South Africa's Genocide Case Against Israel

South Africa brought its application during Israel’s military response to the Hamas attacks in southern Israel on October 7, 2023, alleging that Israeli acts and omissions in Gaza violated the Genocide Convention.[5] Israel’s response emphasized the attacks, the continuing threat from Hamas, and the hostages taken that day as essential context for its military campaign.[6] The parties subsequently presented sharply different accounts of the campaign’s objectives, its effects on civilians, the significance of statements by Israeli officials, and the provision of humanitarian assistance.[2][6]

The Genocide Convention defines genocide through specified acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such.[7] Both South Africa and Israel are parties to the Convention, whose Article IX provides for disputes between states parties concerning their Convention obligations to be submitted to the ICJ.[1] South Africa invoked Article IX together with Article 36(1) of the ICJ Statute as the jurisdictional basis for its application.[3] The resulting proceeding concerns the international obligations of states rather than the criminal prosecution of Israeli officials or citizens.[1]

South Africa alleged that Israel had committed prohibited acts with the specific intent to destroy Palestinians in Gaza as part of the broader Palestinian protected group.[2] Its allegations included killing, serious bodily or mental harm, the imposition of destructive conditions of life, forcible displacement, and failures to prevent or punish genocide and related prohibited acts.[2] South Africa also alleged that Israel had failed to prevent and punish direct and public incitement to genocide, including statements by government members and others.[1] These were the applicant’s allegations submitted for adjudication, rather than conclusions already reached by the Court.[2]

The application sought a finding that Israel had breached the Convention, cessation of the alleged violations, and redress.[1] South Africa also requested provisional measures, principally an order suspending Israeli military operations in and against Gaza while the case proceeded.[2] Its additional requests concerned prevention of prohibited acts, humanitarian access, preservation of evidence, and reporting to the Court.[2] These requests placed the immediate protection of claimed Convention rights before the Court separately from the eventual adjudication of responsibility for the alleged violations.[2]

Israel rejected the allegation of genocidal intent and argued that its objectives were self-defense, ending threats to its population, and rescuing hostages.[2] It maintained that civilian-harm mitigation and humanitarian-aid facilitation were inconsistent with the intent alleged by South Africa.[2] Israel also disputed the Court’s jurisdiction and asked it to reject the provisional-measures request and remove the case from its General List.[2] Its position distinguished operations against Hamas from an intention to destroy Palestinians as a group.[6]

South Africa’s application included its own public statements and diplomatic communications concerning the conflict.[8] A December 21, 2023 note verbale recorded its declaration that “South Africa unequivocally condemns the targeting of Israeli and foreign national civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October 2023.”[8] At the subsequent January hearing, South African representatives again condemned the killing and hostage-taking while arguing that those acts did not justify Israel’s response.[9]

South Africa instituted proceedings on December 29, 2023, submitting its application and a request for provisional measures.[3] Public hearings on the interim request took place on January 11 and 12, 2024, with South Africa presenting first and Israel responding on the second day.[1] The application was heard by a 17-member panel; Israel appointed former Israeli Supreme Court president Aharon Barak as its ad hoc judge, and British lawyer Malcolm Shaw was among Israel’s legal representatives.[10] The hearings concerned preliminary protection while the case continued, not a final determination of the genocide allegations.[1]

At the January 11 hearing, South African representatives relied on the scale of destruction, civilian deaths, displacement, deprivation, and statements by Israeli officials to support their allegations of genocidal conduct and intent.[9] Their legal presentation also connected the campaign to what they characterized as a longer history of oppression of Palestinians, invoking an ongoing Nakba and Israel’s history since 1948.[11] Those historical characterizations formed part of South Africa’s argument rather than findings by the Court.[11]

Israel’s January 12 response rejected South Africa’s presentation and argued that the campaign was directed against Hamas rather than Palestinians as a group.[6] Foreign Ministry legal adviser Tal Becker argued that Israel’s objective was to protect its population, not destroy Palestinians, and that the application presented a distorted account of the conflict.[12] He emphasized the October 7 attack, continuing threats, and hostages, while describing Israeli efforts to minimize civilian harm and provide humanitarian assistance.[12]

Israel’s representatives cited civilian warnings and aid measures as evidence against genocidal intent and argued that South Africa had omitted or discounted the circumstances of the Hamas-led attacks.[6] Israel also maintained that Hamas operated among civilians and used them as human shields, while asserting that Israeli forces distinguished between Hamas terrorists and civilians and acted under international law.[13] In responding to South Africa’s reliance on public statements, Israel argued that cited remarks had been taken out of context and did not represent the decision-makers directing the war.[9]

On January 26, 2024, the Court issued its first provisional-measures order.[2] It concluded that it had prima facie jurisdiction under Article IX of the Convention and that South Africa had prima facie standing to bring the dispute.[2] The Court identified as plausible the rights of Palestinians in Gaza to protection from genocide and related prohibited acts, together with South Africa’s right to seek Israel’s compliance with its Convention obligations.[2] It expressly stated that its preliminary decision did not prejudge jurisdiction on the merits, admissibility, or the merits themselves.[2]

