South Africa vs Israel

by | Feb 5, 2024

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About Frances Raday

Frances Raday, Professor of Law, previously an expert member of CEDAW, is Rapporteur-Chair of the UN Human Rights Council Working Group on Discrimination Against Women. She is Honorary Professor, University College London, and Doctor Honoris, University of Copenhagen. She is the author of academic books and articles on human rights, labour law and feminist legal theory. She has been legal counsel in precedent-setting human rights cases in Israel’s Supreme Court.

The essence of the crime of genocide is in its combination of intent to destroy, in whole or in part, a national, ethnical, racial or religious group” and actions taken to that end.

In ruling on provisional measures, in the case of South Africa versus Israel, the ICJ by a majority of 15:2 found Israel’s actions to be plausibly genocidal, emphasising that this is not a decision on the merits but on the low evidentiary bar of plausibility, which is itself an ill-defined standard. The operative directives of the Court were for Israel to fulfil its obligations under the Convention to prevent genocide and to report to the Court within one month. The Court did not accede to South Africa’s request to order an immediate cessation of the fighting by Israel.

The majority found the extent of killing of civilians, the destruction of homes, forcible displacement of a large proportion of the civilian population and the humanitarian crisis in Gaza to be plausible acts of genocide. The majority also found plausible intent in a number of reckless and provocative statements by some senior Israeli officials, including the President and the Minister of Defence, and cited the expression of concern by UN experts at the rise in dehumanizing and racist language directed at Palestinians. The two minority judges found the evidence of intent inadequate to show even plausibility. Nevertheless, the statements were open to an interpretation which is damning  and it seems clear that, in the absence of this kind of language (as emphasized in the concurring judgment of Judge Nolte, the German judge.) the majority would likely have found no case to answer.

The scenario described above has been described as Kafkaesque and indeed in some ways it is so. Israel’s conduct of the war in Gaza is to be currently examined under the stigma of plausible genocide (rather than under the clearly applicable rules of distinction and proportionality in International Humanitarian Law). While, in the meantime, Hamas has legal impunity as regards investigation of its aims to eliminate the state of Israel and of its conduct of the war.

The fact that Israel was provoked into this war by a Hamas attack launched on October 7th with commission of atrocities, torture, mutilation, rape and slaughter of babies, children, teenagers, women and men, killing 1,200, injuring 10,000 and taking 230 hostages of all ages, all accompanied by raining thousands of rockets at Israel’s civilian population, is rendered invisible. The fact that Hamas is the de facto government of Gaza and has devoted massive billions of international aid to creating an almost impregnable attack fortress, well supplied with food, water and fuel, hidden underneath civilian dwellings, hospitals, schools, mosques, while using the civilian population as a gigantic human shield and frankly stating that the welfare of Palestinian civilians is not their concern, is rendered invisible. The fact that Israel claims the right to self defence not against a rebel minority but against a heavily armed self-governing territory with a Hamas government supported by Iran, both of whom have declared their intention to eliminate Israel, is rendered invisible. The Court did recognize the background of the October 7th atrocities and required unconditional release of the hostages but this recognition carries no weight as Hamas is not a party to the proceedings.

Under the auspices of the ICJ, the crime of genocide is being examined with regard to only one of the parties: Israel. It is the low evidentiary bar of plausibility and the ergo omnes nature of the process which have prompted the ICJ to maintain an investigation into the conduct of only one of the two parties in armed conflict, under the heavy shadow of plausible genocide. It could be claimed that South Africa has used or abused this process by representing the interests of Hamas without disclosing the credible liability of Hamas under the Genocide Convention and possible complicity with it. The provisional determination of plausible genocide by Israel feeds into the increasing worldview that Israel is conducting a one-sided aggressive war against a passive and defenceless entity.

The Court’s adjudication of the Gaza war as a plausible Israeli genocide of Palestinians has succeeded in adding to the phenomenon of asymmetrical warfare, a new category of asymmetrical law-fare.


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