A hush fell over the assembled audience in the Great Hall of Justice in The Hague as the 17 judges of the International Court of Justice (ICJ) filed in and proceedings began on Thursday morning. From outside, through the stained-glass windows, could be heard the chants of groups gathered in support of Palestine. By Friday, those protests had become electric.
Established in 1945, the ICJ is one of the six principal organs of the United Nations and adjudicates disputes between states in accordance with international law. Rarely has it received such public attention, a sign of the historic nature of the case brought by South Africa, which alleges that Israel has perpetrated genocide against the Palestinian people in Gaza. Israel categorically denies the allegation and on Friday took the step of choosing to defend itself in person, further evidence of the high stakes on both sides.
Under the Genocide Convention of 1948, the legal team representing South Africa laid out, over a number of hours on Thursday, a meticulously detailed, tightly structured case on legal and moral grounds. They have requested “provisional measures” from the ICJ to bring about an end to the atrocities being committed in Gaza.
South Africa has taken the case against Israel under Article 9 of the Genocide Convention. It argues that although it is not directly affected by Israel’s actions against Gaza, it has an obligation to act as a party to the Convention when genocide is being perpetrated. In their 84-page submission to the Court, the South African legal team cited their right to bring the case to the ICJ under erga omnes partes – the argument that all parties to the convention are obliged to respond. The precedent for this interpretation was set and confirmed by the court in 2019 when the Gambia previously brought a case alleging that Myanmar had violated the Genocide Convention in its treatment of the Rohingya group.
There is, of course, a brutal irony that an allegation of genocide is being presented against Israel. The Genocide Convention was devised after the Holocaust. Both states are parties to the convention, which, as argued by the South African representatives, makes the jurisdiction of the court very clear.
The South African legal team proceeded to argue that there is clear genocidal intent as indicated by statements of members of the Israeli government
The South African team insisted that the case underscores the very essence of our shared humanity. That it is South Africa taking the case is seen as highly significant. This is a state that has experienced the brutality of an apartheid regime which was largely ignored by the international community.
The South African legal team proceeded to argue that there is clear genocidal intent as indicated by statements of members of the Israeli government. Such language, including the use of the term “human animals” by the Israeli defence minister, are repeated by Israeli soldiers mounting the campaign against the Palestinians. This, among other instances, indicates that “the intent to destroy Gaza has been nurtured at the highest level of the state”, it argued.
A final ruling could take years, but South Africa is calling for the court to order provisional measures including a halt to Israel’s military operation, which means that it must determine whether its actions are “plausibly genocidal”. The Irish jurist Blinne Ní Ghrálaigh KC gave a searingly powerful account of the atrocities against the Palestinian people and pointed to the fact that 48 mothers and 117 children have been killed each day. She introduced a heartbreaking new acronym that has emerged from the conflict: “WCNSF – wounded child no surviving family”.
Rounding off their case, the South African representatives stated that while the scale of the atrocities being committed against the Palestinians was “frighteningly unprecedented”, what the court is being asked to do is not unprecedented. The jurisprudence of the ICJ is clear, and no exception can be made to allow a state to engage in actions which violate its obligations under the Genocide Convention.
Israel began its response on Friday morning on, as had been predicted, the grounds of self-defence. Giving a harrowing account of the Hamas attacks of October 7th, Malcolm Shaw KC argued that this was the “real genocide”. By calling for provisional measures from the Court, Israel said that South Africa was attempting to deny Israel its right to defend itself as enshrined in the UN Charter.
Beyond the assertion that it was the genocidal aims of Hamas that have been most clearly demonstrated in this war, the Israeli defence team moved to technical issues. Crucially, they argued that this case does not qualify as a dispute, rather a “unispute” because South Africa was not in dispute with Israel at the moment of their application to the Court. As Shaw put it: “South Africa seems to believe it does not take two to tango.”
One of the key issues here is the question of genocidal intent on the part of the Israeli state. The Israeli defence team heavily disputed the selection of evidence by South Africa, countering that the statements presented were from individuals who do not influence the development of policy towards Gaza. Advocates pointed to the dissemination of leaflets and a staggering 70,000 phone calls to Gaza warning of imminent attacks as evidence of the efforts to protect civilians.
A response is expected in two or three weeks, and will be viewed as a test of the court’s ability and the willingness of international law to bind and protect all people equally
On occasion, the eminent Malcolm Shaw appeared flustered, at one point sardonically remarking to the judges that his papers had been shuffled “like a deck of cards”.
This was an isolated moment of levity in a case in which the stakes could not be higher. As Vaughan Lowe argued on behalf of South Africa: “It’s hard to think of a case in recent history which has been so important to the future of international law and this court.”
In order for South Africa to prove genocidal intent, it must be clear to the court that the Israeli state committed acts “with intent to destroy, in whole or in part”, the Palestinian people.
The court’s decisions are typically binding, though it lacks means to enforce them. A response is expected in two or three weeks, and will be viewed as a test of the court’s ability and the willingness of international law to bind and protect all people equally.
As the Israeli deputy attorney general Gilad Noam delivered the closing arguments for the state, the South African ambassador Vusi Madonsela regarded him with open incredulity. The delegations filed out to the waiting chants from protesters and supporters, and a palpable sense of history in the making.
Dr Alanna O’Malley is associate professor of international history at Leiden University in the Netherlands