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South Africa's Case Against Israel in the International Court of Justice

  • Published
    25th Jan, 2024

Context:

The Republic of South Africa's proceedings against Israel in the International Court of Justice (ICJ) over the Gaza war serve as a crucial test for the 'rules-based international order.'

1. Legal Context and Genocide Allegations:

   - South Africa's Application and Erga Omnes Obligation : Filed on December 29, 2023, alleging that Israel's military operations in Gaza violate the international Convention on the Prevention and Punishment of the Crime of Genocide.           Every state has an obligation to prevent genocide, providing the basis for South Africa's standing in the case.

   - ICJ Hearing: Held on January 11-12, 2024, to determine "provisional measures" while awaiting a ruling. Provisional measures require a plausible case for genocide, with a lower threshold of proof compared to a final hearing.

   -  Potential Provisional Measures: South Africa seeks an immediate end to military hostilities, awaiting the ICJ's decision on tailored provisional measures. Suggestions include ensuring entry of resources into Gaza, a humanitarian                    ceasefire, and restraining Israeli leaders from genocidal statements.

2. Debate and International Response:

   - Intervening Countries: Bangladesh and Jordan support South Africa, while Germany supports Israel. The U.S., U.K., and France express opposition, with France threatening non-compliance if the ICJ finds genocide.

   - South Africa's Case: Highlights Palestinian dispossession, Gaza war casualties, destruction of infrastructure, and genocidal statements by Israeli leaders.

   - Israel's Defense: Denies dispute, argues open interpretation of statements, and justifies military operation as response to Hamas attacks.

3. ICJ vs. ICC:

   - Non-State Actors: Hamas cannot be brought to the ICJ, but both Hamas and Israeli officials can face proceedings at the International Criminal Court (ICC).

   - ICC Referral: The situation in Palestine/Israel has been referred to the ICC, but no further steps have been taken.

   - Colonial Powers' Influence: Debate reflects a split between former colonial powers and others, raising questions about the legitimacy of international law.

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