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Application instituting proceedings and request for the indication of provisional measures (South Africa v. Israel)

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aliasesSouth Africa v. Israel Application, Application instituting proceedings (South Africa v. Israel)

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Summary

South Africa’s Application to the International Court of Justice instituting proceedings against Israel under Article IX of the Genocide Convention, with a request for Provisional measures, alleging that Israel’s acts and omissions against Palestinians in Gaza since 7 October 2023 are genocidal in character — killing, causing serious bodily and mental harm, and deliberately inflicting conditions of life calculated to bring about physical destruction — committed with the specific intent (dolus specialis) to destroy Palestinians in Gaza as a substantial part of the Palestinian national, racial and ethnical group, together with failure to prevent genocide and to prevent and punish direct and public incitement to genocide (Application instituting proceedings and request for the indication of provisional measures (South Africa v. Israel), PDF p.1-3).

What the file is

The Application as filed, in English, 84 PDF pages, about 50,405 words, statistics stated to be up to date to 27 December 2023 (PDF p.10, footnote 56). The text copy is clean and paginated with PDF page markers; a map of the Gaza Strip appears at PDF p.13. The parts read so far carry 202 numbered footnotes, almost all giving the full citation and URL of the report, statement or judgment relied on. The exact day of filing in December 2023 is not stated in the pages read so far; see Open questions.

