The ICJ is facing a stark choice

“The circumstance could not be more urgent”, says South Africa in seeking to persuade the International Court of Justice (ICJ) to “indicate provisional measures”: make binding interim orders against Israel to immediately suspend its military operations in Gaza; to stop killing and injuring Palestinians; and to stop “deliberately inflicting conditions of life calculated to bring about [their] destruction”.

Israel has not submitted a written response to South Africa’s application. It  is not a requirement at this preliminary stage but it will be opposing the application at a provisional measures hearing set down for Thursday and Friday at the Peace Palace in The Hague. 

Israel has called South Africa’s case a “blood libel”.

Due to there being  no answering papers yet, Israel’s case on the provisional measures, in law, is yet to be revealed, even to South Africa’s lawyers. South Africa will argue its case on Thursday and Israel is scheduled to respond on Friday.

South Africa also wants the court to implement, as provisional measures, that Israel stop the expulsion of Palestinians from their homes, stop depriving them of food and water and stop preventing their access to humanitarian assistance and medical supplies.

It wants an order that will prevent the destruction of evidence crucial for its case in the longer term, and that will allow access by fact-finding missions, and international mandates “to assist in ensuring the preservation and retention of said evidence”.

The provisional measures hearing is the first part of South Africa’s case against Israel.

Its bigger case, to be argued in due course, is that Israel has violated the Genocide Convention in a number of ways. Israel is not only committing genocide in Gaza, a breach of article III (a) of the convention, it is also failing to prevent genocide in violation of article I, conspiring to commit genocide in violation of article III (b), directly and publicly inciting genocide in violation of article III (c), attempting to commit genocide in violation of article III (d), being complicit in genocide in violation of article III (e) and failing to punish genocide in violation of articles IV and V. There are others.

But even for the interim proceedings, the breadth of these alleged violations is important, because at this point all South Africa needs to show the court is that it has a “plausible” case. For the implementation of provisional measures, South Africa needs only to get its foot in the door.

At this stage of the proceedings the court is not called upon to determine whether it is satisfied that the rights which South Africa seeks to protect exist. It need only decide whether it is satisfied the rights asserted by South Africa on the merits, and for which it is seeking protection, are “at least plausible”.

In seeking to establish an “at least plausible” case, South Africa has set out, in an 84-page application, a detailed, fact-heavy, history of Israel’s treatment of Palestinians stretching much further back that October 7, which makes for grim reading. Most of its sources for this history are UN reports.

Acts of genocide “inevitably form part of a continuum”, says South Africa.

This was recognised by Raphael Lemkin, who coined the term genocide, says the application.

“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.”

South Africa refers to the “stringent” blockade of Gaza after Hamas’ electoral victory in 2006, which saw travel restrictions imposed by Israel and led to the World Health Organisation reporting that 839 people had died waiting for medical permits to leave Gaza for urgent medical treatment between 2008 and 2021. It refers to the food import restrictions imposed between 2007 and 2010 “in accordance with calories consumed per person, to limit the transfers of food to a “humanitarian minimum”.

It refers to the fishing restrictions and the reduction of agricultural area available to Palestinians for farming.

“As long ago as 2015, the UN conference on trade and development warned that the restrictive measures imposed by Israel risked Gaza becoming uninhabitable by 2020,” says the application.

Between September 29 2000 and October 7 2023, about 7,569 Palestinians were killed, including 1,699 children, says the application. It contains excerpts by UN fact-finding missions in 2001, 2008, 2009, 2015 and 2019, all of which sounded the alarm about brutality and abuses, sometimes possible war crimes and crimes against humanity, by the Israeli Defence Force.

In 2021, the special rapporteur on the situation of human rights in Palestinian territories said “regrettably, the international community’s remarkable tolerance for Israeli exceptionalism in its conduct of the occupation has allowed realpolitik to trump rights, power to supplant justice and impunity to undercut accountability”.

In this way, the application — perhaps in anticipation of a possible argument from Israel — seeks to dispel the idea that Israel’s current actions are a specific response to Hamas’ horrific attack on October 7 last year. The overall picture is that what Israel is doing is consistent with what it has been doing for years: more of the same, but infinitely and tragically worse.

