between South African and Israeli officials to talk about Gaza. Israel further argued that South Africa had failed to show intent, a fundamental element of genocide, about the acts which are the subject of the complaint, in order for it to fall within the provisions of the Genocide Convention and therefore asserted that the ICJ lacked jurisdiction over the Gaza war. Shaw contended that the South African case provided only a partial narrative and urged the court to consider the decisions of the Israeli cabinet instead of focusing on "random statements by politicians who are not decision-makers".
Israeli team maintained that the requested provisional measures would deprive Israel of its obligation under international law to provide defense to its citizens, to the hostages, and to over 110,000 internally displaced Israelis; it would also encourage further attacks.
Initial ruling on plausibility
In its initial ruling on 26 January 2024, the court accepted the plausibility of "at least some of the rights claimed by South Africa" under the Genocide Convention, and found it has prima facie jurisdiction to adjudicate the dispute. The Court did not specify which rights, and clarified that this was not a ruling on whether Israel was in breach of the convention. According to Joan Donoghue, the President of the court during the initial hearing, this did not mean that the court had found that Israel was plausibly committing genocide; instead the test that it was considering was whether the "rights that are asserted by the applicant, in this case South Africa" are plausible. She said the court decided that these asserted rights were plausible; that Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the court.
The standard for a provisional finding of plausibility is low, and much lower than the standard for establishing a violation occurred, which would be determined at the conclusion of the case. According to Todd F. Buchwald there is a "gap between plausibility and the much higher level of certainty that the Applicant will eventually need to satisfy in order to establish that the Respondent has violated its obligation".
The court stated, in paragraphs 30 and 54 of the ruling, as follows:
30. ... In the Court's view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.
54. In the Court's view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel's compliance with the latter's obligations under the Convention.
Ruling on provisional measures
In its Order of 26 January 2024, while not granting South Africa's request to order Israel to suspend its military operations in Gaza, the Court ordered Israel to take measures to prevent acts of genocide in the Gaza Strip, and to report to the Court regarding by 23 February 2024; to prevent and punish incitement to genocide; to allow humanitarian aid into Gaza; and generally, to take more measures to protect Palestinians. The court ordered the following provisional measures, compared against those requested by South Africa:
The votes for the six provisional measures were as follows:
15 votes to 2, with Julia Sebutinde and Aharon Barak dissenting
15 votes to 2, with Sebutinde and Barak dissenting
16 votes to 1, with Sebutinde dissenting
16 votes to 1, with Sebutinde dissenting
15 votes to 2, with Sebutinde and Barak dissenting
15 votes to 2, with Sebutinde and Barak dissenting
The Court also expressed "grave concern" about the fate of the hostages held in the Gaza Strip, and called for their immediate release as well as recognizing a catastrophic situation in Gaza "at serious risk of deteriorating further" prior to a final verdict.
In response to the ruling, Israeli prime minister Benjamin Netanyahu said "The charge of genocide leveled against Israel is not only false, it's outrageous, and decent people everywhere should reject it ... Israel will continue to defend itself against Hamas, a genocidal terror organization". He further affirmed Israel's "unwavering commitment" to international law.
Riyad al-Maliki, Foreign Affairs Minister of the State of Palestine, said that the Court "ruled in favour of humanity and international law".
South Africa, a longstanding advocate for the Palestinian cause, praised the ruling. President Cyril Ramaphosa expressed his anticipation that Israel would comply with the ruling.
The Court's provisional ruling produced six sets of reasons: the Order of the Court, a dissent by Judge Julia Sebutinde, a separate opinion by Judge ad hoc Aharon Barak, and declarations by Judges Xue Hanqin, Dalveer Bhandari, and Georg Nolte.
Urgent request for additional measures
First request
On 12 February 2024, ahead of a planned Israeli military ground invasion of Rafah, South Africa submitted an "urgent request for additional measures under Article 75 (1)" due to the "developing circumstances in Rafah". South Africa requested the court to consider exercising its authority, as it argued a Rafah offensive would be in violation of both the Genocide Convention and the court's January interim order.
In its response on 15 February, Israel described South Africa's claims of an "unprecedented military operation" in Rafah on 11 February to rescue two Israeli hostages, which Hamas claimed had killed dozens of Palestinians, as an "outrageous distortion," and asserted that Hamas was demonstrating "contempt for the law" by failing to comply with the ICJ's call for the immediate and unconditional release of all remaining hostages. It characterized the South African submission as "evidence of a renewed and cynical effort by South Africa to use provisional measures as a sword, rather than a shield, and to manipulate the Court to protect South Africa's longtime ally Hamas, a genocidal terrorist organization, from Israel's inherent right and obligation to defend itself, in accordance with the law, from the terrorist assault it faces and to pursue the release of over 130 hostages."
On 16 February, the Court rejected South Africa's request, stating that the provisional measures that it had issued in January were applicable throughout the Gaza Strip, including in Rafah, and did not demand the indication of additional provisional measures, while also stressing that Israel must respect those earlier measures. After the ICJ declined to grant the emergency application, Kenneth Roth, the former director of Human Rights Watch and a professor at Princeton University, stated, "What the court just did though, it said, 'We already ordered all this to stop. Rather than repeating ourselves, it's up to the governments of the world, the UN Security Council, and foremost the US government, to stop this killing'".
Second request
On 6 March, South Africa filed a second request for additional measures, requesting the court to order additional emergency measures to require that Israel provide humanitarian assistance to address starvation and famine in Gaza. In its statement, South Africa argued, "The situation is urgent. South Africa has no choice but to approach the Court for the strengthening of the Provisional Measures in place to try prevent full-scale famine, starvation and disease in the Gaza Strip". Israel's legal team described South Africa's request as "wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the court itself".