Section by section

  • Filing letter and I. Introduction, paras. 1-7 (PDF p.1-4). Filed under Statute Articles 36(1) and 40 and Rules Article 38, with a provisional-measures request under Statute Article 41. Para. 1 states the claim and condemns violations by all parties, including Hamas’s targeting of Israeli civilians and hostage-taking, holding that no armed attack, “even an attack involving atrocity crimes”, can justify breaches of the Genocide Convention. Para. 2 distinguishes genocide from other war crimes and crimes against humanity, places the acts in the context of “75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza”, and states the dolus specialis case. Para. 3 records the calls by the State of Palestine, UN experts and CERD to prevent genocide, and South Africa’s two-State objective on the borders existing on 4 June 1967. Para. 4 summarises the facts: statements by the President, Prime Minister and Minister of Defence said to express genocidal intent, intent also inferred from the operation’s nature and conduct, 1.9 million people (85%) evacuated, over 21,110 killed including over 7,729 children, over 7,780 missing, over 55,243 injured, over 355,000 homes damaged or destroyed. Para. 5 invokes jus cogens and erga omnes / erga omnes partes obligations. Para. 6 seeks an expedited hearing and, under Rules Article 74(4), a presidential call on Israel to halt the attacks pending the hearing. Para. 7 explains the unusually detailed factual account, drawn largely on UN chiefs and bodies, NGOs and eyewitnesses including Palestinian journalists, and the provisional-measures test that “at least some of the acts alleged” be “capable of falling within the provisions of the Convention”.
  • II. Jurisdiction of the Court, paras. 8-17 (PDF p.4-9). Both States are UN Members and Genocide Convention parties (Israel ratified 9 March 1950; South Africa acceded 10 December 1998); Article IX is quoted in full and neither State has reserved against it. Para. 12 lists the presidents and officials of dozens of States who have described Israel’s actions as genocide. Para. 13 lists South Africa’s own expressions from 30 October to 21 December 2023, ending with its Note Verbale to Israel’s Embassy; the footnotes cite DIRCO’s statement of 30 October 2023 and Minister Pandor’s National Assembly statement of 7 November 2023 (fn 33-34), DIRCO, DIRCO démarches the Ambassador of the State of Israel (10 November 2023, fn 35), The Presidency, President Ramaphosa Meets with the South African Jewish Board of Deputies (13 November 2023, fn 36), Kate Bartlett’s VOA News report of 17 November 2023 for the President’s Qatar statement (fn 37 — press reporting, not an official record), the Embassy in the Netherlands’ letter to the ICC Prosecutor (17 November 2023, fn 38), The Presidency’s opening remarks to the BRICS meeting (21 November 2023, fn 39), UN News’s report of the General Assembly session of 12 December 2023 (fn 40), and DIRCO’s Note Verbale itself (21 December 2023, fn 41). Para. 14 records that Israel did not reply directly to the Note Verbale and has publicly rejected the genocide accusation as “wholly unfounded as a matter of fact and law”, “morally repugnant” and “antisemitic”, and quotes the Prime Minister on 26 December 2023: “We are not stopping. We are continuing to fight, and we are deepening the fighting in the coming days, and this will be a long battle and it is not close to being over.” Paras. 15-17 establish the dispute and South Africa’s prima facie standing as any State party invoking erga omnes partes obligations.
  • III. The Facts, A. Introduction, paras. 18-20 (PDF p.9-12). Gaza (365 square kilometres, about 2.3 million people) subjected to one of the “heaviest conventional bombing campaigns” in modern warfare; an estimated 6,000 bombs per week by 29 October 2023. The Secretary-General’s Article 99 letter of 6 December 2023 is quoted at length, including “Nowhere is safe in Gaza.” Updated figures at para. 19 and UNRWA Commissioner-General Philippe Lazzarini’s letter of 7 December 2023 predicting “the collapse of the mandate [he] is expected to fulfil” at para. 20.
  • III.B.1. The Gaza Strip, paras. 21-30 (PDF p.12-21). Geography, governorates and crossings; 80% of the population refugees or descendants from the Nakba displacement of over 750,000 Palestinians; continuing occupation despite the 2005 “disengagement” because Israel controls airspace, waters, crossings, utilities and the population registry; the blockade since Hamas’s 2006 electoral victory, the calorie-based food-import regime of 2007-2010 and the later “dual use” system; 839 Palestinians recorded by WHO as having died waiting for medical permits between 2008 and 2021. The 2022 Special Rapporteur account of the blockade is quoted at length, including “the indefinite warehousing of an unwanted population of 2 million Palestinians”. Between 29 September 2000 and 7 October 2023 about 7,569 Palestinians including 1,699 children were killed, plus 214 including 46 children in the Great March of Return, where a Commission found snipers “intentionally shot” children, health workers, journalists and disabled demonstrators. Para. 30 then quotes at length earlier UN findings on previous Gaza operations: the 2001 inquiry commission, the 2008 Beit Hanoun mission, the 2009 Fact-Finding Mission (Goldstone report extracts, paras. 36-1929), the 2015 commissions of inquiry on the 2014 operation (including the “sterile combat zones” warning doctrine and the Shuja’iya and Khuza’a findings), and Special Rapporteur reports of 2020, 2021 and 2023, including the finding that Israel’s actions towards Gaza’s protected population “amount to collective punishment under international law”.
  • III. para. 31 (PDF p.24). The ICC Prosecutor’s 2019 “reasonable basis to believe” finding on war crimes in the 2014 Gaza hostilities, his October 2023 confirmation of an ongoing investigation covering current events in Gaza and the West Bank, and the distinction drawn between the ICC’s individual criminal responsibility and the Court’s State responsibility.
  • III.B.2. The West Bank (including East Jerusalem), paras. 32-39 (PDF p.24-28). 5,655 km2, 2.9 million Palestinians; Areas A, B and C under the Oslo Accords; 279 settlements including 14 in East Jerusalem on 750,000 dunums, settlers rising from about 247,000 to over 700,000 in 2023, settlements declared to have “no legal validity” by the Security Council; the regime described as apartheid, with a dual legal system; before 7 October 2023, 199 Palestinians killed and 9,000 injured in 2023, and since 7 October a further 295 killed including 77 children and 3,803 wounded, over 3,000 detained, administrative detention rising to 2070, 2,186 displaced by settler violence, demolitions and raids. Para. 39 states the West Bank actions are intrinsically connected to Gaza and at the very least important context.
  • III.B.3. The attacks in Israel of 7 October 2023, paras. 40-42 (PDF p.28-29). The attack (“Operation Al Aqsa Flood”) by Hamas’s military wing and Palestinian Islamic Jihad; South Africa’s condemnation of the targeting of civilians and hostage-taking; over 1,200 Israelis and foreign nationals killed including 36 children, about 240 hostages taken, 110 released in exchange for 240 Palestinians, 57 hostages reported killed in Israeli bombardments and three shot dead by Israeli soldiers; Israel’s vows to “crush and eliminate” Hamas and its invocation of self-defence.
  • III.C. Genocidal Acts, paras. 43-44 (PDF p.30-31). The overview lists the acts relied on, with the list’s numbering as printed giving two items numbered (4); the context of telecommunications blackouts, restricted fact-finding and media access, and journalists killed at a rate said to exceed that of any conflict in the past 100 years. UN chiefs and the ICRC call the situation a “crisis of humanity”, “apocalyptic”, and “the most dangerous place in the world to be a child”.
  • III.C.1. Killing Palestinians in Gaza, paras. 45-47 (PDF p.31-33). Over 21,110 killed, at least 70% believed women and children, according to the Palestinian Health Ministry via UN OCHA, with a footnote defending the Ministry’s figures against inflation claims and noting likely underreporting; about 7,780 missing; only one rescue vehicle reportedly operational in Gaza as of 8 December 2023; reports of summary executions including the reported killing of at least 11 male members of the Annan family in Gaza City; “dumb” bombs and 2,000 lb bombs with a lethal radius “of up to 360m” used in a densely populated area where about one in every 100 people has been killed; 1,779 families have lost multiple members; by 7 November 2023, 312 families had lost over 10 members each; medics’ acronym “WCNSF” (“wounded child, no surviving family”).

Key passages

  • “No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (PDF p.1)
  • “Gaza is now a different colour from space. It’s a different texture” (AP News, quoted PDF p.10)
  • “Nowhere is safe in Gaza.” (Secretary-General’s letter of 6 December 2023, quoted PDF p.10)
  • “In Gaza, the apparent strategy of Israel is the indefinite warehousing of an unwanted population of 2 million Palestinians, whom it has confined to a narrow strip of land through its comprehensive 15-year-old air, land and sea blockade” (Special Rapporteur Michael Lynk, 2022, quoted PDF p.16)
  • “the actions of Israel towards the protected population of Gaza amount to collective punishment under international law” (Special Rapporteur, quoted PDF p.23)
  • “WCNSF” — “wounded child, no surviving family” (medics in Gaza, via Save the Children, PDF p.33)

Evidence the work relies on

  • UN OCHA Flash Updates and Reported Impact reports, stated to collate locally collected data, for casualty, displacement, housing and hospital figures, most to 26-27 December 2023 (PDF p.10-11, footnotes 48, 56-67).
  • The Secretary-General’s Article 99 letter of 6 December 2023 and UNRWA Commissioner-General Philippe Lazzarini’s letter of 7 December 2023 (PDF p.10, p.12).
  • OHCHR and UN expert statements of 19 October, 16 November and 21 December 2023, and CERD’s early warning procedure (PDF p.2).
  • DIRCO statements, the 10 November 2023 démarche, President Cyril Ramaphosa’s statements of 13, 17 and 21 November 2023, and South Africa’s Note Verbale of 21 December 2023, for the dispute (PDF p.6-8, footnotes 33-41; the 17 November 2023 Qatar statement is cited there to Kate Bartlett, VOA News, 17 November 2023).
  • Israeli official statements as reported by Reuters, the Times of Israel and the Israeli Ministry of Foreign Affairs, for Israel’s rejection of the claim (PDF p.8).
  • UN commissions and fact-finding missions on Gaza from 2001, 2008, 2009, 2015 and 2019, and Special Rapporteur reports by Michael Lynk and Francesca Albanese, for the background sections (PDF p.16-24).
  • B’Tselem fatality data to 6 October 2023, PCBS population estimates, WHO, UNCTAD, ESCWA and World Bank reports for the blockade and West Bank background (PDF p.12-27).
  • ICC Prosecutor statements and preliminary-examination findings of 2019 and October-December 2023 (PDF p.24, p.27-28).
  • The Lancet correspondence of 26 November and 6 December 2023 on Gaza mortality reporting, cited in defence of the Health Ministry figures (PDF p.31).

