A Plausible Risk of Genocide: Report #1 on South Africa v. Israel
This is the first in a series of blog posts reporting on the proceedings of South Africa v. Israel in the International Court of Justice. This case is relevant to the U.S. legal community because the U.S. has provided material aid to Israel as it has committed the acts alleged in this proceeding. For a brief breakdown on what the ICJ is, see this MC Law Review blog post by Professor Franklin Rosenblatt here.
South Africa’s Application for Proceedings
The Republic of South Africa (“South Africa”) filed an 84-page Application Instituting Proceedings (“Application”) against the State of Israel (“Israel”) on 28 December 2023.[1] This Application alleged that Israel is failing to meet its obligations as a State Party to the Convention on the Punishment and Prevention of the Crime of Genocide of 9 December 1948 (“Genocide Convention”). Like the U.S., both South Africa and Israel are State Parties to the Genocide Convention. State Party obligations under it are distinct from UN Member rights in the U.N. Charter, a common confusion when discussing this case. In fact, most U.S. law students and lawyers do not know that the U.S. has codified its obligations to the Genocide Convention under the federal criminal code in 18 U.S.C. §1091.[2]
To fully review the Application would take tens of pages, so here are some key points raised as of 28 December 2023. The Application contends an overview of the acts in which Israel has committed that are alleged as genocidal in character, having regard to their nature, scope and context.[3] These include as of 28 December 2023: (1) the killing over 21,110 Palestinians in Gaza; (2) causing of serious bodily and mental harm to Palestinians in Gaza; (3) mass expulsion and displacement of Palestinians in Gaza of at least 1.9 million Palestinians; (4) deprivation of access to adequate food and water to Palestinians in Gaza, most exacerbated by the “complete siege” on Gaza announced on 9 October 2023; (5) deprivation of access to adequate shelter, clothes, hygiene and sanitations to Palestinians in Gaza; (6) deprivation of adequate medical assistance to Palestinians in Gaza, particularly due to Israel’s acts amounting to completely obliterating Gaza’s healthcare infrastructure; (7) destruction of Palestinian life overall in Gaza; and (8) imposing measures intended to prevent Palestinian births, citing statistics such as over 7,729 children have been killed as of 11 December 2023, and that over 4,700 women and children are reported missing.[4]
The Application lists numerous statements from Israeli officials that on their face are alleged to demonstrate specific intent (‘dolus specialis’) to commit and persist in committing genocidal acts or to fail to prevent such acts.[5] Some of the statements are excerpted here.
“The Prime Minister [Benjamin Netanyahu] referred again to Amalek in the letter sent on 3 November 2023 to Israeli soldiers and officers. The relevant biblical passage reads as follows: ‘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.”[6]
“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.”[7] This Statement was made by President Isaac Herzog in October 2023, as cited in the Application.
“On 9 October 2023, Defen[s]e Minister Yoav Gallant in an Israeli Army ‘situation update’ advised that Israel was ‘imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.”[8]
Finally, South Africa requested an Order for Provisional Measures, which essentially asked the Court to issue orders before the case proceeds to the merits, since without such measures the rights of Palestinians to be protected from genocide are at a plausible risk.[9] Asking the ICJ for an order for provisional measures is similar in nature to seeking a preliminary injunction and the Twombly-Iqbal standard in the U.S. legal system.
The ICJ’s Order for Provisional Measures
On 26 January 2024, the ICJ issued an Order of Provisional Measures (“Order”) after finding that South Africa had standing, that Palestinians are a protected group under the Genocide Convention, and considering the reports and statements cited in South Africa’s Application that there exists a plausible risk of harm [genocide] to Palestinians.[10]
Specifically, the Court found that “Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group,” and hence a protected group within the meaning of Article II of the Genocide Convention, and found that a substantial part of that group (over 2 million people) are populated within the Gaza Strip.[11] The Court took note of various sources from the UN Office for Coordination of Humanitarian Affairs (OCHA), the World Health Organization (WHO), the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA), and from statements by senior Israeli officials, to conclude that since October 7, 2023, “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa for which it is seeking protection are plausible.”[12]
Additionally, the Court noted that it can indicate provisional measures only where there is urgency, “in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court[.]”[13] The rights they refer to are the rights of Palestinians to be protected from genocide. The Court found such urgency as a result of Israel’s documented acts since 7 October 2023.[14]
Finally, the Court indicated six provisional measures, including an order for Israel, “in accordance with its obligations under the [Genocide Convention], in relation to Palestinians in Gaza, to take all measures within its power to prevent the commission of all acts within the scope of Article II of this [Genocide] Convention[.]”[15] The Court also ordered Israel to ensure its military does not commit acts proscribed in Article II; to prevent and punish the “direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip,” and to take immediate and effective measures to allow humanitarian aid into Gaza, preserve evidence, and to submit a report of its compliance.[16]
Comment and implications of the Order
Looking to the definition of Genocide under the Genocide Convention, and taking the reports cited in South Africa’s Application as true, it seems that at the merits stage of this case Israel will have been found to have committed genocide against Palestinians, at least since October 7, 2023, and potentially since 1948 in consideration of the [first] Nakba.
