By a majority of 15 to two judges, the ICJ ordered Israel to take all reasonable measures within its power (so-called provisional measures) to prevent a genocide against the people of Palestine in the Gaza Strip.
ProfessorsTembeka Ngcukaitobi and Max du Plessis, two of South Africa’s legal representatives in the case, are adjunct professors in the Faculty of Law, Nelson Mandela University, South Africa.
Honorary Doctorate: Faculty of Law
The Convention entitled both Israel and South Africa to nominate judges. South Africa chose retired Constitutional Court judge, Dikgang Moseneke, as its representative. In 2018, the Faculty of Law, Nelson Mandela University, conferred an honorary doctorate on Judge Moseneke. This means that three of the role-players involved are closely linked to the Faculty of Law at Mandela.
Background
In October 2023, Hamas, based in the Gaza Strip, launched an attack on Israel, killing and injuring thousands of people in Israel and abducting 240 hostages, many of whom are still being held hostage. Israel then launched a massive military operation in Gaza (by land, air, and sea) causing an immense number of civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza.
Reports verify that over 25,700 Palestinians have been killed, at least 63,000 injuries have been reported, and over 360,000 housing units have been destroyed or damaged. Plus, approximately 1.7 million persons have been internally displaced. The extent of human tragedy that is unfolding in the region is enormous and has caused extensive loss of human lives and suffering.
Legal proceedings in terms of the Convention
In December 2023, South Africa instituted proceedings against Israel alleging that Israel had violated its obligations under the Genocide Convention by failing to prevent a genocide of the Palestinian people. Both Israel and South Africa are State parties to the Genocide Convention, which obliges all State parties “to prevent” the crime of genocide. Any State party is entitled to request that another State party comply with the Convention. South Africa accordingly asked the ICJ to order that Israel take immediate steps to comply with its treaty obligations to prevent a genocide.
A genocide is defined as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Such acts include (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; and (c) deliberately inflicting conditions of life on the group calculated to bring about its physical destruction in whole or in part. The Convention also prohibits the direct and public incitement to commit genocide, attempts to commit genocide and complicity in genocide. Its aim is to protect groups of vulnerable people from such acts.
Judgment
The ICJ found that the Palestinian people were in an extremely vulnerable position and as a group deserved protection in terms of the Convention. To this end, the ICJ accepted reports that “Gaza has become a place of death and despair … Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner. For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.”
The Court also noted UN press releases voicing alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials” and “sharp increase in racist hate speech and dehumanization directed at Palestinians”.
According to the ICJ, these facts were sufficient to conclude that the Palestinian people in Gaza have a right to be protected from acts of genocide and related prohibited acts and that there is a real and imminent risk that irreparable prejudice could be caused if the Court did not intervene. Similarly, South Africa was entitled to seek Israel’s compliance with its obligations under the Convention.
Order
The Court found that a dispute existed between Israel and South Africa as to Israel’s obligations in terms of the Convention and that South Africa had taken diplomatic steps to urge Israel to desist from its military actions. The ICJ thus had jurisdiction to hear the case and ordered Israel to take all reasonable measures within its power to prevent a genocide against the people of Palestine in the Gaza Strip.
Israel was also ordered to take immediate and effective measures to enable the provision of basic services and humanitarian assistance needed urgently by the Palestinian people and to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of the Convention against members of the Palestinian group in the Gaza Strip. The Court requires Israel to submit a report to it on all measures taken to give effect to this Order within one month.