The relentless and horrific violence in Gaza must come to an immediate halt. Urging an end to the Gaza conflict emphasizes the critical need for a permanent ceasefire and humanitarian actions. The ongoing legal proceedings against Israel present an opportunity to reshape global approaches to preventing genocide.

As the war in Gaza reached the first hundred days with no end in sight, another battle was unfolding at the International Court of Justice (ICJ) in The Hague. Over two days in January, South Africa presented an urgent, meticulously prepared, and compelling case accusing Israel of committing genocide against Palestine in Gaza in contravention of the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide.
South Africa’s 84-page “Application Instituting Proceedings”1 to the ICJ  stated, "acts and omissions by Israel are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.” Acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction."

South Africa’s 84-page “Application Instituting Proceedings” to the ICJ  stated, "acts and omissions by Israel are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.” Acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction."

South Africa sought provisional (interim) measures from the ICJ to direct Israel to suspend its military operations and take steps aimed at preventing the further risk of genocide, including that it must cease any genocidal acts including, but not limited to, ensuring that those committing or inciting genocide are punished, ensuring collection and preservation of evidence of genocidal acts, issue instructions on reparations including allowing displaced Palestinians to return to their homes, reconstruct what it destroyed in Gaza, and ensure respect for the human rights of Palestinians in Gaza. Israel launched a vigorous defense of the case. The case is complex, but the full transcripts of the proceedings in the ICJ provide an instructive reading on pleading a case of genocide.2,3
In its case, South Africa also unequivocally condemned all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas on October 7 and other Palestinian armed groups. Their pleading stated clearly that no armed attack on a state's territory, no matter how serious–even an attack involving atrocity crimes–can provide any possible justification for, or defense to, breaches of the 1948 Genocide Convention. The case emphasizes Israel's disproportionate response by indiscriminately bombing the civilian population of Gaza.

South Africa’s lawyers also presented videos of Israel Defense Forces (IDF) soldiers in the field chanting some of the leaders’ genocidal slogans and celebrating indiscriminate destruction. In every utterance and action, there are indications of intent and total disregard for international law. IHL draws a line between civilians and combatants, prohibiting any attacks directly targeting civilians or civilian objects. The ‘civilian population’ is a term that refers to groupings of civilian persons. The presence of some combatants within the general civilian population does not render the civilian population as a whole targetable.

Fifteen ICJ judges from the U.S., China, Russia, France, Australia, Brazil, Jamaica, Germany, India, Japan, Lebanon, Morocco, Slovakia, Somalia, and Uganda, appointed for nine-year terms through elections at the UN General Assembly (UNGA) and the Security Council (UNSC), are deliberating on the case. Two ad hoc judges–one from South Africa and Israel–have also been sworn in to join them on the bench for this case only.
At this stage of the proceedings, South Africa does not have to prove its case, only to demonstrate that the rights in dispute are at least plausible, that the measures sought are urgent, and that failure to award them would result in irreparable harm.
But does the case meet the legal criteria for genocide? Anyone with a shred of humanity would think so, but it is a difficult crime to prosecute. So, to better understand the complexity, it is helpful to have some basic understanding of the linkages between the Geneva Conventions, International Humanitarian Law/Law of Armed Conflict, the specific Convention on Genocide Genocide, and the jurisdiction of relevant international Courts–the International Court of Justice and the International Criminal Court. 
Genocide was first recognized as a crime under international law in 1946 by the UNGA (A/RES/96-I).4,5,6,7,8 It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) and ratified by 153 States. The Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are bound as a matter of law by the principle that genocide is a crime prohibited under international law. No exemption from it is allowed.
Elements of the Crime of Genocide
Article I of the Genocide Convention states that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation, although this is less common. The same article establishes the obligation of the contracting parties to prevent and punish the crime of genocide. Article II of the Genocide Convention contains a narrow definition of the crime of genocide and states: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a)  Killing members of the group.
b)  Causing serious bodily or mental harm to members of the group.
c)  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part.
d) Imposing measures intended to prevent births within the group.
e) Forcibly transferring children of the group to another group.
Under Article III, the following acts shall be punishable: 
a)  Genocide.
b)  Conspiracy to commit genocide.
c)  Direct and public incitement to commit genocide.
d)  Attempt to commit genocide. 
e)  Complicity in genocide.
To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnic, racial, or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special or specific intent that makes the crime of genocide unique and distinguishes the criminal offense of genocide from those of crimes against humanity, war crimes, or other offenses such as unlawful killing. The intent element is the most difficult to prove, and both South Africa and Israel are focusing on this element in their conduct of the case.

