THE Israeli-Hamas war is a complex, tragic, and enduring issue in contemporary global politics. The South African government has always expressed deep concern over Israel鈥檚 ruthless military operations against the Palestinian people. Indeed, the governing party, the African National Congress, has a long history of solidarity and sympathy for the Palestinian struggle.
South Africa filed a landmark lawsuit on December 29, 2023, against Israel in the International Court of Justice. The ICJ follows the 1948 鈥楪enocide Convention鈥�, which was unanimously approved by the United Nations General Assembly. The ICJ is composed of 15 distinguished judges from various countries who are elected by the UN General Assembly and the Security Council.
The 鈥楪enocide Convention鈥� provides a clear definition of genocide, encompassing acts carried out with the intention of destroying a national, ethnic, racial, or religious group, either wholly or partially. The Convention emphasised the responsibility of the contracting parties to implement measures aimed at preventing and punishing the crime of genocide. South Africa and Israel are both signatories to the Genocide Convention.
Once again, South Africa鈥檚 legal team has made a new formal move to the ICJ to arbitrate and put an end to Israel鈥檚 violent military assault in Rafah, Gaza. Accordingly, on May 24, the ICJ ordered Israel to immediately stop its brutal military operations in Rafah. Significantly, this is the third ruling since October 7, 2023. The judges of the court alleged that they are 鈥榥ot convinced鈥� that Israel has taken adequate measures to lessen the suffering of the Palestinian people. As part of a broader case brought by South Africa condemning Israel of genocide, ICJ president Nawaf Salam delivered the binding ruling of the 15-panel of judges at The Hague. In short, the court ordered specifically four precautionary emergency measures. (a) Israel must stop the military offensive in Rafah; (b) ensure war crimes investigators move to Gaza; (c) reopen the Rafah crossing to facilitate unhindered humanitarian aid; and (d) report to the ICJ within a month on the actions taken.
In addition, Judge Salam stated: 鈥楾he court considers that, in conformity with the obligations under the Genocide Convention, Israel must immediately halt its military offensive and any other action in the Rafah Governate that may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.鈥� The court also urged the 鈥榰nconditional鈥� release of all the hostages earlier held by Hamas. While Hamas hailed the judge鈥檚 verdict on Rafah, Israel declared that it would continue its offensive and deplored the ruling. The ruthless Israeli forces killed more than 30 Palestinians in the Gaza Strip a day after the court ruling. It may be recalled that, infuriated by the nonstop Israeli assault, on May 13, Egypt affirmed that it would formally join the case against Israel filed by South Africa. This political move is likely to strengthen legal proceedings at the ICJ and reaffirm Egypt鈥檚 firm commitment to the Palestinian cause.
Earlier on May 10, the ICJ made a different ruling on South Africa鈥檚 urgent request for additional emergency measures in response to Israel鈥檚 offensive on Rafah. The offensive has led to over a million Palestinians seeking shelter and facing dire circumstances. The court gave the following orders: (a) urge Israel to promptly cease its military offensive in Rafah; (b) encourage Israel to facilitate unrestricted access for UN officials, aid workers, journalists, and investigators into Gaza by implementing effective measures; and (c) expect Israel to provide updates on the implementation of the first two orders. But Israel has yet to comply with the court orders. Israel asserts its involvement in a defensive war. Gilad Noam, the deputy attorney general of Israel, firmly stated to the ICJ that the actual facts and circumstances do not support South Africa鈥檚 accusations of genocide. Noam reiterated that the accusation completely undermines the gravity of the genocide charge. Notably, the ICJ held public hearings on January 11鈥�12, 2024, to address South Africa鈥檚 petition for additional provisional protective measures. Legal experts assert that the ICJ will not pass judgement on whether the Israeli government has committed genocide at this point.
During the previous ICJ hearings, South Africa emphasised Israel鈥檚 alleged failure to facilitate vital food, water, medicine, fuel, and other crucial forms of humanitarian aid for the suffering people of Gaza. South Africa also highlighted the devastating impact of Israel鈥檚 on-going bombing campaign, resulting in the tragic loss of over 25,000 Palestinian lives, mostly women and children, during the first four months.
Following an initial round of trials in January 2024, the ICJ determined that Israel violated several fundamental rights protected for the Palestinian people of Gaza under the Genocide Convention. The prudent judges also mandated Israel to prevent life loss and devastation, as well as any acts of mass violence in Gaza. However, the court did not issue an order for Israel to cease its military offensive in the Gaza Strip, as requested by South Africa. In March, the court issued emergency measures and asked Israel to implement orders to guarantee the delivery of food and other essential items to the Palestinians in the Gaza Strip.
Initially, South Africa lodged a lawsuit with the ICJ, blaming Israel for genocide against the Palestinian people. The case was officially documented as 鈥楢pplication of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip鈥�, (South Africa v. Israel). Surprisingly, countries across the world immediately voiced their firm support for the case against Israel. Notably, the Organisation of Islamic Cooperation, consisting of 57 member countries including Saudi Arabia, Iran, Egypt, Jordan, Turkey, Pakistan, and Bangladesh, along with the Arab League, consisting of 22 member countries, have expressed strong support for the legal proceedings initiated by South Africa. Both later urged countries worldwide to take decisive action to halt the heinous crime of genocide against the Palestinian people in the Gaza Strip.
Prime minister Benjamin Netanyahu鈥檚 extreme right-wing regime has vehemently rejected the accusations of genocide, deeming them disgraceful and outrageous. He accused Hamas of using Palestinians as human shields, a claim that Hamas denies. Notably, the conflict between Hamas and Israel in October 2019 resulted in the unfortunate loss of approximately 1,200 Israeli lives and the abduction of around 250 people.
The restraining order from the ICJ is a crucial step in the larger genocide case against Israel. It will require a significant amount of time for the ICJ to thoroughly analyse the case and deliver its crucial final verdict.
The decisions made by the ICJ are conclusive and unchangeable. When a state is held responsible for atrocities against humanity, it cannot contest its verdicts. Nevertheless, these legal steps cannot be implemented by the ICJ due to the absence of its own enforcement machinery.
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Dr Kamal Uddin Ahmed is a former professor of political science in the University of Dhaka.