Genocidal Conduct of Israel: Adella Hasim Presentation from ICJ

Genocidal Conduct of Israel: Adella Hasim Presentation from ICJ 

The Hague Hearing

 icj application instituting proceedings and request for the indication of provisional measures south africa

APPLICATION INSTITUTING PROCEEDINGS

 

To the Registrar of the International Court of Justice, the undersigned, being duly authorised by the
Government of the Republic of South Africa, state as follows:

In accordance with Articles 36 (1) and 40 of the Statute of the Court and Article 38 of the Rules of
Court, I have the honour to submit this Application instituting proceedings in the name of the Republic
of South Africa (“South Africa”) against the State of Israel (“Israel”). Pursuant to Article 41 of the
Statute, the Application includes a request that the Court indicate provisional measures to protect the
rights invoked herein from imminent and irreparable loss.

I. INTRODUCTION

 

1. 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’),1
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. 

2. In preparing this Application, South Africa has paid close attention to the provisions of the
Genocide Convention, to its interpretation, and to its application in the years following its entry into
force on 12 January 1951, as well as to the jurisprudence of this Court and that of other international
courts and tribunals, including the International Criminal Tribunal for the former Yugoslavia, the
International Criminal Tribunal for Rwanda and the International Criminal Court. South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law
sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally
directing attacks against the civilian population, civilian objects and buildings dedicated to religion,
education, art, science, historic monuments, hospitals, and places where the sick and wounded are
collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes
against humanity — though there is often a close connection between all such acts. South Africa is also
aware that acts of genocide inevitably form part of a continuum — as Raphaël Lemkin who coined the

1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951), 78 UNTS 277.

page 2

term ‘genocide’ himself recognised.2 For this reason 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-yearlong 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,3 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.

3. South Africa is acutely aware of the particular weight of responsibility in initiating proceedings
against Israel for violations of the Genocide Convention. However, South Africa is also acutely aware
of its own obligation — as a State party to the Genocide Convention — to prevent genocide. Israel’s
acts and omissions in relation to Palestinians violate the Genocide Convention. That is the shared view
of numerous other States parties to the Convention, including the State of Palestine itself, which has
called on “world leaders” to “take responsibility… to stop the genocide against our people”.4 United
Nations experts have also repeatedly sounded “the alarm” for over 10 weeks that “[c]onsidering
statements made by Israeli political leaders and their allies, accompanied by military action in Gaza and
escalation of arrests and killing in the West Bank” there is a “risk of genocide against the Palestinian
people”.5 United Nations experts have also expressed their “profound … concern” about “the failure of
the international system to mobilise to prevent genocide” against Palestinians, and have called on the
“international community” to “do everything it can to immediately end the risk of genocide against the
Palestinian people”.6 The Committee on the Elimination of Racial Discrimination (‘CERD’), acting
under its ‘early warning and urgent action procedure’, has also called on “all State parties” to the
Genocide Convention to “fully respect” their “obligation to prevent… genocide”.7 This application by
South Africa and its request for the indication of provisional measures fall to be considered in that
context and in the light of those calls. It is made against the background of South Africa’s foreign policy objective for the attainment of a durable peace between Israel and the State of Palestine, with two States existing side by side within internationally recognised borders, based on those existing on 4 June 1967, prior to the outbreak of the 1967 Arab-Israeli war, in line with all relevant United Nations resolutions and international law.