The problem for South Africa’s case could be that although the ICJ’s judgments are binding and cannot be appealed by member states, it is up to the UNSC to enforce them. Given the inability of the UNSC to agree to a resolution for a ceasefire due to vetos by member states like the U.S. and the abstention of the United Kingdom (UK), it is debatable whether they would take action to enforce any provisional measures.

To address the intent element in its ICJ case, South Africa identified seven pages of public statements it defined as genocidal in nature made by Israel’s leaders, including Prime Minister Benjamin Netanyahu, President Isaac Herzog, Defense Minister Yoav Gallant, and many other elected politicians, which explicitly called for destruction or elimination of Gaza. South Africa’s lawyers also presented videos of Israel Defense Forces (IDF) soldiers in the field chanting some of the leaders’ genocidal slogans and celebrating indiscriminate destruction. In every utterance and action, there are indications of intent and total disregard for international law.
International Humanitarian Law (IHL)9 is a set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer directly or actively participating in hostilities and imposes limits on the means and methods of warfare. IHL is also known as “the law of armed conflict." IHL is part of public international law, which is made up primarily of treaties, customary international law and general principles of law (see Article 38 of the Statute of the International Court of Justice). A distinction must be made between IHL, which regulates the conduct of parties engaged in an armed conflict, and Public International Law, as set out in the Charter of the UN, which regulates whether a state may lawfully resort to armed force against another state. The Charter prohibits such use of force with two exceptions: cases of self-defense against an armed attack and when the use of armed force is authorized by the UNSC. IHL draws a line between civilians and combatants, prohibiting any attacks directly targeting civilians or civilian objects. The ‘civilian population’ is a term that refers to groupings of civilian persons. The presence of some combatants within the general civilian population does not render the civilian population as a whole targetable.
Customary International Humanitarian Law10 complements IHL and is made up of rules that come from "a general practice accepted as law" and that exist independent of treaty law. Customary International Humanitarian Law is of crucial importance in today's armed conflicts because it fills gaps left by treaty law in both international and non-international conflicts, and so strengthens the protection offered to victims. Both are legally binding.

Showing his absolute contempt for the ICJ proceedings, Israel's Prime Minsiter, on his Twitter account marking the 100 days, continued the aggressive narrative. He tweeted, “Nobody will stop us–not The Hague, not the axis of evil and not anybody else.” “We are continuing the war until the end–until total victory.”

The International Court of Justice
ICJ11 is the principal judicial arm of the UN. It deals with legal disputes between States (contentious proceedings) and requests for advisory opinions on legal questions referred to it by UN organs and specialized agencies (advisory proceedings). As one of 153 signatories to the Genocide Convention, South Africa was able to bring the case before the ICJ, though they are not a party to the conflict. Palestine is not a State and, therefore, cannot bring a case directly to the ICJ. 
The International Criminal Court
The International Criminal Court (ICC) is also based in The Hague, and although it shares the same definition of genocide with the ICJ, they have different jurisdictions. The ICC’s role is to complement, not replace, national courts and is governed by an international treaty called the Rome Statute12. The ICC prosecutes genocide as a crime committed by individuals and also has jurisdiction over other crimes that the ICJ cannot consider, including war crimes and crimes against humanity. An atrocity does not need to meet the threshold of ‘genocide’ to be prosecuted at the ICC. However, it can only do so in situations arising in States that are party to the Rome Statute of 1998.” Even though Israel is not a signatory to the Rome Statute, the occupied Palestinian Territories fall under the jurisdiction of the ICC. Therefore, the ICC has jurisdiction over potential war crimes carried out by Israelis or others in Gaza. The likelihood of cases against individuals responsible for crimes committed in Gaza since October 7 being filed in the ICC in the near future seems high. 

