New The Gaza Genocide Case: A Comprehensive Overview of South Africa’s Legal Battle with Israel at the International Court of Justice
Highlights and FAQs
Prepared by Law for Palestine’s team: Leela Jadhav, Kathryn Ravey, James Henderson, and Anisha Patel
For a PDF version of this summary, click here to read/download.
CONTEXT
Since the 7th of October 2023, Israel has launched a continuous assault upon Palestinians in the Gaza Strip, indiscriminately targeting civilians and protected objects in violation of international law. It has become clear from the scale of the attacks against Gaza that Israel is attempting to conduct a genocide, with many academics and world leaders accusing Israel of conducting a genocide against Palestinians within Gaza. On the 29th of December 2023,following 83 days of non-stop onslaught by Israeli armed forces, South Africa (SA) filed an application instituting proceedings against Israel (IL) in front of the International Court of Justice (ICJ), concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Israel’s assault upon Palestinians in the Gaza Strip.
SA argues that “[t]he 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 ethnic group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’).”[1]
The Application is notable for its use of the erga omnes partes standing (“in relation to everyone”), which was updated following in The Gambia’s proceedings against Myanmar in 2019. In international law, the “erga omnes partes” doctrine pertains to obligations that a state owes to the international community as a whole, extending beyond specific bilateral or multilateral agreements. This concept implies that fundamental principles and norms, such as prohibitions against genocide, are obligations shared by all states towards the global community. Violations of these obligations are considered offenses against the international order, granting any state the right to take action to ensure their protection.
SA’s application contains a Request for the Indication of Provisional Measures, requiring the court to make an initial ruling on the case, in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention”[2] and to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide. Importantly, provisional measures have a lower threshold of proof, as “[t]he Court does not have to determine that all of the acts complained of are capable of falling within the provisions of the Convention”.[3]This reduced burden of proof means that the court doesn’t have to conclusively prove that all the actions within the application fall within the provisions of the Convention, allowing for a more flexible and expedited process when requesting interim measures before a full case is heard.
KEY POINTS FROM THE APPLICATION
The comprehensive 84-page document primarily consists of…………
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