The Israel-Palestine Conflict and South Africa’s case against Israel before the ICJ

Written by Marie Mink
Edited by Paolo Stohlmann

Abstract: Following Hamas’ surprise attack in Israel on October 7th, the war in Gaza has reached grave levels of humanitarian emergency, claiming over 30.228 deaths. On the 29th of December 2023, South Africa submitted a request for provisional measures to the International Court of Justice, intending to put an end to Israel’s attacks on the Palestinian people. This case has been heard and a Court Order delineating provisional measures for Israel to follow was imposed on January 26th. Nevertheless, the question remains of how this far-reaching historical conflict can finally be put to rest. 

I. Brief overview of the Israel-Palestine conflict

The ongoing conflict between Israel and Palestine has a long history as the territory of Palestine has been experiencing colonisation and occupation for centuries (Mooney, 2023). The last occupant before the 1948/49 Arab-Israeli war was Britain, which declared Palestine as the national home of Jewish people after the First World War, resulting in an influx of Jewish settlers. However, the Arab population invoked their right to self-determination throughout the 1930s and 40s which led to a division of the region into an Arab state, a Jewish state, and Jerusalem as a standalone city (Mooney, 2023). 

The first Arab-Israeli War followed in 1948/49, as the Palestinian’s claim to independence and the United Nations tripartite split of the area resulted in Jordan occupying the land originally reserved for them, namely the West Bank. This war is commonly referred to as al-Nakba (a catastrophe) by the Palestinian community, as it resulted in a huge death toll of Palestinians, an almost 80% loss of historic Palestinian land, and the Israeli rule over the acquired land and the residing Palestinians (Mooney, 2023). In 1950 followed the annexation of the West Bank by Jordan. Another war occurred in 1967, the so-called Six Day War, with Israel occupying more Palestinian territories as it fought against a coalition of Arab states, including Jordan. More specifically, the territories it gained control of – and is still in control of – were the annexed West Bank and the Gaza Strip. The dynamics regarding each occupied territory are uniquely complex. 

Today, the focus lies on the Gaza Strip and its “control” under Hamas. Hamas, an Islamic Resistance Movement in Gaza and considered a foreign terrorist organisation by Western governments, emerged there. It believes in Palestine being the rightful Islamic state on the entire land of historic Palestine (Maqdsi, 1993). Hamas’ beginnings are rooted in 1987, the year of the first Intifada, the term used for disputes between Palestinians and Israel’s military, when a previous murder of an Israeli in Gaza led to several further killings of Palestinians. Palestinian demonstrations and riots followed, fueled and partly led by Hamas (CRS Report, 2023). Internationally, negotiations for a two-state solution failed and the second Intifada began, with Israeli intrusions on the West Bank (Barnett et al., 2023). Israel officially withdrew its military and engagement in 2005 but imposed far-reaching restrictions on Palestinians. It created the Palestinian Authority (PA) together with the Palestine Liberation Organization (PLO). However, Hamas has been in power of the internal administration of the Gaza Strip since 2007 as it forcefully took authority from the PA (Zanotti and Sharp, 2023). More conflicts followed in the coming years and on October 7th, 2023, Hamas executed unprecedented strikes via land, air, and sea on Israel (Zanotti and Sharp, 2023). Israel responded to the attack with a declaration of war on Hamas and imposing a total blockade of Gaza, cutting off access to food, water, fuel, and electricity (Ahmed, 2023).  

II. The Role of International Law and the International Court of Justice (ICJ) in the Dispute

The international community has been aware of the direness and complexity of this conflict and has been involved since 1947 with Resolution 181 on partition plans of Palestine. The ‘question’ of Palestine was reintroduced in 1974 affirming the right to self-determination of the Palestinian people and in 1997 the UN General Assembly held a special emergency session on the occupation by Israel (Zagaris and Plachta, 2023). Additionally, the UNGA attributed non-member observer state status to Palestine, which the US and Israel challenged on the grounds of the lack of Palestinian state sovereignty (GA/11317, 2012). Importantly, the Committee Against Torture of the UN has criticised Israel for its history of untruthfulness and lack of transparency in its security system as has the country’s anti-torture authority claiming Israel is not working on ending the suffering of Palestinians (Shahshahani and Montez, 2023). 

