In this brief note, we shall be providing an outline of ongoing proceedings concerning Palestine. In doing so, we shall commence with the most recent South African Application to the International Court of Justice (ICJ), which is a highly significant development in the context of ongoing conflict in Palestine. Following an overview of this Application, we shall also provide brief information concerning the advisory opinion proceedings before the Court.
I. The South African Application
On 29 December 2023, South Africa filed an application instituting proceedings against Israel before the ICJ concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in relation to Palestinians in the Gaza Strip. The ICJ is the principal judicial organ of the United Nations (UN), also known as the World Court, and deals with disputes among the states. As a rule, a state should accept the Court’s jurisdiction in a particular case. Yet, the Genocide Convention sets out an exemption, and any State Party could institute proceedings against a Member State before the Court. In the recent past, Gambia has brought genocide charges against Myanmar. The 84-page, very detailed South African Application commences with the following remarks:
This Application concerns acts threatened, adopted, condoned, taken and being taken by the Government and military of the State of Israel against the Palestinian people, a distinct national, racial and ethnical group, in the wake of the attacks in Israel on 7 October 2023. South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory, no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’), whether as a matter of law or morality. The 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 ethnical group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.
The South African Application makes an important point crystal: the importance of putting the single events into a proper context. In the Palestinian case, it would only be possible to grasp or classify matters legally if one does comprehend the lengthy practice of occupation and prolonged blockade on Gazans. On this matter, the Application states the following:
[…] 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, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.
Furthermore, the South African Application makes reference to the acts and statements of the Israeli state apparatus, which in combination express a genocidal intent:
Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent. That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine. It is also clear from the nature, scope and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed. Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm. Israel has also laid waste to vast areas of Gaza, including entire neighborhoods. It has damaged or destroyed in excess of 355,000 Palestinian homes, alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and Court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.
The Application then describes in great detail the single acts which would constitute genocide as well as expressions of genocidal intent the Palestinian People by Israeli State Officials and others. Although it has been difficult to prove the genocidal intent before the ICJ, the South African Application is quite significant with regard to obtaining a provisional measures order, which is rather more likely to be obtained in due course. Indeed, South Africa has requested such an order from the World Court:
[…] South Africa requests that the Court indicate provisional measures. In light of the nature of the rights in issue, as well as the ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza, South Africa requests that the Court address this request as a matter of extreme urgency. Provisional measures are necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity.
It is of note that, if issued, a provisional measures order it will be legally binding. The Court can proceed if it finds the South African claims well-founded in both fact and law.
On 11 and 12 January 2024, the Court held public hearings on the request for the indication of provisional measures submitted by South Africa at the Peace Palace in the Hague, the seat of the Court. On the first day, the South African legal team presented a compelling case, and the South African legal team showed the Court that the plausibility test for issuing provisional measures orders had been satisfied. On the next day, the Israeli legal team presented its defence. In doing so, it focused on the events of the 7th of October 2023 rather than addressing the principal factual and legal issues raised by the South African legal team. Although there is no fixed date for the Court, it is expected that the Court shall announce its decision regarding provisional measures within two to three weeks.
II. Advisory Opinion Proceedings
In addition to the proceedings outlined above, there is another ongoing proceeding before the ICJ within the ambit of its advisory opinion jurisdiction. This proceeding has been initiated months earlier than the 7th October events by the UN General Assembly. The General Assembly has requested from the Court an advisory opinion on the following questions:
- What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
- How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?
The ICJ shall hold public hearings on the present request for an advisory opinion, which will open on Monday, 19 February 2024. Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal weight and moral authority. Indeed, the Court issued an influential opinion in 2004 concerning the legal consequences of the construction of a wall in the occupied Palestinian territory.
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