But my word is not that of a seasoned attorney that has practiced before the ICJ representing a State Party to the Genocide Convention. There is no such professional within the MC Law faculty. That is why I will highlight Illinois College of Law Professor Francis Boyle’s analysis. Boyle is a Harvard Law School graduate magna cum laude and represented Bosnia before the ICJ in its Application for Proceedings under the Genocide Convention against Serbia and Montenegro in March of 1993. In that proceeding the ICJ found (over a decade later!) that Serbia had violated its obligations under the Genocide Convention and that the killing of over 8,000 men in Srebrenicia in July 1995 was done with the specific intent to commit genocide against Bosnian Muslims. Note, the provisional measures were not enough to stop Serbia from mass murdering over 8,000 Bosnian Muslims in 1995. I hope the reader here lets that sink in.
In an interview given on 2 January 2024, Boyle said that he believed based on his experience that the ICJ will order Israel to cease and desist committing all acts of genocide against Palestinians, which is essentially what happened. Boyle also asserted that the Biden Administration “will stand condemned under Article III, paragraph (e) of the Genocide, that criminalizes the complicity in genocide.” After the ICJ Order, Boyle asserted that the UN General Assembly can “now suspend Israel from participation in its activities as it did for South Africa and Yugoslavia[,]” “can admit Palestine as a full member[,]” and “can establish a tribunal to prosecute the highest level officials of the Israeli government, both civilian and military.”
For other analysis on this situation, see comments from: international human rights lawyer Craig Mokhiber, who recently resigned as Director of the New York Office of the UN High Commissioner for Human Rights; leading genocide scholar and attorney William Schabas; and the [Raphael] Lemkin Institute for Genocide Prevention.
Up Next
The next blog post will discuss South Africa’s Request for Additional Measures filed on 12 February 2024, and Israel’s report of compliance (with the Order) that has yet to be submitted.
Photo Credit: Lybil BER, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
[1] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel) (Application instituting Proceedings of 28 December 2023 https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf. (last accessed 14 February 2024) [hereinafter Application].
[2] Emergency Legal Briefing Paper: Israel’s Unfolding Crime of Genocide of the Palestinian People & U.S. Failure to Prevent and Complicity in Genocide, 18 Oct. 2023, 3 n.8, https://ccrjustice.org/sites/default/files/attach/2023/10/Israels-Unfolding-Crime_ww.pdf
[3] Application, (III) The Facts, at 30-59.
[4] See Application, (III) The Facts, at 30-59.
[5] See Application, (III) The Facts, at 59-70.
[6] Application, (III), The Facts, Section D, para. 101, at 60.
[7] Application, (III), The Facts, Section D, para. 101, at 60.
[8] Application, (III), The Facts, Section D, para. 101, at 60.
[9] As explained in South Africa’s Application, this is permitted under Article 41 of the Statute of the [ICJ] Court, and Articles 73 and 74 of the Rules of the [ICJ] Court.
[10] Request for the Indication of Provisional Measures: Order (South Africa v. Israel) (26 January 2023) Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel) (Application instituting Proceedings of 28 December 2023 https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf. (last accessed 14 February 2024).
[11] Id., para. 44.
[12] Id. pp. 15-18, para. 46-54.
[13] Id. p. 19, para. 61.
[14] Id. pp. 19-22.
[15] Id. pp. 24-25, para. 86 (emphasis added).
[16] Id (emphasis added).
The views and opinions express in this blog post are solely those of the author and do not necessarily reflect the official policy or position of Mississippi College, Mississippi College School of Law, or the Law Review. The author is solely responsible for the content of this post. The information provided in this post is for general informational purposes only and should not be construed as legal advice.