This is supported by the application’s section on the West Bank, where Hamas is not in control, yet the application details the “institutionalised regime of discriminatory laws, policies and practices applied by Israel [that] subjects Palestinians to what constitutes an apartheid regime”.

These include a segregating wall, discriminatory land zoning, a dual legal system, detentions without trial, routine violent house raids and deaths in custody. Israelis in the West Bank get more water than Palestinians, Palestinians’ homes are demolished to build houses for settlers. There are areas that are off-limits to Palestinians. For South Africans, these features will be all too familiar.

At least 2,186 Palestinians have been internally displaced in the West Bank since October 7 “as a result of extreme settler violence”, says the application. In 2023, 495 Palestinians were killed in the West Bank, with 295 of these dying after October 7.

All this is detailed by the application before it even gets to the events after the Hamas attack on October 7. The application “unequivocally condemns” the targeting of civilians and the taking of hostages by Hamas.

On Israel’s current war, the application stresses the urgency of the court’s intervention, quoting UN staff that Gaza is “a living hell” and “we are out of words to describe what is going on”.

Nowhere is safe in Gaza, said the UN secretary-general, recounts the application.

This aspect of the application is significant for South Africa’s case because, though Israel’s response in court is yet to be revealed, its government has emphasised it has created humanitarian corridors and safe zones and it has warned civilians to evacuate ahead of bombing, said spokesperson for Israel Eylon Levy. Israel may argue these actions cannot be reconciled with the special intent required to make a finding of genocide.

The South African application says: “Palestinians in Gaza have been killed in their homes, in places where they sought shelter, in hospitals, in UNWRA schools, in churches, in mosques, and as they tried to find food and water for their families. They have been killed if they failed to evacuate, in the places to which they have fled, and even while they attempted to flee along Israeli declared ‘safe routes’”.

The application says the forced evacuations are permanent for many Palestinians, with an estimated 355,000 homes destroyed, or 60% of the entire housing stock in Gaza.

“The forced displacements in Gaza are genocidal, in that they are taking place in circumstances calculated to bring about the physical destruction of Palestinians in Gaza,” says the application.

Israel has pushed the Palestinian population to the brink of famine, it says. Most Palestinian people are starving. Water is severely depleted.

“Experts are predicting more Palestinians in Gaza may die from starvation and disease than air strikes, and yet Israel is intensifying its bombing campaign, precluding the effective delivery of humanitarian assistance to Palestinians. It is clear Israel is, through its actions and policies in Gaza, deliberately inflicting on Palestinians conditions of life calculated to bring about their destruction.”

The application has compiled a list of “expressions of genocidal intent” which it says, when combined with the level of killing, maiming, displacement and destruction, are “evidence of an unfolding and continuing genocide”.

The list includes statements by Israeli Prime Minister Benjamin Netanyahu, president Isaac Herzog, defence minister Yoav Gallant and national security minister Itmar Ben-Gvir.

It also includes statements made by other “prominent members of Israeli society, including former parliamentarians and news anchors” which South Africa says constitute clear direct and public incitement to genocide but have gone “unchecked and unpunished by the Israeli authorities”.

Here, South Africa may be anticipating another argument from Israel: that some of these statements were not made by representatives of the Israeli state. But they would be relevant to whether the state is preventing genocide or failing to punish genocide, which is also punishable under the convention and therefore capable of engaging the court’s power to indicate provisional measures.

Without knowing anything about Israel’s case it is difficult to assess the strength of South Africa’s. However, a number of international law experts and commentators have agreed that, particularly on provisional measures, South Africa’s case is strong if the court decides based on the law, including its own judgments, and the facts.

For some, the case may be a test of the court itself and for the whole system of public international law, which has long been the subject of criticism.

Mohsen Al Attar, associate dean of learning and teaching at Xi’an Jiaotong-Liverpool University, said in a recent blog post: “Israel backed itself into a corner by chest-thumping in full daylight its violations of the Genocide Convention, the Geneva Conventions, and the most basic tenets of IHL [ international humanitarian law], leaving the ICJ with no option but to accept South Africa’s robust intervention.

“The ICJ faces a stark choice: find in favour of South Africa and indicate provisional measures or damn international law into oblivion.”

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