South Africa’s Genocide Case Against Israel

1. Introduction

The genocide case against Israel brought by South Africa before the International Court of Justice is one of the most important legal proceedings under the Genocide Convention since Bosnia and Herzegovina v Serbia and Montenegro and The Gambia v Myanmar. The official case, titled Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), was filed on 29 December 2023. South Africa relies on Article IX of the Genocide Convention, which gives the Court jurisdiction over disputes between States parties concerning the interpretation, application, or fulfilment of the Convention (Genocide Convention, 1948; International Court of Justice, 2024a).

The case is not a general lawsuit about the legality of the Gaza war. It is a narrower claim about State responsibility under the Genocide Convention. That distinction matters because genocide is not established by showing mass civilian suffering, unlawful attacks, forced displacement, starvation, or destruction of infrastructure alone. Those facts may be relevant, and in some cases may prove serious violations of international humanitarian law. Yet genocide requires a further element: the intent to destroy a protected group, in whole or in part, as such (Schabas, 2009; Cassese and Gaeta, 2013).

South Africa argues that Palestinians are a protected group under the Convention and that Palestinians in Gaza form a substantial part of that group. Its case relies on alleged killings, serious bodily and mental harm, conditions of life capable of physical destruction, restrictions on humanitarian aid, mass displacement, damage to medical services, and statements by Israeli officials. The legal theory is that these facts, read as a pattern, support an inference of genocidal acts and genocidal intent.

Israel rejects that characterisation. Its central answer is that its military operations are directed against Hamas and other armed groups, not against Palestinians as a protected group. Israel also argues that South Africa misreads the factual record, treats civilian harm as proof of genocide, and relies on statements that are selective, disputed, or disconnected from official military policy. This defence directly targets the most difficult part of South Africa’s case: proof of special intent.

The ICJ’s provisional measures orders must be understood carefully. The Court issued major orders on 26 January 2024, 28 March 2024, and 24 May 2024. These orders are binding, but they are not final findings that Israel has committed genocide. At the provisional-measures stage, the Court examines prima facie jurisdiction, plausibility of rights, urgency, risk of irreparable prejudice, and the connection between the rights claimed and the measures requested. That test is much lower than the evidentiary burden required at the merits stage (International Court of Justice, 2024b; International Court of Justice, 2024c; International Court of Justice, 2024d).

The merits phase is where the case becomes legally harder. South Africa must prove the elements of responsibility under the Genocide Convention: the existence of protected rights, prohibited acts, attribution to Israel, breach of Convention obligations, and genocidal intent. Israel may defeat the claim if the Court accepts that the alleged conduct, even if unlawful under other rules of international law, can reasonably be explained as military action against Hamas rather than an intent to destroy Palestinians in Gaza as such.

The central legal question is not only how difficult the humanitarian situation in Gaza has been. The sharper question is whether the alleged pattern of conduct can satisfy the Genocide Convention’s specific requirements. This article analyses South Africa’s genocide case against Israel through that doctrinal lens. It explains the Convention framework, South Africa’s standing, the protected-group issue, the alleged genocidal acts, Israel’s defence, the test for genocidal intent, the provisional-measures orders, and the wider consequences for international law.

2. The genocide case against Israel before the ICJ

2.1 The official case and parties

The genocide case against Israel is pending before the International Court of Justice, the principal judicial organ of the United Nations. The official title is Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel). South Africa is the applicant State. Israel is the respondent State (International Court of Justice, 2023a).

This must be distinguished clearly from proceedings before the International Criminal Court. The ICJ decides legal disputes between States. It does not try individuals, issue arrest warrants, or determine personal criminal guilt. The ICC deals with individual criminal responsibility under the Rome Statute. The ICJ case is about Israel’s alleged State responsibility under the Genocide Convention, not the criminal liability of particular political or military leaders (Statute of the International Court of Justice, 1945; Rome Statute, 1998).

That distinction controls the whole article. If the reader confuses the ICJ with the ICC, the legal analysis becomes distorted. The ICJ asks whether a State has breached international obligations. The ICC asks whether named individuals have committed crimes within its jurisdiction. Both may concern the same conflict, but they do not apply the same procedure, remedies, or legal consequences.

2.2 The application of 29 December 2023

South Africa filed its application on 29 December 2023. The application relied on Article IX of the Genocide Convention, read with Article 36(1) of the ICJ Statute. Article IX is the Convention’s jurisdictional clause. It allows disputes between Contracting Parties concerning the interpretation, application, or fulfilment of the Convention to be submitted to the ICJ, including disputes about State responsibility for genocide and related acts under Article III (Genocide Convention, 1948; International Court of Justice, 2023a).

South Africa alleged that Israel had breached, and continued to breach, obligations under the Convention in relation to Palestinians in Gaza. The claim was not framed as a general lawsuit about the Israeli-Palestinian conflict. It was framed through specific Convention duties: the duty not to commit genocide, the duty to prevent genocide, the duty to punish genocide, the duty to prevent and punish direct and public incitement, and the duty not to be complicit in prohibited acts.

This framing matters because Article IX does not give the Court unlimited jurisdiction over every legal question raised by the Gaza war. Issues such as self-defence, occupation, siege warfare, starvation, forced displacement, civilian targeting, arms transfers, and humanitarian access may become relevant. Yet they enter the case only when they help the Court decide whether the Genocide Convention has been breached.

2.3 The provisional-measures phase

South Africa requested provisional measures together with its application. Provisional measures are urgent protective orders issued before a final judgment. Their purpose is to preserve rights that may later be confirmed on the merits. They do not require the applicant to prove the whole case at the start of proceedings.

At this stage, the Court examines a different set of questions. It asks whether it has prima facie jurisdiction, whether the rights claimed are plausible, whether there is urgency, whether irreparable prejudice may occur, and whether the requested measures are linked to the rights asserted. This is not the same as deciding whether genocide has occurred (International Court of Justice, 2024a).

The Court issued its first provisional-measures order on 26 January 2024. It found that at least some of the rights claimed by South Africa under the Genocide Convention were plausible. It ordered Israel to take all measures within its power to prevent acts falling within Article II of the Convention, ensure that its military did not commit such acts, prevent and punish direct and public incitement to genocide, enable humanitarian assistance, preserve evidence, and report to the Court on implementation (International Court of Justice, 2024a).

The January order was legally significant, but it was not a final finding of genocide. The Court did not decide whether the alleged acts had occurred as pleaded, whether they were attributable to Israel, or whether they were committed with genocidal intent. It acted at the emergency stage to protect rights claimed under the Convention while the case continued.

South Africa later sought additional or modified measures. On 28 March 2024, the Court issued a further order after considering the worsening humanitarian situation. It required Israel to take necessary and effective measures to ensure, without delay, the unhindered provision of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene, sanitation, medical supplies, and medical care (International Court of Justice, 2024b).

The March order strengthened the humanitarian dimension of the case. It showed that the Court was prepared to revise or supplement provisional measures when circumstances changed. It also linked humanitarian access to the protection of plausible rights under the Genocide Convention. Yet the case still remained at the interim stage.

The third major provisional-measures order came on 24 May 2024, after South Africa raised the situation in Rafah. The Court reaffirmed earlier measures and ordered Israel to halt its military offensive, and any other action in the Rafah Governorate, which may inflict conditions of life on Palestinians in Gaza capable of bringing about their physical destruction in whole or in part. It also ordered Israel to keep the Rafah crossing open for humanitarian assistance at scale, allow access for United Nations-mandated investigative bodies, and report on compliance (International Court of Justice, 2024c).

The Rafah order became especially important because of its wording. Some commentators read it as a broad order to halt the Rafah offensive. Others emphasised the qualifying language connecting the order to actions that may inflict destructive conditions of life. A careful article should later analyse that debate. For the procedural chapter, the essential point is that the Court issued stronger interim protection but still did not decide the merits.

2.4 The merits phase

The case has now moved beyond emergency proceedings into the merits phase. This is where the legal burden becomes much heavier. South Africa must prove jurisdiction, admissibility, the relevant facts, attribution to Israel, breach of Convention obligations, and genocidal intent. It is not enough to show that Gaza suffered catastrophic civilian harm. The Court must decide whether the facts satisfy the specific legal requirements of the Genocide Convention.

On 5 April 2024, the Court fixed the written timetable. South Africa’s Memorial was due on 28 October 2024. Israel’s Counter-Memorial was initially due on 28 July 2025. South Africa filed its Memorial on 28 October 2024. Israel later obtained extensions of time for its Counter-Memorial (International Court of Justice, 2024d; International Court of Justice, 2025a).

Israel’s Counter-Memorial is procedurally important because it gives Israel the opportunity to answer South Africa’s case in full. Israel may contest jurisdiction, admissibility, facts, legal characterisation, attribution, intent, and remedies. It may also present evidence that its military operations were directed against Hamas, not against Palestinians as a protected group.

Written pleadings in ICJ cases are not always immediately public. This creates a limit for outside legal analysis. Public commentary can rely on applications, orders, public hearings, press releases, official statements, and available United Nations materials. It cannot claim to know the full evidentiary record if the pleadings and annexes remain unavailable.

Third-State interventions also form part of the procedural landscape. Several States have filed declarations of intervention under Article 63 of the ICJ Statute. Article 63 allows a State party to a treaty to intervene when the interpretation of that treaty is in question. These States do not become applicants or respondents. Their role is to address the interpretation of the Genocide Convention, which may affect all States parties (Statute of the International Court of Justice, 1945; International Court of Justice, 2026).

At the time of writing, the legally accurate position is clear. South Africa has brought a serious Convention-based claim. Israel denies the allegation and contests the legal and factual basis of the case. The ICJ has issued binding provisional measures, but it has not made a final finding that genocide has occurred. That final question belongs to the merits stage.

3. The Convention as the governing law

The legal foundation of the genocide case against Israel is the Convention on the Prevention and Punishment of the Crime of Genocide. This point controls the structure of the whole analysis. The case is not governed by general moral judgment, political condemnation, or the full body of law applicable to the Gaza conflict. It is governed by the specific obligations created by the Genocide Convention.

That does not mean international humanitarian law, human rights law, or the law on the use of force are irrelevant. Facts connected to bombing, displacement, siege conditions, humanitarian access, starvation, medical collapse, and civilian casualties may help the Court assess the Convention claim. Yet those bodies of law do not replace the Convention’s legal test. The ICJ must decide whether Israel has breached obligations under the Genocide Convention, not whether every aspect of the war is lawful under every branch of international law.

The Convention was adopted in 1948 after the Second World War and entered into force in 1951. It defines genocide as an international crime and creates duties for States to prevent and punish it. The ICJ has repeatedly treated the Convention as an instrument with a humanitarian and civilising purpose, directed at protecting human groups and the international legal order itself (Genocide Convention, 1948; International Court of Justice, 1951; Schabas, 2009).

The Convention has two features that matter directly in this case. First, it imposes obligations on States, not only criminal liability on individuals. Second, it requires proof of a very specific wrong: the destruction, in whole or in part, of a protected group as such. The result is a legal framework that is narrow but grave. It does not cover every atrocity, but when it applies, the consequences are among the most serious in international law.

3.1 Article I and the duty to prevent

Article I provides that genocide, whether committed in time of peace or in time of war, is a crime under international law which States undertake to prevent and punish. This wording is central. It confirms that the Convention applies during armed conflict. A State cannot avoid Convention obligations by arguing that military operations are taking place or that the situation is governed primarily by international humanitarian law (Genocide Convention, 1948).

The duty to prevent is not limited to situations where genocide has already been judicially established. If the obligation only arose after a final judgment, it would often arrive too late. The ICJ made this clear in Bosnia and Herzegovina v Serbia and Montenegro, where it held that the duty to prevent arises when a State learns, or should normally have learned, of the existence of a serious risk that genocide will be committed (International Court of Justice, 2007).

This is especially important for South Africa’s claim. South Africa does not argue only that genocide has already occurred. It also argues that Israel must be restrained because Palestinians in Gaza face a serious risk of genocide. That prevention argument explains why provisional measures became so central. The purpose of provisional measures is to protect rights before final judgment, especially when delay may cause irreparable harm.

The duty to prevent is an obligation of conduct, not an obligation to guarantee a particular result. A State is not automatically responsible every time genocide occurs somewhere in the world. Responsibility depends on what the State knew or should have known, its capacity to influence the relevant actors, and the measures reasonably available to it. The standard is due diligence, assessed in light of the gravity of the risk (International Court of Justice, 2007; Crawford, 2013).

In this case, Article I creates two levels of analysis. The first concerns Israel’s own conduct: whether Israel has itself breached duties under the Convention. The second concerns prevention more broadly: whether the Court should order steps designed to prevent acts that may fall within Article II. The January, March, and May 2024 provisional-measures orders belong mainly to this preventive logic (International Court of Justice, 2024a; International Court of Justice, 2024b; International Court of Justice, 2024c).

Article I also explains why third States have a legal interest in the case. The prevention of genocide is not a private bilateral matter between South Africa and Israel. The Convention creates obligations of common concern. The ICJ recognised this collective character in its advisory and contentious case law, including Reservations to the Genocide Convention and The Gambia v Myanmar (International Court of Justice, 1951; International Court of Justice, 2022).

3.2 Article II and the crime of genocide

Article II contains the legal definition of genocide. It protects national, ethnic, racial, and religious groups. It does not protect every political, social, economic, or cultural group as such. South Africa’s case depends on the argument that Palestinians fall within one or more protected categories and that Palestinians in Gaza form a legally significant part of that protected group (Genocide Convention, 1948).

The first prohibited act is killing members of the group. In the Gaza case, this is linked to allegations of large-scale civilian deaths. Yet killing alone does not prove genocide. The act must be committed with the specific intent to destroy the protected group, in whole or in part. Civilian deaths may also result from unlawful attacks, disproportionate force, indiscriminate warfare, or other violations of international humanitarian law. The legal classification depends on intent as well as conduct (Schabas, 2009; Cassese and Gaeta, 2013).

The second prohibited act is causing serious bodily or mental harm to members of the group. This may include severe physical injury, trauma, torture, sexual violence, inhuman treatment, and forms of mental suffering recognised in genocide jurisprudence. The ICTR’s judgment in Akayesu is especially important because it interpreted serious bodily and mental harm broadly, while still linking the harm to genocidal intent (International Criminal Tribunal for Rwanda, 1998).

The third prohibited act is deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. This is one of the most important parts of Article II for South Africa’s case. It may cover deprivation of food, water, medicine, shelter, sanitation, and other essentials required for physical survival. It may also include conditions created through siege, forced displacement, or destruction of life-sustaining infrastructure, if those conditions are deliberately imposed and calculated to destroy the group physically (Genocide Convention, 1948; Schabas, 2009).

The phrase “calculated to bring about” is legally demanding. It does not simply mean that conditions are harsh, dangerous, or inhumane. It points to conditions imposed with a destructive purpose. In an armed conflict, a court must distinguish between severe civilian suffering caused by military operations and conditions imposed with the intent to destroy the protected group as such. That distinction is difficult, but it is central to the Convention.

The fourth prohibited act is imposing measures intended to prevent births within the group. This may include forced sterilisation, sexual violence directed at reproductive capacity, separation of men and women with reproductive consequences, or other measures aimed at the biological destruction of the group. This element is less central to the public framing of South Africa’s case, but it remains part of the Convention’s definition.

The fifth prohibited act is forcibly transferring children of the group to another group. This reflects the Convention’s concern with the biological and social continuity of protected groups. It was designed to capture conduct that destroys a group by removing its children and absorbing them elsewhere. In the Gaza case, this provision should be addressed only if the evidence supports a legally serious argument. Weak or unsupported reliance on every Article II category would damage the credibility of the analysis.

Article II also contains the Convention’s most important limitation: the listed acts become genocide only when committed with the intent to destroy the protected group, in whole or in part, as such. This special intent is what separates genocide from other international crimes. Crimes against humanity may involve widespread or systematic attacks against civilians. War crimes may involve serious violations of international humanitarian law. Genocide requires the added purpose of group destruction (Cassese and Gaeta, 2013; Schabas, 2009).

This is why the merits phase will be difficult. South Africa must show more than the catastrophic effects on Palestinians in Gaza. It must persuade the Court that the relevant acts and omissions support the required inference of intent. Israel’s defence will focus precisely on that point: it will argue that the purpose of its conduct was military action against Hamas, not the destruction of Palestinians as a protected group.

3.3 Article III and related responsibility

Article III expands responsibility beyond the completed act of genocide. It makes five categories punishable: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. These categories matter because the case is not limited to the question of completed genocide (Genocide Convention, 1948).

Direct and public incitement is especially relevant because South Africa relies on statements by Israeli officials and public figures. The legal issue is not simply whether statements are offensive, dehumanising, aggressive, or morally disturbing. Article III(c) requires direct and public incitement to commit genocide. The words must be public, sufficiently direct, and connected to the destruction of the protected group. Context, authority, audience, repetition, and operational connection all matter (International Criminal Tribunal for Rwanda, 1998; Schabas, 2009).

This distinction is essential for a serious article. Not every inflammatory statement is legal incitement to genocide. Political rhetoric, military language, revenge language, or dehumanising speech may be evidence of intent, and some speech may breach other norms. Yet Article III(c) has its own threshold. The Court must assess the speaker’s role, the wording used, the surrounding circumstances, and the degree to which the statement encouraged prohibited acts under Article II.

Conspiracy and attempt are also part of Article III, though they may be less prominent in the ICJ phase than in criminal proceedings. Conspiracy concerns an agreement to commit genocide. Attempt concerns conduct directed toward genocide that does not culminate in completion. These concepts are more familiar in individual criminal law, but Article IX expressly allows disputes about State responsibility for Article III acts to be submitted to the ICJ (Genocide Convention, 1948).

Complicity may have broader importance. It concerns assistance, support, or participation in genocide by actors who may not be the principal perpetrators. In State responsibility terms, complicity raises questions about aid or assistance, knowledge, and contribution to internationally wrongful conduct. For Israel, the main Article III question concerns its own alleged conduct and alleged failure to prevent or punish incitement. For third States, complicity may become relevant in debates over arms transfers, military assistance, and diplomatic support if a serious risk of genocide is established (Crawford, 2013; International Law Commission, 2001).

Article III also allows the article to handle official statements in a disciplined way. The statements may be relevant in two different ways. First, they may be alleged as direct and public incitement. Second, even if they do not meet the incitement threshold, they may still serve as evidence of genocidal intent when read with policy, military conduct, and humanitarian consequences. These are related but distinct legal uses.

3.4 Article IX and the Court’s jurisdiction

Article IX is the procedural bridge that brings the dispute before the ICJ. It provides that disputes between Contracting Parties relating to the interpretation, application, or fulfilment of the Convention, including disputes concerning the responsibility of a State for genocide or the other acts listed in Article III, shall be submitted to the ICJ at the request of any party to the dispute (Genocide Convention, 1948).

This clause is crucial because the ICJ does not have automatic jurisdiction over every international dispute. States must consent to the Court’s jurisdiction. Consent may be given through declarations, special agreements, or compromissory clauses in treaties. Article IX is such a compromissory clause. By becoming parties to the Genocide Convention without excluding Article IX, States accept that disputes under the Convention may be brought before the Court.

South Africa relies on this clause to establish jurisdiction over Israel. The claim is that a legal dispute exists between two State parties about Israel’s compliance with the Convention in Gaza. At the provisional-measures stage, the Court only needed to find prima facie jurisdiction. At the merits stage, the Court may examine jurisdiction more fully if Israel raises objections (International Court of Justice, 2024a).

Article IX also limits the case. It does not give the Court jurisdiction over the entire Gaza conflict as such. It does not independently authorise the Court to decide every question of occupation law, self-defence, targeting law, proportionality, blockade, arms transfers, or crimes against humanity. Those issues may appear in the record only because they bear on Convention obligations.

This limitation is not a technicality. It protects the legal discipline of the case. If every grave wartime allegation were treated as genocide without applying Article II and Article III carefully, the concept of genocide would lose legal precision. At the same time, if courts interpreted Article IX too narrowly, the Convention’s preventive function would be weakened. The ICJ must navigate that tension.

The Court’s prior Genocide Convention cases provide the doctrinal background. Bosnia v Serbia clarified State responsibility, prevention, complicity, and the high threshold for proving genocidal intent. Croatia v Serbia confirmed that destructive intent cannot be inferred lightly and that ethnic cleansing is not automatically genocide. The Gambia v Myanmar confirmed that a State party may invoke obligations under the Convention even without a special injury of its own (International Court of Justice, 2007; International Court of Justice, 2015; International Court of Justice, 2022).

Article IX makes South Africa’s case legally possible. Articles I, II, and III define what must be proved. The Convention as a whole keeps the analysis focused. The central legal question is not whether the Gaza conflict has produced immense human suffering. It plainly has. The Convention question is narrower and harder: whether the facts prove a breach of the legal duties to prevent and punish genocide, or the commission of genocidal acts with the specific intent to destroy Palestinians in Gaza as part of a protected group.