Both South Africa and Israel engaged the finest legal minds with extensive experience in every aspect of the Conventions and international laws. The South African lawyers were outstanding on the day. Israel's lawyers seemed lackluster in comparison, but should not be underestimated. However, no matter how good their lawyers are, the problem for South Africa’s case could be that although the ICJ’s judgments are binding and cannot be appealed by member states, it is up to the UNSC to enforce them. Given the inability of the UNSC to agree to a resolution for a ceasefire due to vetos by member states like the U.S. and the abstention of the United Kingdom (UK), it is debatable whether they would take action to enforce any provisional measures. 
The U.S. Secretary of State Antony Blinken denounced South Africa’s genocide case as “meritless.” France’s Foreign Minister, Stephane Sejourne, in a speech to parliament, made it clear that they would not support any action by the ICJ, saying, "Accusing the Jewish state of genocide crosses a moral threshold. The notion of genocide cannot be exploited for political ends." UK's Foreign Secretary, David Cameron, said it was "nonsense" for South Africa to accuse Israel of genocide, saying Israel has no case to answer at the ICJ. Remarkably, Cameron denied the possibility of intent, saying that he could not believe that Israel, as a democratic country with the rule of law, could commit genocide. Germany, the reason the Genocide Convention was adopted after the atrocities committed by Nazi Germany against Jews and other minorities in World War II, announced it would intervene to make itself a party to the case to support Israel's defense. The irony is breathtaking.
Israel's defense of the case relied on placing all blame on Hamas, relying on the right to self-defense, obfuscation, denying the bombing of hospitals and indiscriminate attacks on civilians, and trying to prove that there was no evidence of intent. This is even though defense experts estimate that almost half of the 30,000 bombs Israel dropped on the people of Gaza were unguided, in other words, 'dumb' 2,000 lb bombs designed to cause mass casualties in ‘safe’ civilian areas. The death and injury toll, evidence of systematic operations targeting and closing medical facilities throughout most of Gaza, life-threatening restrictions on food, water, electricity, medical supplies, and other essentials reaching the besieged population, repeated forced evacuations of residents with approximately 85 percent of the 2.3 million population displaced, and the massive destruction of residential buildings, schools, places of worship, and other cultural centers, defy belief. The daily summaries from the UN and reports from local journalists in Gaza provide some sense of the level of decimation and suffering.  
Assertions by Israel of its constant care to avoid civilian harm and Benjamin Netanyahu’s claim that “the IDF is the most moral army in the world” are simply not credible in the face of continuous belligerent rhetoric from political and defense leaders and a slew of outrageously callous Tik Tok videos from IDF soldiers which continue to appear on social media. Showing his absolute contempt for the ICJ proceedings, Israel's Prime Minsiter, on his Twitter account marking the 100 days, continued the aggressive narrative. He tweeted, “Nobody will stop us–not The Hague, not the axis of evil and not anybody else.” “We are continuing the war until the end–until total victory.”
In a short time, Gaza has been reduced to a wasteland of death and destruction. The UN Secretary-General, Antonio Guterres, and UN agencies, including World Health Organization (WHO), United Nations International Children's Emergency Fund (UNICEF), World Food Program (WFP), United Nations Office for the Coordination of Humanitarian Affairs (OCHA), United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and other humanitarian organizations, have unceasingly pleaded for a ceasefire, adequate funding, and full access to humanitarian assistance as the horror on the ground worsens. This was well documented in South Africa’s case in the ICJ, including a letter from the UN Secretary-General, Antonio Guterres, to the President of the Security Council13 of December 6, 2023, warned the Security Council of the humanitarian implications of rejecting the ceasefire resolution.
In a more recent letter of January 5, 2024, to the President of the Security Council,14 the Secretary-General provided a searing update of the situation on the ground. His letter stated, “Hunger and thirst are rampant, and widespread famine looms, according to the WFP. More than half a million people are facing what experts classify as catastrophic levels of hunger. WHO indicates that just 16 of the 36 hospitals in Gaza are still functioning, but only partially. They are overwhelmed with trauma cases and operating in unsafe conditions, filled with tens of thousands of people seeking safety. The hospitals are desperately short of supplies and only able to provide a modicum of comfort through the heroic efforts of health workers who have seen colleagues die and who live with the reality that their own death may be imminent. A public health catastrophe is rapidly evolving in Gaza. Infectious diseases are spreading in overcrowded shelters. Sanitary conditions are appalling, with few toilets and sewage flooding. As winter takes hold, infectious disease outbreaks will spike. WHO reports that Gaza is already experiencing soaring rates of infectious disease outbreaks.” 
Provisional Measures Ordered by the International Court of Justice
Responding to the urgency of the situation and the risk of irreparable harm as the catastrophic humanitarian situation in Gaza continues to deteriorate, on 26 January, the ICJ delivered its orders on Provisional Measures15,16, pending a final adjudication of South Africa’s claims which will be years away. The Court found that it has prima facie jurisdiction over this dispute under the Genocide Convention and that at least some of South Africa’s claims that Israel is violating the Convention are plausible. The Court ordered that:
1.  Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court recalled that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such. 
2.  Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts. 
3.  Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip. 
4.  Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip. 
5.   Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip. 
6. Israel must submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order. The report provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon. 
Although the ICJ orders are legally binding, they do not have the power to enforce them. Israel is likely to reject them completely. But schisms may arise between Israel’s allies, who are under increasing pressure because of the increasing legal and geopolitical implications of their support. In the short term, the ICJ’s orders must be enforced by the UNSC, the carnage must stop, a ceasefire (not explicitly ordered but indicated implicitly in ICJ orders) must occur, the hostages must be released, and unrestricted humanitarian aid must be allowed to enter Gaza.