Analysis

The Application is a party’s pleading, not a finding: every factual claim in it is South Africa’s allegation, attributed as such on the pages built from it. Its method in the parts read so far is to frame the post-7 October operation inside a long background (the Nakba, occupation, blockade and earlier Gaza operations as documented by UN bodies), to establish jurisdiction and a dispute from the parties’ own public statements before turning to the facts, and to build the casualty and destruction record almost entirely from UN OCHA collations of Palestinian Health Ministry data and from UN officials’ statements, with the reliability of the Health Ministry figures expressly defended in a footnote. Its stated provisional-measures standard is deliberately low: at least some alleged acts capable of falling within the Convention. Figures are given with their as-of dates, mostly 26-27 December 2023, and several internal differences between its own figures are recorded under Open questions rather than resolved.

People, organizations, places and events

South Africa, Israel, Gaza, West Bank, East Jerusalem, International Court of Justice, Genocide Convention, UNRWA, Hamas, Islamic Jihad, António Guterres, Philippe Lazzarini, Raphaël Lemkin, Great March of Return, Oslo Accords, South Africa v. Israel (Genocide Convention)

Concepts

Genocide, Apartheid, Self-determination, Erga omnes obligations, Provisional measures

How it relates to other sources

Open questions

  • The exact day of filing in December 2023 is not stated in PDF p.1-33; the Application’s statistics run to 27 December 2023 (PDF p.10).
  • Casualty totals differ by location and date as printed: para. 4 (PDF p.3) gives “over 7,780 others missing” alongside 7,729 children killed, para. 19 (PDF p.10-11) gives 4,700 women and children missing, and para. 45 (PDF p.31-32) gives an estimated 7,780 people missing including at least 4,700 women and children. All are recorded as printed.
  • Hospitals partially functional: 14 of 36 in the Secretary-General’s 6 December letter quoted at PDF p.10; 13 of 36 at PDF p.11 (OCHA Flash Update #78, 27 December 2023).
  • Gaza’s children as a share of population: “almost half” at PDF p.9 (para. 18); “over half” at PDF p.12 (para. 22). Both recorded as printed.
  • West Bank deaths in 2023: para. 36 gives 199 killed before 7 October and a further 295 since, and a stated total of 495; 199 + 295 = 494 (computed from the Application’s figures at PDF p.26-27).
  • Prime Minister’s “We are not stopping” statement: dated 26 December 2023 in the main text and 25 December 2023 in footnote 44 (PDF p.8).
  • Special Rapporteur report A/HRC/44/60: dated 15 July 2020 at footnote 100 (PDF p.16) and 22 December 2020 at footnote 123 (PDF p.23).
  • Footnote 119’s paragraph list for the 2009 Fact-Finding Mission includes “1888-1093” as printed (PDF p.19), evidently for 1888-1893; the original at PDF p.19 reads the same, so it is the filing’s own slip, not a text-copy OCR slip; recorded as printed, not corrected.
  • CERD’s Declaration on the Prevention of Genocide is cited in footnote 7 as “(CRD/C/66/1)” as printed (PDF p.2).
  • General Assembly Resolution ES-10/22 is printed “ESIO/22” in the main text at PDF p.10 — it is the General Assembly’s resolution, which took express “note” of the Secretary-General’s letter of 6 December 2023; footnote 54 on the same page gives “General Assembly resolution ES-10/22 … A/RES/ES-10/22”, and the form “ES10/22” appears elsewhere. The original at PDF p.10 reads “ESIO/22”, with the letters I and O in place of the digits 1 and 0, so the form is as printed in the filing, not a text-copy OCR slip. Likewise the schools at PDF p.32 are printed “UNWRA” in the original as well as in the text copy. Both recorded as printed.
  • Para. 43’s list of genocidal acts numbers two successive items “(4)” as printed (PDF p.30): deprivation of food and water, then deprivation of medical care.

Coverage

PDF p.1-33 of 84, read so far (part 1 of 3). Parts 2-3 (PDF p.34-84) remain: the rest of section C, genocidal intent, the legal framework, submissions and the provisional measures requested in full.

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