IN FULL | John Dugard's submission to the ICJ

The submission by Prof John Dugard SC, counsel and advocate for South Africa in the case against Israel.

Jurisdiction:

Madam President, members of the Court. It is a great privilege to appear before you on behalf of the Republic of South Africa. In my speech today I will address the question of jurisdiction.

The people of South Africa and Israel both have a history of suffering. Both States have become parties to the Genocide Convention in the determination to end human suffering. In this spirit neither has attached a reservation to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide.

It is in terms of this Convention, dedicated to saving humanity, that South Africa brings this dispute before this Court.

The prohibition of genocide is a peremptory norm. Obligations under the Genocide Convention are erga omnes, obligations owed to the international community as a whole. States parties to this Convention are obliged not only to desist from genocidal acts but also to prevent them. That the obligation of States parties to prevent acts of genocide is the foundation of the Convention is clear from its placement in Article I of the Convention.

Article IX of the Genocide Convention makes it clear that States parties are guardians of the Genocide Convention. Unlike other treaties designed to protect human rights it does not oblige States to pursue negotiations as a prelude to approaching this Court. It does not treat the ending of genocidal acts as a bilateral affair between states. Instead, it envisages a situation in which a State, acting on behalf of the international community as a whole, seizes the jurisdiction of the Court as a matter of urgency to prevent genocide.

South Africa has long history of close relations with Israel. For this reason, it did not bring this dispute immediately to the attention of this Court. It watched with horror as Israel responded to the terrible atrocities committed against its people on 7 October 2023 with an attack on Gaza that resulted in the indiscriminate killing of innocent Palestinian civilians, most of whom were women and children.

The South African government repeatedly voiced its concerns, in the Security Council and in public statements, that Israel’s actions had become genocidal. On 10 November, in a formal diplomatic démarche, it informed Israel that while it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes, including genocide. As the Court will know, the definition of genocide in the Rome Statute repeats that of the Genocide Convention.

On 17 November South Africa referred Israel’s commission of the crime of genocide to the International Criminal Court (ICC) for “vigorous investigation”. In announcing this decision President Ramaphosa publicly expressed his abhorrence “for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place.” To accuse a State of committing acts of genocide and to condemn it in such strong language is a major act on the part of a State. At this stage it became clear that there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts.

South Africa repeated this accusation at a meeting of BRICS on 21 November 2023 and at an Emergency Special Session of the UN General Assembly on 12 December 2023. No response from Israel was forthcoming. None was necessary. By this time, the dispute had crystallised as a matter of law. This was confirmed by Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.

As a matter of courtesy, before filing the present application, on 21 December 2023, South Africa sent a Note Verbale to the Embassy of Israel to reiterate its view that Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State Party to the Genocide Convention, was under an obligation to prevent genocide from being committed. Israel responded by way of a Note Verbale that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute. Emailed late on 27 December 2023, this Note Verbale was received by the relevant team on 29 December 2023 after the present Application was filed.

On 4 January 2024, South Africa replied to this Note Verbale, highlighting Israel’s failure to provide any response to the matters raised by South Africa over the previous months, as reiterated in its Note Verbale. South Africa made it clear that, given Israel’s ongoing conduct against Palestinians in Gaza, the dispute referred to in its Note Verbale of 21 December 2023 remained unresolved and was “plainly not capable of resolution by way of a bilateral meeting.” Nevertheless, South Africa proposed a meeting on 5 January 2023 out of courtesy. Israel responded to this Note Verbale by proposing that “we reconnect to co-ordinate a meeting at the earliest opportunity” after the close of hearings in the present case. To this South Africa replied that such a meeting would serve no purpose. The Notes Verbales are to be found in the Judges’ Folder.

The existence of a dispute is a matter to be determined by an objective determination of the facts as they existed at the time of the filing of the application. At this time South Africa had accused Israel in the Security Council, the General Assembly and other public forums of engaging in genocidal acts. It had conducted a formal diplomatic démarche on Israel warning it that it viewed its conduct as genocidal. It had requested the ICC to vigorously investigate crimes under the Genocide Convention committed in the Gaza Strip by Israel and accused Israel inter alia of the deliberate targeting of civilians, intentionally causing starvation and impeding relief supplies. It had accused Israeli leaders of expressing the “intent of committing genocide.” Israel had flatly rejected South Africa’s accusations.

Despite these harsh accusations, Israel has persisted in its genocidal acts against the population of Gaza. What more evidence could be required to establish a dispute? It is precisely because of a situation of this kind, affecting the international community as a whole, that Article IX of the Genocide Convention does not require negotiations as a precondition to seizing the jurisdiction of the Court. Certainly a respondent State cannot prevent a referral to the Court by claiming that there is no dispute and that it wants discussions on this matter when the existence of a dispute is clear. For a State to insist on a timeframe for negotiations would be a licence to commit genocide and would run counter to the object and purpose of the Genocide Convention.

The question of the crystallisation of a dispute has been addressed by this Court in other cases in preliminary objections at the merits stage when the burden of proof is higher. Though the Court has generally adopted a flexible approach to this subject, it has laid down a number of tests for the existence of a dispute:(a) “It must be shown that the claim of one party is positively opposed by the other”; (b) The date for determining the existence of the dispute is the date of application but subsequent conduct may be considered; (c) Whether the dispute exists must be determined by an objective determination of the facts; (d) “[A]dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed.’ ”

When these propositions are applied to the facts of this case it is incontrovertible that a dispute exists between South Africa and Israel. South Africa strongly believes that what Israel is doing in Gaza amounts to genocide; Israel denies this and claims that such an accusation is legally and factually wrong and moreover is obscene.

An objective determination of the facts shows that a dispute existed on the date of submission of South Africa’s application and this has been confirmed by Israel’s subsequent statements and continuing conduct in Gaza. Israel must have been aware from South Africa’s public statements, démarche and referral to the ICC of Israel’s genocidal acts that a dispute existed between the two States.

The Court has indicated that in an application for provisional measures it is sufficient to show that there is a prima facie basis for jurisdiction. It is submitted that South Africa has convincingly established the existence of a dispute between it and Israel over the fulfilment of the latter’s obligations under the Genocide Convention.

It is further submitted that regard should be had to the special considerations that apply to the existence of a dispute under Article IX of the Genocide Convention between a State that brings an application in furtherance of its obligation to prevent genocide and a State accused of committing genocide.

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