2 Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress
(1944), Chapter IX.
3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.
4 Speech by Mahmoud Abbas on Palestine TV, 18 November 2023, https://www.youtube.com/watch?v=2uRGx02vULg;
translated by WAFA: “President Abbas urges Biden to stop Israel’s ongoing genocide of Palestinians”, WAFA (18
November 2023), https://english.wafa.ps/Pages/Details/139394.
5 United Nations Office of the High Commissioner for Human Rights (‘UN OHCHR’), Gaza: UN experts decry bombing of
hospitals and schools as crimes against humanity, call for prevention of genocide (19 October 2023) https://www.ohchr.org/
en/press-releases/2023/10/gaza-un-experts-decry-bombing-hospitals-and-schools-crimes-against-humanity.
6 UN OHCHR, Gaza: UN experts call on international community to prevent genocide against the Palestinian people (16
November 2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-preventgenocide-
against.
7 UN OHCHR, Gaza Strip: States are obliged to prevent crimes against humanity and genocide, UN Committee stresses (21
December 2023), https://www.ohchr.org/en/press-releases/2023/12/gaza-strip-states-are-obliged-prevent-crimes-againsthumanity-
and-genocide. Under CERD's Early Warning and Urgent Action (‘EWUA’) procedure, CERD has extensive
expertise in compiling indicators relevant to the prevention of genocide; in 2015 it issued a Declaration on the Prevention of
Genocide which recalled this work in its preamble: see CERD, Declaration on the Prevention of Genocide (CRD/C/66/1)
(17 October 2005), https://www.ohchr.org/sites/default/files/Documents/HRBodies/CERD/declaration_genocide.doc
(emphasis added).
3
4. The facts relied on by South Africa in this application and to be further developed in these
proceedings establish that — against a background of apartheid, expulsion, ethnic cleansing, annexation,
occupation, discrimination, and the ongoing denial of the right of the Palestinian people to selfdetermination
— Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed
to prosecute the direct and public incitement to genocide. More gravely still, Israel has engaged in, is
engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza. Those
acts include killing them, causing them serious mental and bodily harm and deliberately inflicting on
them conditions of life calculated to bring about their physical destruction as a group. 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 neighbourhoods, and 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.
5. South Africa, mindful of the jus cogens character of the prohibition of genocide and the erga
omnes and erga omnes partes character of the obligations owed by States under the Genocide
Convention, is making the present application to establish Israel’s responsibility for violations of the
Genocide Convention; to hold it fully accountable under international law for those violations; and —
most immediately — to have recourse to this Court to ensure the urgent and fullest possible protection
for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of
genocide.
6. In light of the extraordinary urgency of the situation, South Africa seeks an expedited hearing
for its request for the indication of provisional measures. In addition, pursuant to Article 74(4) of the
Rules of Court, South Africa requests the President of the Court to protect the Palestinian people in
Gaza by calling upon Israel immediately to halt all military attacks that constitute or give rise to
violations of the Genocide Convention pending the holding of such hearing, so as to enable any order
the Court may make on the request for the indication of provisional measures to have its appropriate
effects. To that end, the Court should order Israel to cease killing and causing serious mental and bodily
harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to
bring about their physical destruction as a group, to prevent and punish direct and public incitement to
genocide, and to rescind related policies and practices, including regarding the restriction on aid and
the issuing of evacuation directives.
4
7. Mindful of the Court’s important role and the exercise of its grave responsibility in
circumstances in which the genocidal acts of which South Africa complains have occurred very recently
and are ongoing — and have not otherwise been subject to judicial determination or detailed fact-finding
— South Africa’s application and request for provisional measures provide a more detailed factual
account than might otherwise be usual. That account draws in significant part on statements and reports
by United Nations chiefs and bodies and non-governmental organisations (‘NGOs’), as well as eyewitness
accounts from Gaza — including from Palestinian journalists on the ground — in circumstances
where Israel continues to restrict access to Gaza by international journalists, investigators and factfinding
teams. However, neither the Application nor the request for the indication of provisional
measures depends on a determination by the Court of each individual incident or complaint referred to
herein. Notably, as the Court’s caselaw makes clear, “[w]hat the Court is required to do at the stage of
making an order on provisional measures is to establish whether… at least some of the acts alleged…
are capable of falling within the provisions of the Convention”.8 At least some of the acts alleged by
South Africa are clearly capable of falling within those provisions.
II. JURISDICTION OF THE COURT
8. South Africa and Israel are both Members of the United Nations and therefore bound by the
Statute of the Court, including Article 36 (1), which provides that the Court’s jurisdiction “comprises .