The writer is an Australian Disaster Management and Post-Conflict Reconstruction and Rehabilitation Advisor who lives in Islamabad. She consults for Government and UN agencies and has previously worked at both ERRA and NDMA.
E-mail: [email protected]

1.       Application Instituting Proceedings to the International Court of Justice. Proceedings instituted by South Africa -v-Israel on December 29 2023 - Request for the indication of provisional measures. December 28, 2023. https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf
2.       International Court of Justice. Public sitting held on Thursday, January 11, 2024, at 10 a.m., at the Peace Palace in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa Case) https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf.
3.       International Court of Justice. Public sitting held on Friday, January 12, 2024, at 10 a.m., at the Peace Palace in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Israel's Defence). https://icj-cij.org/sites/default/files/case-related/192/192-20240112-ora-01-00-bi.pdf
4.       UN Office on Genocide Protection and the  Responsibility to Protection. https://www.un.org/en/genocideprevention/genocide.shtml
5.       International Committee of the Red Cross. International Humanitarian Law Treaties. Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948. https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948 
6.       United Nations. Convention on the Prevention and Punishment of the Crime of Genocide Convention on the Prevention and Punishment of the Crime of Genocide (PDF Brief). https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
7.       United Nations Regional Information Centre for Western Europe (UNRIC). UNRIC Library. Backgrounder: Genocide. https://unric.org/en/unric-library-backgrounder-genocide/
8.       International Committee of the Red Cross. International Humanitarian Law (IHL) Databases. Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948. https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948
9.       International Committee of the Red Cross. https://www.icrc.org/en/war-and-law%E2%80%8B
10.    International Committee of the Red Cross. Customary International Humanitarian Law. Customary International Humanitarian Law. https://ihl-databases.icrc.org/en/customary-ihl/v1
11.    International Court of Justice website. https://www.icj-cij.org/home
12.    International Criminal Court. Rome Statute. July 17, 1998. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf
13.    United Nations. Secretary-General Antonio Guterres's Letter to the President of the Security Council. December 6, 2023. https://www.un.org/en/situation-in-occupied-palestine-and-israel/sg-sc-article99-06-dec-2023
14.    Letter dated January 5, 2024, from the Secretary-General addressed to the President of the Security Council. https://www.un.org/unispal/wp-content/uploads/2024/01/N2400589.pdf
15.    International Court of Justice. Summary. https://icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf
16.    International Court of Justice. Orders. https://icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf