The ICJ faces a stark choice, but SA just needs to get a foot in the door

“The circumstance could not be more urgent”, says SA in seeking to persuade the International Court of Justice (ICJ) to “indicate provisional measures”: issue binding interim orders against Israel to suspend military operations in Gaza at once; stop killing and injuring Palestinians; and stop “deliberately inflicting conditions of life calculated to bring about [their] destruction”.

Israel did not submit a written response to SA’s application. This is not a requirement now, but it will oppose the application at a provisional measures hearing set down for Thursday and Friday at the Peace Palace in The Hague.

Israel has called SA’s case a “blood libel”. Due to there being no answering papers yet, Israel’s case on the provisional measures, in law, is yet to be revealed, even to SA’s lawyers. SA will argue its case on Thursday and Israel is scheduled to respond on Friday.

SA also wants the court to implement, as provisional measures, that Israel stop expelling Palestinians from their homes, stop depriving them of food and water, and stop preventing their access to humanitarian assistance and medical supplies. It wants an order that will prevent destruction of evidence crucial for its case in the longer term, and that will allow access by fact-finding missions. It wants international mandates “to assist in ensuring the preservation and retention of said evidence”.

The provisional measures hearing is the first part of SA’s case against Israel. Its bigger case, to be argued in due course, is that Israel violated the Genocide Convention in a number of ways. Israel is not only committing genocide in Gaza, a breach of article III (a) of the convention, it is also failing to prevent genocide in violation of article I, conspiring to commit genocide in violation of article III (b), directly and publicly inciting genocide in violation of article III (c), attempting to commit genocide in violation of article III (d), being complicit in genocide in violation of article III (e) and failing to punish genocide in violation of articles IV and V. There are others.

‘Plausible’ case

But even for the interim proceedings, the breadth of these alleged violations is important because at this point all SA needs to show the court is that it has a “plausible” case. For the implementation of provisional measures, SA needs only to get its foot in the door. At this stage of the proceedings the court is not called on to determine whether it is satisfied that the rights which SA seeks to protect exist. It need decide only whether it is satisfied that the rights asserted by SA on the merits, and for which it is seeking protection, are “at least plausible”.

In seeking to establish an “at least plausible” case, SA has set out, in an 84-page application, a detailed, fact-heavy history of Israel’s treatment of Palestinians stretching much further back than October 7, which makes for grim reading.

Most of its sources for this history are UN reports.

Acts of genocide “inevitably form part of a continuum”, says SA. This was recognised by Raphael Lemkin, who coined the term “genocide”, says the application. “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-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”

SA refers to the “stringent” blockade of Gaza after Hamas’ electoral victory in 2006, which saw travel restrictions imposed by Israel and led to the World Health Organisation (WHO) reporting that 839 people had died waiting for medical permits to leave Gaza for urgent medical treatment between 2008 and 2021. It refers to the food import restrictions imposed between 2007 and 2010 “in accordance with calories consumed per person, to limit the transfers of food to a “humanitarian minimum”. It refers to the fishing restrictions and the reduction of the agricultural area available to Palestinians for farming.

“As long ago as 2015, the UN Conference on Trade and Development warned that the restrictive measures imposed by Israel risked Gaza becoming uninhabitable by 2020.”

Between September 29 2000 and October 7 2023, about 7,569 Palestinians were killed, including 1,699 children, says the application. It contains excerpts by UN fact-finding missions in 2001, 2008, 2009, 2015 and 2019, all of which sounded the alarm about brutality and abuses, sometimes possible war crimes and crimes against humanity, by the Israeli Defence Force.

In 2021, the special rapporteur on the situation of human rights in Palestinian territories said “regrettably, the international community’s remarkable tolerance for Israeli exceptionalism in its conduct of the occupation has allowed realpolitik to trump rights, power to supplant justice and impunity to undercut accountability”.

In this way, the application — perhaps in anticipation of a possible argument from Israel — seeks to dispel the idea that Israel’s current actions are a specific response to Hamas’ horrific attack on October 7.

Apartheid regime

The overall picture is that what Israel is doing is consistent with what it has been doing for years: more of the same, but infinitely and tragically worse. This is supported by the application’s section on the West Bank, where Hamas is not in control, yet the application details the “institutionalised regime of discriminatory laws, policies and practices applied by Israel [that] subject Palestinians to what constitutes an apartheid regime”.

These include a segregating wall, discriminatory land zoning, a dual legal system, detentions without trial, routine violent house raids and deaths in custody. Israelis in the West Bank get more water than Palestinians, Palestinians’ homes are demolished to build houses for settlers. There are areas that are off-limits to Palestinians. For South Africans, these features will be all too familiar.

At least 2,186 Palestinians have been internally displaced in the West Bank since October 7 “as a result of extreme settler violence”, says the application. Last year, 495 Palestinians were killed in the West Bank, with 295 of these dying after October 7.

All this is detailed by the application before it even gets to the events after the Hamas attack on October 7. The application “unequivocally condemns” the targeting of civilians and the taking of hostages by Hamas.

Urgency

On Israel’s current war, the application stresses the urgency of the court’s intervention, quoting UN staff that Gaza is “a living hell” and “we are out of words to describe what is going on”.

Nowhere is safe in Gaza, said the UN secretary-general, recounts the application.

This aspect of the application is significant for SA’s case because, though Israel’s response in court is yet to be revealed, its government has emphasised that it has created humanitarian corridors and safe zones, and it has warned civilians to evacuate ahead of bombing, said spokesperson for Israel Eylon Levy. Israel may argue that these actions cannot be reconciled with the special intent required to make a finding of genocide.

The SA application says: “Palestinians in Gaza have been killed in their homes, in places where they sought shelter, in hospitals, in UNWRA [UN Relief and Works Agency] schools, in churches, in mosques, and as they tried to find food and water for their families.

“They have been killed if they failed to evacuate, in the places to which they have fled, and even while they attempted to flee along Israeli declared ‘safe routes’”. The application says that the forced evacuations are permanent for many Palestinians, with an estimated 355,000 homes destroyed, or 60% of the entire housing stock in Gaza.

“The forced displacements in Gaza are genocidal, in that they are taking place in circumstances calculated to bring about the physical destruction of Palestinians in Gaza,” says the application.

Brink of famine

It says that Israel has pushed the Palestinian population to the brink of famine. Most Palestinian people are starving. Water is severely depleted.

“Experts are predicting more Palestinians in Gaza may die from starvation and disease than air strikes, and yet Israel is intensifying its bombing campaign, precluding the effective delivery of humanitarian assistance to Palestinians. It is clear Israel is, through its actions and policies in Gaza, deliberately inflicting on Palestinians’ conditions of life calculated to bring about their destruction.”

The application has compiled a list of “expressions of genocidal intent” which it says — when combined with the level of killing, maiming, displacement and destruction — are “evidence of an unfolding and continuing genocide”.

The list includes statements by Israeli Prime Minister Benjamin Netanyahu, President Isaac Herzog, defence minister Yoav Gallant and national security minister Itamar Ben-Gvir.

In addition, the list includes statements made by other “prominent members of Israeli society, including former parliamentarians and news anchors”, which SA says constitute clear direct and public incitement to genocide but have gone “unchecked and unpunished by the Israeli authorities”.

Here, SA may be anticipating another argument from Israel: that some of these statements were not made by representatives of the Israeli state.

But they would be relevant to whether the state is preventing genocide or failing to punish genocide, which is also punishable under the convention and therefore capable of engaging the court’s power to indicate provisional measures.

Without knowing anything about Israel’s case it is difficult to assess the strength of SA’s.

However, some international law experts and commentators have agreed that, particularly on provisional measures, SA’s case is strong if the court decides based on the law, including its own judgments, and the facts.

For some, the case may be a test of the court itself and for the whole system of public international law, which has long been the subject of criticism.

Mohsen al Attar, associate dean of learning and teaching at Xi’an Jiaotong-Liverpool University, said in a recent blog post: “Israel backed itself into a corner by chest-thumping in full daylight its violations of the Genocide Convention, the Geneva Conventions, and the most basic tenets of IHL [international humanitarian law], leaving the ICJ with no option but to accept SA’s robust intervention.

“The ICJ faces a stark choice: find in favour of SA and indicate provisional measures or damn international law into oblivion.”

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