. . all matters specially provided for . . . in treaties and conventions in force”.
9. South Africa and Israel are also parties to the Genocide Convention. Israel signed the Genocide
Convention on 17 August 1949 and deposited its instrument of ratification on 9 March 1950, thereby
becoming a party when the Genocide Convention entered into force on 12 January 1951. South Africa
deposited its instrument of accession on 10 December 1998. It became applicable between the parties
on the ninetieth day thereafter, pursuant to Article XIII of the Convention.
10. Article IX of the Genocide Convention provides:
“Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a State for
genocide or for any of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.”
11. Neither South Africa nor Israel has entered any reservation to Article IX.
12. South Africa has repeatedly and urgently expressed its concerns and condemnation in respect
of Israel’s acts and omissions which form the basis of this Application. South Africa and other States
Parties to the Genocide Convention have, in particular, made clear that Israel’s actions in Gaza
constitute genocide against the Palestinian people. By way of example, the Presidents of Algeria,9
8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 14, para. 30 (hereafter ‘The Gambia v. Myanmar,
Provisional Measures, Order of 23 January 2020’).
9 “Algeria, Türkiye discuss need for accountability over Gaza ‘genocide’”, Middle East Monitor (21 November 2023),
https://www.middleeastmonitor.com/20231121-algeria-president-tebboune-turkiye-president-erdogan-discuss-need-foraccountability-
over-gaza-genocide/. The People’s Democratic Republic of Algeria acceded to the Genocide Convention on
31 October 1963.
5
Bolivia,10 Brazil,11 Colombia,12 Cuba,13 Iran,14 Türkiye,15 and Venezuela16 have all described Israel’s
actions as a genocide, as has the Palestinian President.17 State officials and representatives from
Bangladesh,18 Egypt,19 Honduras,20 Iraq,21 Jordan,22 Libya,23 Malaysia,24 Namibia,25 Pakistan,26 Syria,27
10 Luis Alberto Arce Catacora (Lucho Arce), Presidente Constitucional del Estado Plurinacional de Bolivia,
@LuchoXBolivia, Tweet (2:43 am, November 16, 2023), https://twitter.com/LuchoXBolivia/status/1724981446001967283.
The Plurinational State of Bolivia signed the Genocide Convention on 11 December 1948 and ratified it on 14 June 2005.
11 “President Lula says war in the Middle East is genocide”, AgenciaBrazil (25 October 2023),
https://agenciabrasil.ebc.com.br/en/politica/noticia/2023-10/president-lula-says-war-middle-east-genocide. The Federative
Republic of Brazil signed the Genocide Convention on 11 December 1948 and ratified it on 15 April 1952.
12 Gustavo Petro, Presidente de la República de Colombia, @petrogustavo, Tweet (4:00 am, November 1, 2023)
https://twitter.com/petrogustavo/status/1719565081371935150. The Republic of Colombia signed the Genocide Convention
on 12 August 1949 and ratified it 27 October 1959.
13 Ed Newman, “Diaz-Canel says Cuba will not accept ignoring genocide against Palestinians”, Radio Havana Cuba (29
October 2023), https://www.radiohc.cu/en/noticias/nacionales/337800-diaz-canel-says-cuba-will-not-accept-ignoringgenocide-
against-palestinians. The Republic of Cuba signed the Genocide Convention on 28 December 1949 and ratified it
on 4 March 1953.
14 “Iranian president condemns Gaza ‘genocide’ in meeting with Putin”, NBC News (7 December 2023),
https://www.nbcnews.com/video/iranian-president-condemns-gaza-genocide-in-meeting-with-putin-199670853701. The
Islamic Republic of Iran signed the Genocide Convention on 8 December 1949 and ratified it on 14 August 1956.
15 Recep Tayyip Erdoğan, President of Türkiye and AK Party Chairman, @RTErdogan, Tweet, (4:30 pm, 18 October 2023),
https://twitter.com/RTErdogan/status/1714665167978369531. The Republic of Türkiye acceded to the Genocide Convention
on 31 July 1950.
16 Nicolás Maduro, Presidente de la República Bolivariana de Venezuela, @NicolasMaduro, Tweet (7:40 pm, November 4,
2023) https://twitter.com/NicolasMaduro/status/1720888719568191585. The Bolivarian Republic of Venezuela acceded to
the Genocide Convention on 12 July 1960.
17 “President Abbas urges Biden to stop Israel’s ongoing genocide of Palestinians”, WAFA (18 November 2023),
https://english.wafa.ps/Pages/Details/139394. The State of Palestine acceded to the Genocide Convention on 2 April 2014.
18 UN, Meetings Coverage and Press Releases, Seventy-Eighth Session, 39th and 40th Meetings, GA/12566, Staggering Loss
of Life in Gaza, Follow-on to Temporary Truce Dominate General Assembly Debate on Decades-Long Question of
Palestine, GA/12566 (28 November 2023), https://press.un.org/en/2023/ga12566.doc.htm. The People’s Republic of
Bangladesh acceded to the Genocide Convention on 5 October 1998.
19 UN News, UN General Assembly adopts Gaza resolution calling for immediate and sustained ‘humanitarian truce’ (26
October 2023), https://news.un.org/en/story/2023/10/1142847. The Arab Republic of Egypt signed the Genocide Convention
on 12 December 1948 and ratified the Convention on 8 February 1952.
20 “Live updates | Israel rebuffs US push for humanitarian pause, says hostages must be released first”, Associated Press (3
November 2023), https://web.archive.org/web/20231117082155/https://thehill.com/
homenews/ap/ap-international/ap-live-updates-israeli-troops-tighten-encirclement-of-gaza-city-as-top-us-diplomat-arrivesin-
israel/. The Republic of Honduras signed the Genocide Convention on 22 April 1949 and ratified the Convention on 5
March 1952.
21 “Israel subjects Palestinians ‘to genocide,’ says Sudani”, Rudaw (6 November 2023),