The Court’s humanitarian assessment described Gaza’s civilian population as extremely vulnerable amid deaths, injuries, widespread destruction, and displacement.[2] It noted shortages of basic food, potable water, electricity, essential medicines, and heating.[2] Its reasoning also included an estimate that 15 percent of women giving birth in Gaza were likely to experience complications, with maternal and newborn mortality expected to rise because medical care was limited.[2] The Court concluded that further deterioration created a real and imminent risk of irreparable prejudice to the plausible rights before a final decision could be delivered.[2]

In considering the circumstances, the Court referred to statements by UN personnel, including the UN Secretary-General and the head of UNRWA.[7] It also referred to dehumanizing language associated with statements by Defense Minister Yoav Gallant, President Isaac Herzog, and Minister Israel Katz.[7] These matters formed part of the reasoning supporting interim protection rather than a final adjudication of the allegations against Israel.[2]

The January order required Israel to take measures within its power to prevent acts covered by Article II of the Convention and immediately ensure that its military did not commit such acts.[2] It also required Israel to prevent and punish direct and public incitement to genocide, enable urgently needed basic services and humanitarian assistance, and preserve evidence relating to alleged acts under Articles II and III.[2] Israel was directed to submit a report on implementation within one month.[2] The Court did not grant South Africa’s principal request for a general suspension of Israeli military operations in Gaza.[2]

Most of the January measures passed by 15 votes to 2, while the measure concerning prevention and punishment of direct and public incitement passed by 16 votes to 1.[7] The Court stated that provisional-measures orders under Article 41 of its Statute are binding and create international legal obligations for the parties addressed.[2] It also emphasized that all parties to the conflict were bound by international humanitarian law and called for the immediate and unconditional release of hostages abducted in Israel on October 7 and held by Hamas and other armed groups.[2]

South Africa returned to the Court in February with concerns about a prospective Israeli operation in Rafah.[3] On February 16, the Court declined to indicate additional measures preventing such an operation, stating that the January measures applied throughout Gaza, including Rafah.[14] It called for their immediate and effective implementation but concluded that additional measures were not required at that point.[14] The existing obligations therefore remained applicable without a new February order adding to them.[3]

On March 6, South Africa requested further or modified provisional measures, citing worsening conditions and famine.[3] Its later submission to the UN Security Council described the reason for returning to the Court as a continuing humanitarian catastrophe, particularly what South Africa alleged was deliberate starvation.[15] Israel submitted observations on March 15.[16] On March 28, the Court supplemented its January measures in an order referring to deteriorating living conditions and the spread of famine and starvation.[16]

The March order required Israel, without delay and in cooperation with the United Nations, to ensure the unhindered provision at scale of urgently needed humanitarian assistance and basic services throughout Gaza.[16] The specified needs included food, water, electricity, fuel, shelter, clothing, sanitation supplies, medical supplies, and medical care.[17] The Court called for increasing the capacity and number of land crossings and keeping them open for as long as necessary.[16] It also directed Israel to ensure that its military did not impede urgently needed assistance and required another implementation report within one month.[16]

The March proceedings again concerned urgent protection before final adjudication, including the risk of irreparable prejudice to the plausible rights asserted by South Africa.[15] The Court did not order an immediate suspension of hostilities or determine that Israel had violated its legal obligations in that decision.[17] Its additional directions focused on securing assistance and preventing military conduct that would violate the Convention rights under consideration.[15]

A further South African request in May focused on Rafah, where South Africa argued that Israel’s military incursion and displacement orders endangered civilians and humanitarian access.[3] Israel disputed that account, describing its operations as limited and localized and stating that it had taken measures to facilitate evacuations and aid.[3] The Court recorded both positions and noted that nearly 800,000 people had been displaced from Rafah by May 18.[3] It concluded that the offensive and resulting large-scale displacement constituted a change in the situation relevant to provisional measures.[3]

On May 24, the Court reaffirmed its previous measures and ordered Israel to halt its military offensive and any other action in Rafah that might inflict on Palestinians in Gaza conditions of life capable of bringing about their physical destruction, in whole or in part.[3] It also required Israel to keep the Rafah crossing open for the large-scale provision of urgently needed assistance and ensure unimpeded access to Gaza for relevant UN-mandated investigative bodies examining genocide allegations.[3] Israel was directed to report on implementation within one month.[3] The measures passed by 13 votes to 2, with Barak among the dissenters.[3][18]

The May order did not decide whether Israel had committed genocide and expressly made no finding about Israel’s compliance with the January and March orders.[3] Israel’s National Security Council and Foreign Ministry responded that Israel would not conduct actions in Rafah capable of bringing about the physical destruction of the Palestinian civilian population.[4] The order did not require a full Israeli withdrawal from Gaza or restrict military actions elsewhere in the Strip.[4]

The litigation continued beyond the 2024 provisional-measures proceedings into written submissions and requests by other states and entities to intervene.[4] By July 17, 2026, the “State of Palestine” and several states had requested to intervene, while Nicaragua and Colombia had withdrawn earlier requests.[4] These procedural moves did not constitute a final judgment endorsing or rejecting South Africa’s allegations.[4]

