South Africa has presented genocide memorial against Israel to ICJ, meeting October 2024 deadline

epa11068895 Tal Becker (L), Legal Counselor of Israel's Foreign Ministry, and lawyer Malcolm Shaw (R), at the International Court of Justice (ICJ), prior to the hearing of the genocide case against Israel, brought by South Africa, in The Hauge, The Netherlands, 11 January 2024. According to the South Africans, Israel is currently committing genocidal acts against Palestinians in the Gaza Strip. Thousands of Israelis and Palestinians have been killed since the militant group Hamas launched an unprecedented attack on Israel from the Gaza Strip on 07 October, and the Israeli strikes on the Palestinian enclave which followed it. EPA-EFE/REMKO DE WAAL

By Victoria O’Regan

27 Oct 2024

The country filed the dossier to the International Court of Justice on 28 October, but this does not necessarily mean there will be a judgment soon. It could be years before there is a ruling.

South Africa filed its memorial, its substantive charge of genocide against Israel, to the International Court of Justice (ICJ) on 28 October 2024, the Presidency has announced.

A memorial is part of the written pleadings before the ICJ and, according to Article 49(1) of the Rules of the Court, it “shall contain a statement of the relevant facts, a statement of law, and the submissions” of the applicant.

International Relations and Cooperation Minister Ronald Lamola, in a recent interview with Daily Maverick, said South Africa’s memorial contained more evidence, in “forensic detail”, to show that “this is not just a plausible case of genocide, but indeed it is genocide”.

The Presidency’s announcement said, “The evidence will show that undergirding Israel’s genocidal acts is the special intent to commit genocide, a failure by Israel to prevent incitement to genocide, to prevent genocide itself and its failure to punish those inciting and committing acts of genocide.

“The evidence is detailed in over 750 pages of text, supported by exhibits and annexes of over 4,000 pages. South Africa’s Memorial is a reminder to the global community to remember the people of Palestine, to stand in solidarity with them and to stop the catastrophe. The devastation and suffering has been possible only because despite the ICJ and numerous UN bodies’ actions and interventions, Israel has failed to comply with its international obligations.”

After a memorial has been filed, the respondent (in this case Israel) will need to file a counter-memorial. A deadline of 28 July 2025 has been announced for this. A counter-memorial, according to the court’s rules, contains “an admission or denial of the facts stated in the memorial; any additional facts, if necessary; observations concerning the statement of law in the memorial; a statement of law in answer thereto; and the submissions”.

Speaking to Daily Maverick, the Southern Africa Litigation Centre’s international justice cluster lead, Dr Atilla Kisla, said filing the dossier did not necessarily mean there would be a judgment soon.

“It can still take years before the ICJ hands down a judgment in the matter. For instance, in the case of Ukraine v Russia, Ukraine filed its memorial on 1 July 2022 and the court only handed down its judgment on 2 February 2024. In other cases, the time between memorial and judgment is even longer,” said Kisla.

According to the Rules of the Court, after the closure of the written proceedings, the case is ready for hearing. With Israel only scheduled to respond in writing in July 2025, it will be a long time before oral arguments reach the court.

genocide ICJ From left: John Dugard, professor of international law, lawyer Tembeka Ngcukaitobi and lawyer Adila Hassim before the hearing of the genocide case against Israel brought by South Africa, at the International Court of Justice in The Hague, The Netherlands, on 12 January 2024. (Photo: EPA-EFE / Remko de Waal)

Humanitarian crisis

South Africa filed its 84-page application at the ICJ – the principal judicial organ of the United Nations (UN) – on 29 December 2023, accusing Israel of genocide in its war in Gaza and seeking to halt its military assault on the enclave, pending the court’s final decision on whether Israel is perpetrating genocide.

On 26 January, the court ordered Israel to prevent genocide, to prevent and punish incitement to genocide and to increase humanitarian aid to the Gaza Strip. But it stopped short of ordering a ceasefire, which was the maximum provisional measure Pretoria had called for.

Read more: Israel-Palestine War

Read more: Middle East crisis

It also called on Hamas to release its remaining hostages whom it captured in its attack on Israel on 7 October 2023. A total of 97 hostages remain unaccounted for, the BBC reported this month.

Ten months on, and myriad international humanitarian laws have failed to arrest the impunity of Israel’s government and defence forces in its year-long military incursion in the Gaza Strip.

At the time of writing, the bombs that continue to rain on the Gaza Strip have killed at least 42,700 people and wounded more than 100,000 since 7 October last year, according to the Gazan health ministry.

In a report on 22 October, the UN Conference on Trade and Development warned that, if the war were to end tomorrow, it could take 350 years for Gaza’s broken economy to return to prewar levels.

About 1.8 million people are experiencing high levels of acute food insecurity, and nearly 133,000 are facing “catastrophic food insecurity”, according to the Integrated Food Security Phase Classification.

The situation in Northern Gaza is particularly dire, after the Israel Defense Forces launched an operation in the north of the enclave on 6 October. The UN Palestinian aid organisation UNRWA said Israeli authorities were preventing humanitarian missions from reaching areas in the north with critical supplies, including food, water and medicine.

Tal Becker (left), the legal counsellor for Israel’s Foreign Ministry, and lawyer Malcolm Shaw at the International Court of Justice before the hearing of the genocide case against Israel, brought by South Africa, on 11 January 2024. (Photo: EPA-EFE / Remko de Waal)

Intervening countries

On 8 October, Bolivia filed a declaration to intervene in South Africa’s case. The South American nation is the latest in a growing list of countries that have applied to the court to intervene in the proceedings.

Other countries, like Ireland and Egypt, have announced their intentions to intervene, but their formal declarations of intervention have yet to be filed with the ICJ. In January, Germany said it would seek to intervene in South Africa’s case on Israel’s behalf.

Two forms of intervention are allowed in terms of the Statute of the Court. Under Article 62 of the Statute, should a state have “an interest of a legal nature which may be affected by the decision in the case” it may file a request to the court to intervene. Both Nicaragua and Palestine have requested permission to intervene under Article 62 of the Statute in South Africa’s case against Israel.

Under Article 63 of the Statute, a state has the right to intervene in proceedings when it is signatory to a convention (in this case the 1948 Genocide Convention) that will be interpreted in the court’s ruling.

However, the court has the right to declare the intervention inadmissible. In Ukraine vs Russia, for example, 33 states filed statements of intervention – of which 32 were deemed admissible by the court.

Colombia, Libya, Mexico and Spain are among the countries that have filed declarations of intervention under Article 63 in South Africa’s case against Israel.

It’s still possible for more countries to intervene in the case, but declarations of intervention and applications for permission to intervene in proceedings need to be filed before the deadline for Israel’s counter-memorial in July 2025. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.

This story was updated on 28 October after South Africa filed its memorial.

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