https://www.rudaw.net/english/middleeast/06112023. The Republic of Iraq acceded to the Genocide Convention on 20
January 1959.
22 “Jordan’s foreign minister says Israel aiming ‘to empty Gaza of its people’”, AlJazeera (10 December 2023),
https://www.aljazeera.com/news/2023/12/10/jordan-foreign-minister-says-israel-aiming-to-empty-gaza-of-its-people. The
Hashemite Kingdom of Jordan acceded to the Genocide Convention on 3 April 1950.
23 UN, Meetings Coverage and Press Releases, 9451st Meeting, SC/15462, Amid Increasingly Dire Humanitarian Situation
in Gaza, Secretary-General Tells Security Council Hamas Attacks Cannot Justify Collective Punishment of Palestinian
People (24 October 2023), https://press.un.org/en/2023/sc15462.doc.htm. The State of Libya acceded to the Genocide
Convention on 16 May 1989.
24 Ministry of Foreign Affairs, Malaysia, Malaysia Acknowledges Breakthrough in the United Nations Security Council on
the Israeli-Palestinian Conflict (17 November 2023), https://www.kln.gov.my/web/guest/-/malaysia-acknowledgesbreakthrough-
in-the-united-nations-security-council-on-the-israeli-palestinian-conflict. Malaysia acceded to the Genocide
Convention on 20 December 1994.
25 Neville Gertze, Ambassador of Namibia to the United Nations, Ministry of International Relations and Cooperation-
Namibia, Facebook (25 October 2023), https://fb.watch/oTgjaUXQdO/. The Republic of Namibia acceded to the Genocide
Convention on the 28 November 1994.
26 Naveed Butt, “Pakistan terms Gaza siege genocide of Palestinians”, Business Recorder (16 October 2023),
https://www.brecorder.com/news/40268277. The Islamic Republic of Pakistan signed the Genocide Convention on 11
December 1948 and acceded to the Convention on 12 October 1957.
27 UN, Meetings Coverage and Press Releases, Seventy-Eighth Session 24th and 25th Meetings, GA/SHC/4385, Third
Committee Spotlights Human Rights Abuses in Conflicts, Stressing Need to End Terrorist Attacks, Genocide, Illegal
Hostage-Taking, Enforced Displacement (17 October 2023), https://press.un.org/en/2023/gashc4385.doc.htm. The Syrian
Arab Republic acceded to the Genocide Convention on 25 June 1955.
6
and Tunisia,28 have also referred to genocide or the risk thereof in Gaza; as have heads of State and
State officials from non-State parties to the Genocide Convention, including Qatar29 and Mauritania.30
Speaking on behalf of the ‘Arab Group’ at the 9498th meeting of the United Nations Security Council
on 8 December 2023, ahead of the United Nations Security Council vote on a ceasefire, Egypt’s
representative stated that the “[c]ivilian fatalities [in Gaza] lay bare the lie that the war is against an
armed group. Rather, it is a collective punishment and genocide against the Palestinian people […]
Citing “the extensive destruction of civilian infrastructure and the targeting of United Nations staff
members”, he stated that “the forcible displacement of 85 per cent of Gaza’s people, living in dire
circumstances, represents . . . an effort to eliminate the Palestinian people.”31
13. Having regard to the fact that the prohibition of genocide has the character of a peremptory
norm and that the obligations under the Convention are owed erga omnes and erga omnes partes,32
Israel has been made fully aware of the grave concerns expressed by the international community, by
States Parties to the Genocide Convention, and by South Africa in particular, as to Israel’s failure to
cease, prevent and punish the commission of genocide. South Africa’s concern has been expressed,
inter alia, as follows:
— On 30 October 2023, the South African Department of International Relations and
Cooperation issued a statement calling on the international community to hold Israel
accountable for breaches of international law. Warning that “the crime of genocide, sadly looms
large” in Gaza, the statement recalled that “President Lula da Silva of Brazil has called the
attacks on Gaza a genocide” and that the South African Minister of International Relations and
Cooperation, Naledi Pandor, addressing the United Nations Security Council on 24 October
2023, had also “reminded the international community not to stand idle while another genocide
is unfolding”.33
— On 7 November, addressing the South African National Assembly, South Africa’s
International Relations Minister warned that “[t]he crime of genocide sadly looms large in
the current situation in Gaza”, recalling that “in 1994, a genocide occurred on the African
continent with much of the whole world watching as innocent people were massacred”, and
underscoring that South Africa could not stand by and allow that to happen again.34
— On 10 November 2023, the Director-General of South Africa’s Department of
International Relations and Cooperation (“DIRCO”), conducted a formal diplomatic
28 United Nations, Meetings Coverage and Press Releases, 9451st Meeting, SC/15462, Amid Increasingly Dire Humanitarian
Situation in Gaza, Secretary-General Tells Security Council Hamas Attacks Cannot Justify Collective Punishment of
Palestinian People (24 October 2023), https://press.un.org/en/2023/sc15462.doc.htm. The Republic of Tunisia acceded to
the Genocide Convention on the 29 November 1956.
29 “Qatari emir: ‘This is a genocide committed by Israel’”, Al Jazeera English (5 December 2023),
https://www.youtube.com/watch?v=drOuwKvDt8o.
30 “Mauritania Condemns Israeli Heinous Crimes in Gaza”, Agence Mauritanienne d’Information (18 October 2023),
https://ami.mr/en/archives/11732.
31 UN Meetings Coverage, 9498th Meeting, SC/15518 (8 December 2023), https://press.un.org/en/2023/sc15518.doc.htm
(emphasis added).
32 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 17, para. 41.
33 South Africa, Department of International Relations and Cooperation (‘DIRCO’), South Africa calls for the International