After the events on October 7th, a Resolution of the UNGA was passed on October 27th on the ‘Protection of civilians and upholding legal and humanitarian obligations’, emphasising that state parties must abide by their international legal duties. Despite the fact the Resolution included the need for a humanitarian ceasefire, access to water and humanitarian aid in Gaza, it was criticised by the US and Israel for not condemning Hamas more explicitly (Zagaris and Plachta, 2023). The Security Council of the UN (UNSC) also got involved. Already on October 17th, the UNSC considered a Russian  call for ceasefire . However, the resolution did not pass due to US opposition, which again emphasised the failure to condemn Hamas. Following this impasse, various UNSC members proposed a range of resolutions, focusing on both Israel’s right to self-defense, stressed by Israel, and calling for a truce, pressed for by Jordan and other Arab countries. 

III.  South Africa’s case against Israel at the International Court of Justice (ICJ)

On December 29th, South Africa went in front of the ICJ against Israel on account of alleged violations of Israel’s obligations under the Genocide Convention of the UN. The appeal drew the support of an array of entities, including UN organs, NGOs, and journalists physically present in Gaza – with a focus on non-Palestinian groups to ensure transparency and impartiality (South Africa Application, 29 December 2023). The main article of the Convention coming into focus here is Article 2 which establishes the following:

Article 2: In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; …

IV.Legal Claims and Arguments presented by South Africa against Israel

South Africa claimed that:

“[t]he acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group, that being part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’)” (South Africa Application, 29 December 2023). 

The application was filed under the doctrine of erga omnes partes, which refers to international obligations, specifically the protection of fundamental human rights, that states cannot derogate from. Since South Africa is not directly affected by the conflict, it came forward under the doctrine to ensure its jurisdiction. South Africa called for provisional measures that would oblige the Court to rule on the matter now to establish interim actions to prevent the furthering of the crisis. Moreover, these measures grant a lower burden of proof due to their preliminary use as they refer to temporary remedial measures to try and de-escalate a dangerous dispute before the case is taken further. 

To establish that a crime was committed, the mens rea element, which is the mental intent to commit the crime, and the actus reus element, which is the existence of physical actions constituting the crime, must be satisfied. South Africa concentrated on actus reus, the acts of violence that, at that time, had killed over 21.000 Palestinians, most of whom were women and children, and that had left many more wounded and missing. For the appellant, these actions “are capable of falling within the provisions of the Convention” (South Africa Application, 29 December 2023). Furthermore, South Africa did not centre its claims around the attack of October 7th but rather emphasised the historical context and developments that led to the current situation. South Africa highlighted the deprivation of medical assistance and adequate standards of living with the lack of access to shelter, clothes, hygiene, and sanitation, as well as food and water. 

During the 11th and 12th of January, both states made their statements before the Court. During those hearings, South Africa reiterated its claims for applying provisional measures. The lawyers stressed the urgency of putting an end to the inhumane situation of Palestinian civilians, including but not limited to their being killed by Israel’s weapons, the ongoing siege increasing the risk of death, and the impossibility of distributing the limited aid in an active war zone (Verbatim Record, 11 January 2024). They claimed Israel is aware of its killings targeting mostly civilians, especially children and entire families. The numbers depicted that over 115 children are killed every day (Verbatim Record, 11 January 2024). Besides the serious bodily and mental harm with close to 60.000 wounded and mutilated Palestinians, South African lawyers cited the 85% of Palestinians that are currently displaced within Gaza as the result of inhumane evacuation orders, giving Palestinians only 24 hours to leave everything behind (Verbatim Record, 11 January 2024). 

The mens rea element is harder to prove at the early stages of a case, especially one of genocide, which requires a special intent. As evidence, South Africa has brought forward the incriminating statements of Israel’s military, state officials, and representatives to help establish an intent linked to their actions. These included for instance the Israeli Army Coordinator of Government Activities in the Territories (COGAT) and the Defense Minister referring to Palestinians as “human animals” that must be fought and “dealt with accordingly” (Verbatim Record, 11 January 2024). They attributed the same attitude to the lower levels of the State, the Israeli military, based on several pieces of evidence, such as film recordings of soldiers singing and dancing, calling out to erase everyone in Gaza as everyone is part of the terror and no one is innocent.

E. Israel’s stance and Defense arguments 

Israel fiercely fought the accusations of committing genocide against the Palestinians. The Israeli government claimed that due to the genocide of the Jewish population during the Second World War, they fully abide by the Genocide Convention. They claimed that the disproportionate harm inflicted on civilians is attributable to Hamas and their unlimited terror which led Israel to the point of self-defense (Verbatim Record, 12 January 2024). 