South Africa filed its memorial on October 28, 2024.[19] Reporting on the filing described allegations concerning destruction, humanitarian access, starvation, and displacement.[19] These matters formed part of South Africa’s written case under the Convention, not findings issued by the Court.[19] The memorial followed the earlier application and interim requests with the fuller written presentation of South Africa’s allegations.[19][19]

South Africa also circulated material outside the Court’s pleading process through the UN Security Council.[20] In February 2025, it transmitted a 227-page public dossier of openly available evidence concerning what it called Israeli acts of genocide against Palestinians in Gaza.[20] The dossier’s evidence was current to February 4, 2025; its accompanying letter was dated February 27, and the document was distributed on February 28.[20] The description of its contents recorded South Africa’s characterization of the evidence rather than a judicial conclusion establishing those allegations.[20]

By May 2026, reporting listed Turkey and several other states as participating in or intervening in the case, including Spain, the Netherlands, Ireland, Colombia, Mexico, Chile, Bolivia, Cuba, Belize, Brazil, Namibia, and the Comoros.[21] These reports concerned procedural participation while the litigation remained in its written phase, not a final judgment endorsing the applicant’s allegations.[21] U.S. officials publicly described South Africa’s accusation as meritless.[1]

Israel submitted its counter-memorial in March 2026, rejecting South Africa’s allegations, contesting jurisdiction, and asking for dismissal.[22] Its stated objectives remained defeating Hamas and returning hostages, while its submission defended Israeli efforts to reduce civilian harm and facilitate aid.[22] A March 18 report described the response as exceeding 1,300 pages, accompanied by more than 1,000 supporting documents and exhibits.[23] That account also recorded Israel’s argument that Hamas bore responsibility for its conduct among civilians.[23]

A May 21, 2026 procedural order established a further round of written pleadings, setting November 22, 2027 for South Africa’s reply and May 22, 2029 for Israel’s rejoinder.[4] South Africa sought the additional round because of the case’s complexity, the volume of Israel’s counter-memorial, and Israel’s objections to jurisdiction and admissibility.[4] Israel argued that another round was unnecessary but maintained that it should receive equal time if one were permitted.[4]

As of November 13, 2026, the proceedings had not produced a final merits judgment.[4] The timetable extended the written phase into 2029, but the pleading deadlines were not a Court-announced date for final judgment.[4][4] The case therefore remained a pending adjudication of South Africa’s allegations and Israel’s jurisdictional and substantive defenses, alongside the provisional measures already indicated.[4]

The January decision distinguished protection of plausible Convention rights from adjudication of whether Israel had committed genocide.[2] At the provisional-measures stage, the Court was not required to establish breaches of the Convention but to determine whether circumstances required interim protection of rights under it.[7] The order identified the rights of Palestinians in Gaza to protection from genocide and related prohibited acts and South Africa’s right to seek compliance with the Convention.[2] It did not resolve the separate questions of genocidal acts, specific intent, and ultimate state responsibility raised by the application.[2]

Former ICJ president Joan Donoghue explained on April 26, 2024 that the January order concerned the plausibility of the rights asserted, rather than a finding that South Africa’s genocide allegation itself was plausible.[4] Her explanation distinguished Palestinians’ right to protection from genocide and South Africa’s right to bring its claim from a determination that genocide was occurring.[5] That distinction is central to interpreting the interim decision without treating it as a merits judgment.[2][5]

The Court’s provisional measures nevertheless carried legal obligations independently of the eventual outcome.[2] Its January order expressly identified measures under Article 41 of the Statute as binding on the parties addressed.[2] The ICJ has no enforcement mechanism, creating a distinction between the legal force of its directions and its institutional ability to secure implementation.[24] The orders combined prevention of prohibited acts and incitement with humanitarian access, preservation of evidence, and reporting requirements.[2][3]

The most substantial interpretive dispute concerned the May Rafah order’s scope: its operative language connected the required halt to action capable of inflicting conditions of life that could bring about the Palestinian group’s physical destruction, in whole or in part.[3] Barak read the direction as requiring a halt only to the extent necessary to comply with the Genocide Convention, while other characterizations treated it as requiring the Rafah offensive to stop more broadly.[17] Israel maintained that its operations did not risk destruction of the Palestinian civilian population.[24] The competing readings concerned an interim restriction, not an adjudication of the underlying genocide allegation.[3]

Across the proceedings, the applicant’s claims, Israel’s defenses, and the Court’s decisions remained distinct legal categories.[2][3] South Africa sought findings of Convention violations and urgent restrictions on Israeli conduct, while Israel denied genocidal intent and defended the campaign as action against Hamas undertaken to protect its population and recover hostages.[2][22] The Court’s orders addressed interim protection while leaving jurisdictional, admissibility, and merits questions for further proceedings.[2] The continuing written timetable preserved those questions for subsequent adjudication rather than settling them through the provisional-measures process.[4][4]