community to hold Israel accountable for breaches of International Law (30 October 2023), https://www.dirco.gov.za/southafrica-
calls-for-the-international-community-to-hold-israel-accountable-for-breaches-of-international-law/.
34 South Africa, DIRCO, Ministerial Statement on the Ongoing Israeli-Palestinian Conflict by Dr GNM Pandor, Minister for
International Relations and Cooperation, in the National Assembly House of Parliament (7 November 2023)
https://www.dirco.gov.za/ministerial-statement-on-the-ongoing-israeli-palestinian-conflict-by-dr-gnm-pandor-minister-forinternational-
relations-and-cooperation-in-the-national-assembly-house-of-parliament-7-november-2023/.
7
démarche of the Ambassador of the State of Israel to South Africa, advising him that while
South Africa “condemned the attacks on civilians by Hamas” which “should be investigated
for war crimes”, “the response by Israel was unlawful”, and that South Africa “wants the ICC
to investigate the leadership of Israel” for crimes including genocide.35
— On 13 November 2023, at a meeting at the Presidential residence with the leadership of the
South African Jewish Board of Deputies, at which they called inter alia for the re-opening of
the South African Embassy in Israel, the President of South Africa, Mr Cyril Ramaphosa
“condemn[ed] the genocide that is being inflicted against the people of Palestine, including
women and children, through collective punishment and ongoing bombardment of Gaza”.36
— On 17 November 2023, during the course of a State visit to Qatar, the President of South
Africa, announced that South Africa was referring the Situation in the State of Palestine to the
International Criminal Court, expressing his abhorrence for “what is happening right now in
Gaza, which has now turned into a concentration camp where genocide is taking place”.37
— Later on 17 November 2023, the Embassy of South Africa in The Hague, acting on behalf
of South Africa, jointly with three other States parties to the Genocide Convention — namely
Bangladesh, Bolivia, and Comoros — and Djibouti, referred the Situation in the State of
Palestine to the Office of the Prosecutor of the International Criminal Court, requesting that the
Prosecutor vigorously investigate crimes within the jurisdictional scope of the Court, including
the crime of genocide, as provided for in Article 6 (a), (b) and (c) of the Rome Statute of the
International Criminal Court (‘Rome Statute’).38
— On 21 November 2023, addressing the Extraordinary Joint Meeting of BRICS (Brazil,
Russia, India, China, and South Africa) Leaders and Leaders of invited BRICS members on the
situation in the Middle East called to address “a matter of grave global concern” in the Middle
East, the President of South Africa asserted that “[t]he deliberate denial of medicine, fuel,
food and water to the residents of Gaza is tantamount to genocide”.39
— On 12 December 2023, speaking at the 10th Emergency Special Session of the United
Nations General Assembly — at which Israel was represented — the South African
Ambassador to the United Nations stated that “[t]he events of the past six weeks in Gaza have
illustrated that Israel is acting contrary to its obligations in terms of the Genocide Convention”.
She underscored that, “[a]s a UN Member State and owing to South Africa’s painful past
35 South Africa, DIRCO, DIRCO démarches the Ambassador of the State of Israel (10 November 2023)
https://www.dirco.gov.za/dirco-demarches-the-ambassador-of-the-state-of-israel/.
36 South Africa, The Presidency, President Ramaphosa Meets with the South African Jewish Board of Deputies (13
November 2023), https://www.thepresidency.gov.za/president-ramaphosa-meets-south-african-jewish-board-deputies.
37 Kate Bartlett, “South Africa Refers Israel to The Hague Over Gaza 'War Crimes'”, VOA News (17 November 2023)
https://www.voanews.com/a/south-africa-refers-israel-to-the-hague-over-gaza-war-crimes-/7359022.html.
38 South Africa, Embassy in the Netherlands, Letter from the South African Embassy in the Netherlands to the Prosecutor of
the International Criminal Court (17 November 2023), https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral-
Palestine-Final-17-November-2023.pdf.
39 South Africa, the Presidency, Opening remarks by President Cyril Ramaphosa to the Extraordinary Joint Meeting of
BRICS Leaders and Leaders of invited BRICS members on the situation in the Middle East (21 November 2023),
https://www.thepresidency.gov.za/opening-remarks-president-cyril-ramaphosa-extraordinary-joint-meeting-brics-leadersand-
leaders.
8
experience of a system of apartheid, this impresses on us, as Member States to take action in
accordance with international law.”40
— On 21 December 2023, South Africa sent a Note Verbale to the Embassy of Israel in South
Africa, in which South Africa raised its concerns about “credible reports that acts meeting the
threshold of genocide or related crimes as defined in the 1948 Convention on the Prevention
and Punishment of Genocide, have been and may still be committed in the context of the
conflict” in Gaza. The Note Verbale recalled that “[a]s a State Party to the Convention on the
Prevention and Punishment of the Crime of Genocide, South Africa is under a treaty obligation
to prevent genocide from occurring, and therefore calls upon Israel which is also a State Party
to the Convention to immediately cease hostilities in Gaza and to refrain from conduct
constituting or failing to prevent violations of its obligations under the Convention”. South
Africa, “[a]larmed by rhetoric from Israeli officials and others”, also called on Israel “to prevent