Israel disapproved of South Africa denying the existence of Israel as a legitimate state, established after the al-Nakba in 1948. They focused on the violence of the attacks of Hamas on October 7th which led to the death of 1.200 people, 5.500 wounded, and around 240 hostages being taken by the group which was “the largest calculated mass murder of Jews in a single day since the Holocaust” (Verbatim Record, 12 January 2024). They refused South Africa’s claim that Israel is committing genocide and instead considered Hamas as the perpetrator who, through its actions on October 7th, committed genocidal acts. Israel pointed out Hamas members’ statements in the media justifying their acts on October 7th as necessary and the existence of Israel as illegitimate. They underlined the suffering due to the attack and the unreleased hostages in Gaza. Furthermore, there is the issue of not being able to stop their military operations as that would “let Hamas not just get away with its murder, literally, but render Israel defenceless as Hamas continues to commit it.” (Verbatim Record, 12 January 2024). This referred to their claim to have a right to self-defense. 

On top of that,  Israel challenged the legality ofSouth Africa’s claims, as the ICJ can only rule on ‘disputes’ requiring relevant exchanges between the two parties. According to Israel, South Africa’s claim was insufficient as they had not been aware of there being a dispute between them. When South Africa informed Israel of its concerns regarding Gaza, before filing the case, Israel was open to a discussion, which South Africa did not end up partaking in, going directly to the ICJ instead. In terms of the Articles of the Genocide Convention, Israel highlighted that the focus should be on the actual intent of committing the physical actions that can constitute genocide, the so-called genocidal intent (dolus specialis) “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. 

V. The ICJ’s decision and its implications for the Israel-Palestine conflict

The ICJ concluded the request for interim measures on January 26th by ordering provisional measures with binding effects on Israel. These contain, amongst other things, the immediate suspension of military operations and ensuring that its military does not commit the acts mentioned in Article 2 of the Convention (Request for the indication of provisional measures, 26 January 2024). Israel must take all measures to prevent and punish the committing and inciting of genocide in the Gaza Strip and take immediate and effective measures to provide urgently needed goods and medical and humanitarian assistance. Additionally, a report must be submitted to the Court on all measures in effect to this order after one month. Simultaneously, the Court called for the urgent release of the hostages held by Hamas (Request for the indication of provisional measures, 26 January 2024).

G. Conclusion and critical stance 

The Court’s order had shed a hopeful light on bringing peace to Palestinian civilians, but the situation in Israel-Palestine remains dire. Whilst Israel holds the aim to eliminate Hamas after the surprise attack, the Palestinians in Gaza continue to suffer a humanitarian catastrophe (Shikaki, 2023). Despite the ruling being binding on both parties, it has been made clear by Israeli authorities, namely the government under Prime Minister Netanyahu, that they do not plan on ending their attacks or the siege (Zilber, 2024). This non-adherence and ignoring of international law, especially concerning core international crimes like genocide- which has been deemed the “crime of crimes” – is more than worrisome and calls into question the efficacy and power of the ICJ. Israel has not put an end to its military operations thus far, as it has raked up casualties, continued its destruction of Gaza’s infrastructure, continued its siege and blocked humanitarian aid (Tamimi, 2024). Israel has been facing heavy criticism from other state leaders, especially in the weeks after the Court’s ruling, as the Israeli military has continued to target civilians, for instance rushing towards an aid truck which ended in a bloody massacre on the 29th of February (Borger, 2024). Despite these concerning events in Gaza increasing, there is a lack of diplomatic pressure on Israel to halt or reduce its military attacks. Unfortunately, it seems like this case is experiencing the same lack of implementation and enforcement as the previous ruling of the ICJ on provisional measures imposed on Russia for its military operations in Ukraine (Maunganidze and Mhlambiso, 2024). On the 6th of March, South Africa urged the ICJ again to call on Israel to apply its previously indicated provisional measures (ICJ, 2024).  South Africa underlined the great famine the residents of Gaza have been experiencing due to the blockade of aid trucks, exacerbated by the fact that no trucks can safely enter during military attacks from the sky and the ground.  

Gaza and its residents have already been suffering to an alarming degree, but there seems no feasible path to a ceasefire. No solution for the Israeli hostages has been found due to a lack of credible negotiations between Israel and Hamas, with Netanyahu claiming to not stop its invasion until Palestine is under full Israeli control (Rose, 2024). For now, Israel needs to adhere to the obligations imposed by the ICJ as it has been committing more and more human rights violations and engaging in genocidal conduct towards Palestinians, like the targeted attacks on civilians. Following the war, there needs to be a possibility to have an actual democratic political system established and maintained by the Palestinian people, to end this decades-long conflict and give this people the peace it yearns for and deserves.

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Images

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