On 29 December 2023, South Africa put forward the claim that Israel has violated its obligations under the Genocide Convention towards Palestinians in the Gaza strip before the International Court of Justice (ICJ). South Africa presented the case that ‘since 7 October 2023, [Israel] has failed to prevent genocide’ and that Israel’s ‘acts and omissions … are committed with the requisite specific intent…to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnic group.’ Proving genocidal intent is the most difficult element of satisfying the legal definition of genocide.
In South Africa’s application, it provided an overview of Israel’s genocidal acts committed against Palestinians in eight aspects: (1) Killing Palestinians in Gaza, (2) Causing serious bodily and mental harm, (3) Mass expulsion from homes and displacement of Palestinians in Gaza, (4) Deprivation of access to adequate food and water, (5) Deprivation of access to adequate shelter, clothes, hygiene and sanitation, (6) Deprivation of adequate medical assistance, (7) Destruction of Palestinian life in Gaza, and (8) Imposing measures to prevent Palestinian births.
On (1) and (2), South Africa highlighted the harm caused to Palestinian children. It cited UNICEF’s spokesperson James Elder who called Israel’s attacks on Gaza a ‘war on children.’ He explained that in most crises children have a casualty rate of around 20 per cent, but in Gaza, the figure doubles to 40 per cent. There are also reports of Israeli forces using white phosphorus in densely populated areas in Gaza, in which even small amounts of the substance can cause deep and severe burns, penetrating even bone. With no functioning hospitals in the North of Gaza, injured persons are reduced to ‘waiting to die’. South Africa also picked up on Israel’s engagement of dehumanisation towards Palestinians in Gaza, in which large number of civilians, including children, have been arrested, blindfolded, forced to undress and remain in the cold weather.
On (3), (4), (5) and (6), South Africa argued that the conditions deliberately inflicted by Israel are calculated to bring about the destruction of Palestinians in Gaza. By repeatedly issuing evacuation orders where in one instance, 1.1 million Palestinians in the North of Gaza had to move to the South of Gaza within a 24-hour window, approximately 85 per cent of the population have been forced from their homes. South Africa believes that the forced evacuation is necessarily permanent since Israel has destroyed amounting to 60 per cent of the entire housing stock in Gaza. It referenced UN Secretary-General that focusing on the number of tricks permitted into Gaza daily is misleading since ‘the real problem is that the way Israel is conducting this offensive is creating massive obstacles to the distribution of humanitarian aid inside Gaza.’ The lack of water means that lactating women in particular are unable to breastfeed due to lack of proper nutrition, forced to use contaminated water to prepare formula, which alarmingly suffers from chronic unavailability. Even when there are functioning hospitals, medical staff are in despair. South Africa cited a letter to the UN from Médecins Sans Frontières, recalling that children have had their limbs amputated without anaesthesia or surgical tools while some doctors had to leave the sick and wounded behind after being forced to choose between their lives of those of their patients.
‘[E]verything that once sustained Palestinian life there has been damaged or destroyed, along with so many of its people’
South Africa
On (7), South Africa advances that ‘everything that once sustained Palestinian life there has been damaged or destroyed, along with so many of its people’ by targeting the infrastructure and foundations of Palestinian life. The Palace of Justice which houses the Palestinian Supreme Court, the Palestinian Legislative Council complex, and the Gaza City’s Central Archive building, have been targeted. It has also crippled education of future generations of Palestinians in Gaza by targeting every one of Gaza’s four universities, destroying Gaza City’s main public library and killing leading Palestinian academics. Israel’s attacks inflicted significant damage to Gaza’s ancient history – known as ‘Al Balakhyia’ or ‘Anthedon Harbour‘, the archaeological site of a 2,000-year-old Roman cemetery listed on the UNESCO World Heritage List is one of the eight sites which suffered from destruction. Religious sites, including the Great Omari Mosque, a fifth century Byzantine church, and the Church of Saint Porphyrius, believed to be the third oldest church in the world, are among the many demolished religious sites where Palestinians have worshipped for generations.
[D]octors are being compelled to perform ordinarily unnecessary hysterectomies on young women in an attempt to save their lives, leaving them unable to have more children.
On (8), South Africa suggests that the births of future generations of Palestinians in Gaza are jeopardized. A lack of access to health services led to obvious severe effects to newborn babies, but the most surprising revelation is that doctors are being compelled to perform ordinarily unnecessary hysterectomies on young women in an attempt to save their lives, leaving them unable to have more children.
‘When the entire world says we have gone insane and this is a humanitarian disaster – we will say, it’s not an end, it’s a means.’
Giora Eiland
To prove genocidal intent by Israel, South Africa included statements by ‘individuals in the position of the highest responsibility.’ On 3 November 2023, Prime Minister Netanyahu referred to the biblical story of the total destruction of Amalek by the Israelites in a letter to Israeli soldiers and officers: ‘Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.’ Israeli Army Reservist Major General Giora Eiland stated that ‘When the entire world says we have gone insane and this is a humanitarian disaster – we will say, it’s not an end, it’s a means.’ To ‘boost morale’, Israeli Army reservist Ezra Yachin told Israeli soldiers to ‘finish [Palestinians] off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children…If you have an Arab neighbour, don’t wait, go to his home and shoot him.’ South Africa claimed that statements by Israeli decision-makers and military officials such as those above ‘constitute clear direct and public incitement to genocide’.
Israel has dismissed any accusation of genocide in the context of the conflict in Gaza, arguing that it only acted with the intention to rescue hostages and to defend itself. The ICJ noted Israel’s assertion that ‘any careful review of the official decisions in relation to the conflict in Gaza … since the outbreak of the war…shows the emphasis placed on the need to avoid harm to civilians and to facilitate humanitarian aid.’ On 6 December 2023, The Israeli Ministry of Foreign Affairs published a document which stated that ‘[t]he accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant.’