and punish direct and public incitement to genocide”. This served to communicate directly to
Israel South Africa’s claims regarding the fulfilment of its own obligations under the Genocide
Convention and breaches by Israel of its obligations under the Genocide Convention and the
detail thereof.41
14. Israel has not responded directly to South Africa’s Note Verbale sent on 21 December 2023.
However, Israel has publicly rejected any suggestion that it has violated international law in its military
campaign in Gaza. Notably, Israel has dismissed as “outrageous and false” the assertion that Israel’s
military attacks on Gaza meet “the legal definition of genocide” and are aimed at “not just simply the
killing of innocent people and the destruction of their livelihoods but a systematic effort to empty Gaza
of its people”.42 Israel denies that its conduct in Gaza violates its obligations under the Genocide
Convention, asserting that “[t]he accusation of genocide against Israel is not only wholly unfounded as
a matter of fact and law, it is morally repugnant” and “antisemitic”.43 Moreover, Israel has engaged and
continues to engage in acts and omissions against the Palestinian people in Gaza as have been asserted
to be genocidal and, by its attitude and conduct, has refuted any suggestion that its actions in Gaza are
constrained by its obligations under the Genocide Convention. Indeed, the Israeli Prime Minister
asserted on 26 December 2023: “We are not stopping. We are continuing to fight, and we are deepening
the fighting in the coming days, and this will be a long battle and it is not close to being over."44 Israel’s
own conduct therefore serves to underline the parties’ disagreement. South Africa has not resiled from
its own position that it is responsible as a State party to the Genocide Convention to act to prevent
genocide or a risk thereof in Gaza.
15. According to the established case law of the Court, a dispute is “a disagreement on a point of
law or fact, a conflict of legal views or interests” between parties.45 Such a disagreement or “positive
40 UN News, UN General Assembly votes by large majority for immediate humanitarian ceasefire during emergency session
(video of the session at 1:13:37) (12 December 2023) https://news.un.org/en/story/2023/12/1144717.
41 South Africa, DIRCO, Note Verbale (21 December 2023).
42 “Jordan says Israel aims to expel Palestinians from Gaza”, Reuters (10 December 2023),
https://www.reuters.com/world/middle-east/jordan-says-israel-aims-expel-palestinians-gaza-2023-12-10/.
43 Israeli Ministry of Foreign Affairs, The War Against Hamas: Answering Your Most Pressing Questions (15 December
2023), https://www.idf.il/en/mini-sites/hamas-israel-war-23/all-articles/the-war-against-hamas-answering-your-mostpressing-
questions/.
44 Statement by Israeli Prime Minister to Likud Party, 25 December 2023: Jeremy Sharon, "After rare visit to Gaza,
Netanyahu says war ‘not close to being over’", The Times of Israel (25 December 2023),
https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/.
45 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 13, para. 27, citing Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998,
p. 315, para. 89.
9
opposition of the claim by one party by the other need not necessarily be stated expressis verbis… the
position or the attitude of a party can be established by inference, whatever the professed view of that
party”.46
16. There is plainly a dispute between Israel and South Africa relating to the interpretation and
application of the Genocide Convention, going both to South Africa’s compliance with its own
obligation to prevent genocide, and to Israel’s compliance with its obligations not to commit genocide
and to prevent and punish genocide — including the direct and public incitement to genocide — and to
make reparations to its victims and offer assurances and guarantees of non-repetition. Given that South
Africa’s claim concerns its own obligations as a State party to the Genocide Convention to act to prevent
genocide — to which Israel’s acts and omissions give rise — South Africa plainly has standing in
relation thereto. Moreover, given that “any State party to the Genocide Convention, and not only a
specially affected State, may invoke the responsibility of another State party with a view to ascertaining
the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end”,
South Africa also “has prima facie standing” to submit to the Court its dispute with Israel “on the basis
of alleged violations of obligations under the Genocide Convention”.47
17. Therefore, pursuant to Article 36 (1) of the Court’s Statute and Article IX of the Genocide
Convention, the Court has jurisdiction to hear the claims submitted in the present Application by South
Africa against Israel.
III. THE FACTS
A. Introduction
18. Since 7 October 2023, Israel has engaged in a large-scale military assault by land, air and sea,
on the Gaza Strip (‘Gaza’), a narrow strip of land approximately of 365 square kilometres – one of the
most densely populated places in the world.48 Gaza — home to approximately 2.3 million people,
almost half of them children — has been subjected by Israel to what has been described as one of the
“heaviest conventional bombing campaigns” in the history of modern warfare.49 By 29 October 2023
alone, it was estimated that 6,000 bombs per week had been dropped on the tiny enclave.50 In just over
two months, Israel’s military attacks had “wreaked more destruction than the razing of Syria’s Aleppo
between 2012 and 2016, Ukraine’s Mariupol, or proportionally, the Allied bombing of Germany in
World War II.”51 The destruction wrought by Israel is so extreme that “Gaza is now a different colour
46 Ibid.
47 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p.17, paras. 41-42.
48 UN OCHA, Hostilities in the Gaza Strip - Reported Impact (5 December 2023),
https://www.ochaopt.org/sites/default/files/Gaza_casualties_info-graphic_5_Dec_2023%20final.pdf.
49 John Paul Rathbone, “Israel’s Gaza attack ‘one of history’s heaviest conventional bombing campaigns’”, The Irish Times
(6 December 2023), https://www.irishtimes.com/world/middle-east/2023/12/06/israels-gaza-attack-one-of-historys-heaviestconventional-
bombing-campaigns/.
50 Francesca Albanese,UN Special Rapporteur on the situation of Human Rights in the Palestinian territories occupied since
1967, an interview with UN News, 29 October 2023, https://news.un.org/en/story/2023/10/1142952; see also: Natasha
Bertrand and Katie Bo Lillis, “Exclusive: Nearly half of the Israeli munitions dropped on Gaza are imprecise ‘dumb bombs’,
US intelligence assessment finds”, CNN (14 December 2023), https://edition.cnn.com/2023/12/13/politics/intelligenceassessment-
dumb-bombs-israel-gaza/index.html; “Why is Israel using so many dumb bombs in Gaza”, The Economist (16
December 2023), https://www.economist.com/interactive/middle-east-and-africa/2023/12/16/why-is-israel-using-so-manydumb-
bombs-in-gaza.
51 Julia Frankel, “Israel’s military campaign in Gaza seen as among the most destructive in history, experts say”, AP News
(21 December 2023), https://apnews.com/article/israel-gaza-bombs-destruction-death-toll-scope-
419488c511f83c85baea22458472a796.
10
from space. It’s a different texture”.52 As stated by the United Nations Secretary-General, in a letter
dated 6 December 2023 to the President of the United Nations Security Council,53 of which the United
Nations General Assembly took express “note” in Resolution ESIO/22 of 12 December 2023 on the
Protection of civilians and upholding legal and humanitarian obligations:54
“Civilians throughout Gaza face grave danger. Since the start of Israel's military operation, more
than 15,000 people have reportedly been killed, over 40 per cent of whom were children.
Thousands of others have been injured. More than half of all homes have been destroyed. Some
80 per cent of the population of 2.2 million has been forcibly displaced, into increasingly
smaller areas. More than 1.1 million people have sought refuge in UNRWA facilities across
Gaza, creating overcrowded, undignified, and unhygienic conditions. Others have nowhere to
shelter and find themselves on the street. Explosive remnants of war are rendering areas
uninhabitable. There is no effective protection of civilians.
The health care system in Gaza is collapsing. Hospitals have turned into battlegrounds. Only
14 hospitals out of 36 facilities are even partially functional. The two major hospitals in south
Gaza are operating at three times their bed capacity and are running out of basic supplies and
fuel. They are also sheltering thousands of displaced persons. Under these circumstances, more
people will die untreated in the coming days and weeks.
Nowhere is safe in Gaza.
Amid constant bombardment by the Israel Defense Forces, and without shelter or the essentials
to survive, I expect public order to completely break down soon due to the desperate conditions,
rendering even limited humanitarian assistance impossible. An even worse situation could
unfold, including epidemic diseases and increased pressure for mass displacement into
neighbouring countries.
While delivery of supplies through Rafah continues, quantities are insufficient and have
dropped since the pause came to an end. We are simply unable to reach those in need inside
Gaza . . . We are facing a severe risk of collapse of the humanitarian system. The situation is
fast deteriorating into a catastrophe with potentially irreversible implications for Palestinians as
a whole and for peace and security in the region. Such an outcome must be avoided at all cost.”55
19. Since that letter was written, the numbers have risen even more starkly: at least 21,110
Palestinians in Gaza have been killed and over 55,243 other Palestinians have been wounded, many
severely. 56 The death toll includes over 7,729 children,57 not including the 4,700 women and children
still missing, and presumed dead under the rubble.58 Entire multi-generational families have been wiped
out completely. Over 355,000 homes equivalent to more than 60 per cent of Gaza’s housing stock in
52 Ibid.
53 The Secretary-General, Letter by the Secretary-General to the President of Security Council invoking Article 99 of the
United Nations Charter (6 December 2023), https://www.un.org/sites/un2.un.org/files/sg_letter_of_6_december_gaza.pdf.
54 General Assembly resolution ES-10/22, Protection of civilians and upholding legal and humanitarian obligations,
A/RES/ES-10/22 (12 December 2023), https://www.un.org/unispal/wp-content/uploads/2023/12/N2339709.pdf.
55 The Secretary-General, Letter by the Secretary-General to the President of Security Council invoking Article 99 of the
United Nations Charter (6 December 2023), https://www.un.org/sites/un2.un.org/files/sg_letter_of_6_december_gaza.pdf.
56 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #78 (27 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-78 ; UN OCHA, Hostilities in the Gaza Strip
and Israel - reported impact| Day 82 (27 December 2023), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israelreported-
impact-day-82 . Statistics cited in this Application are up to date to 27 December 2023. UNOCHA collates locally
collected data.
57 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #78 (27 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-78.
58 Red Crescent Society, Palestine Red Crescent Society Response Report As of Saturday, October 7th 2023, 6:00 PM Until
Sunday, December 24th 2023, 24:00 AM (24 December 2023), p.1,
https://www.palestinercs.org/public/files/image/2023/News/latestresponse23012023/en%20220%202023.pdf.
11
Gaza has been damaged or destroyed.59 1.9 million Palestinians — approximately 85 per cent of the
total population — have been internally displaced.60 Many fled the north of the territory to the south,
having been ordered to do so by Israel, only to be bombed again in the south, and told to flee once again
further south or the south west, where they are reduced to living in makeshift tents in camps with no
water, sanitation or other facilities.61 Israel has bombed, shelled and besieged Gaza’s hospitals, with
only 13 out of 36 hospitals partially functional, and no fully functioning hospital left in North Gaza.62
Gaza’s healthcare system has all but collapsed, with reports of operations, including amputations and
caesarean sections, taking place without anaesthetic.63 A significant proportion of the wounded and sick
are unable to access any or adequate care.64 Contagious and epidemic diseases are rife amongst the
displaced Palestinian population, with experts warning of the risk of meningitis, cholera and other
outbreaks.65 The entire population in Gaza is at imminent risk of famine, whereas the proportion of
households affected by acute food insecurity is the largest ever recorded according to the Integrated
Food Security Phase Classification (‘IPC’).66Experts warn that silent, slow deaths caused by hunger and
thirst risk surpassing those violent deaths already caused by Israeli bombs and missiles.67
20. The United Nations General Assembly has expressed “grave concern over the catastrophic
humanitarian situation in the Gaza Strip and the suffering of the Palestinian civilian population”,68 with
the United Nations Security Council noting in particular “the disproportionate effect on children”.69 In
its Resolution ES10/22 of 12 December 2023, the United Nations General Assembly also took express
“note” of a letter dated 7 December 2023 from the Commissioner-General of the United Nations Relief
and Works Agency for Palestine Refugees in the Near East (‘UNRWA’), addressed to the President of
59 UN OCHA, Hostilities in the Gaza Strip and Israel - Reported Impact | Day 73 (19 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-73.
60 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #77 (26 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-77.
61 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #60 (5 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-60.
62 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #78 (27 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-78.
63 UN News, Gaza: UN’s Türk calls for political path out of 'horror' (16 November 2023),
https://news.un.org/en/story/2023/11/1143657; UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #32 (7
November 2023), https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israelflash-
update-32; UN News, Interview: 5,500 women in Gaza set to give birth ‘in race against death’ (7 November 2023),
https://news.un.org/en/interview/2023/11/1143327.
64 UN News, Gaza doctors 'terrified’ of deadly disease outbreak as aid teams race to deliver (28 November 2023),
https://news.un.org/en/story/2023/11/1144032.
65 World Health Organization (‘WHO’), WHO Director-General’s opening remarks at the Special Session of the Executive
Board on the health situation in the occupied Palestinian territory – 10 December 2023 (10 December 2023),
https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-special-session-of-theexecutive-
board-on-the-health-situation-in-the-occupied-palestinian-territory---10-december-2023; UN OCHA, Hostilities in
the Gaza Strip and Israel | Flash Update #67 (12 December 2023), https://www.ochaopt.org/content/hostilities-gaza-stripand-
israel-flash-update-67.
66 UN OCHA, Hostilities in the Gaza Strip and Israel | Flash Update #77 (26 December 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-77; UN OCHA, Remarks to the media by the
Secretary-General (22 December 2023), https://www.ochaopt.org/content/remarks-media-secretary-general.
67 Interview with James Elder, UNICEF spokesperson by Channel 4, “This is a war on children’ says UNICEF spokesperson
James Elder, who recently returned from Gaza”, Channel 4 (14 December 2023), https://www.channel4.com/news/this-is-awar-
on-children-says-unicef-spokesperson-james-elder-who-recently-returned-from-gaza; “Disease could kill more in Gaza
than bombs, WHO says amid Israeli siege”, AlJazeera (28 November 2023),
https://www.aljazeera.com/news/2023/11/28/disease-could-kill-more-in-gaza-than-bombs-who-says-amid-israeli-siege.
68 General Assembly resolution ES-10/22, Protection of civilians and upholding legal and humanitarian obligations,
A/RES/ES-10/22, (12 December 2023), https://www.un.org/unispal/wp-content/uploads/2023/12/N2339709.pdf; General
Assembly resolution ES-10/21, Protection of civilians and upholding legal and humanitarian obligations, A/RES/ES-10/21,
(30 October 2023), https://www.un.org/unispal/document/protection-of-civilians-and-upholding-legal-and-humanitarianobligations-
ga-resolution-a-res-es-10-21/.
69 Security Council resolution 2712, The situation in the Middle East, including the Palestinian Question, S/RES/2712 (15
November 2023), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N23/359/02/PDF/N2335902.pdf?OpenElement.
12
the General Assembly. In the unprecedented letter, the Commissioner-General “predict[s] . . . the
collapse of the mandate [he] is expected to fulfil” and calls for “an end to the decimation of Gaza and
of its people”.70