4. South Africa’s standing to bring the case

South Africa’s standing is one of the threshold issues in the genocide case against Israel. South Africa is not claiming that Israel directly injured South African territory, South African nationals, or South African sovereign rights. Its claim rests on a different legal idea: every State party to the Genocide Convention has a legal interest in compliance with the Convention because genocide is an offence against protected human groups and against the international legal order.

This is not ordinary diplomatic protection. In diplomatic protection, a State normally acts because one of its nationals has suffered injury. South Africa’s case is different. It invokes the Genocide Convention as a treaty built around common obligations. The claim is that a State party may bring another State party before the ICJ when the alleged breach concerns obligations owed to all parties to the Convention, not only to a directly injured State.

That point is essential because without standing, the Court would never reach the deeper merits questions of genocidal acts and genocidal intent. Israel may deny the factual and legal basis of South Africa’s claim, but South Africa’s ability to bring the case depends first on the structure of the Convention and on the ICJ’s modern case law on obligations owed to all treaty parties.

4.1 The collective interest in preventing genocide

The Genocide Convention was not drafted as a normal exchange of reciprocal advantages between States. It was created to protect human groups against destruction. This gives the Convention a public-order character. Its object is not trade, border management, investment protection, or diplomatic privilege. Its object is the prevention and punishment of one of the gravest crimes under international law (Genocide Convention, 1948).

The ICJ recognised this special character early in its advisory opinion on reservations to the Genocide Convention. The Court stated that the Convention’s principles are recognised by civilised nations as binding even without conventional obligation, and that the Convention was adopted for a purely humanitarian and civilising purpose. The Court also stressed that the contracting States do not have individual advantages or disadvantages of their own, but a common interest in achieving the Convention’s high purposes (International Court of Justice, 1951).

That reasoning matters directly for South Africa. If the Convention creates a common legal interest, then a State party does not need to prove that it suffered a separate material injury before invoking responsibility for alleged Convention breaches. The protected interest is not South Africa’s territory or nationals. It is in compliance with a treaty designed to protect groups against destruction.

This collective structure also explains why the duty to prevent genocide is not merely a private obligation owed to the State where the victims are located. The duty to prevent is part of a wider legal system aimed at stopping genocide before group destruction occurs. The ICJ’s judgment in Bosnia and Herzegovina v Serbia and Montenegro confirmed that the duty to prevent arises once a State learns, or should normally have learned, of a serious risk of genocide, and that the duty is assessed through due diligence (International Court of Justice, 2007).

South Africa’s procedural position follows that logic. It argues that the alleged risk and commission of genocidal acts in Gaza engage obligations under the Convention that all States parties have an interest in enforcing. This does not mean South Africa automatically wins on the merits. Standing allows the case to be heard. It does not prove the facts, establish genocidal intent, or settle remedies.

4.2 Erga omnes partes obligations

The legal term for South Africa’s standing theory is erga omnes partes. It means obligations owed by a State party to all other parties to a treaty. In the Genocide Convention context, each State party has a legal interest in every other State party’s compliance because the obligations protect a collective interest rather than a purely bilateral exchange.

The key modern precedent is The Gambia v Myanmar. In that case, The Gambia brought proceedings against Myanmar under the Genocide Convention concerning alleged acts against the Rohingya. Myanmar objected that The Gambia lacked standing because it was not specially affected. The ICJ rejected that objection. It held that all States parties to the Genocide Convention have a common interest in ensuring the prevention, suppression, and punishment of genocide, and that any State party may invoke the responsibility of another State party for alleged breaches of obligations under the Convention (International Court of Justice, 2022).

That judgment is central to South Africa’s case. South Africa does not need to show that South African citizens were victims in Gaza or that South Africa suffered a distinct territorial injury. Its standing rests on treaty membership and the common legal interest protected by the Convention. The Gambia precedent gives that argument strong doctrinal support.

This position also fits the broader architecture of international responsibility. The International Law Commission’s Articles on State Responsibility distinguish between injured States and States other than injured States that may invoke responsibility when an obligation is owed to a group of States and established for the protection of a collective interest. The Genocide Convention is the classic example of such a collective-interest regime (International Law Commission, 2001; Crawford, 2013).

The point should not be overstated. Erga omnes partes standing does not remove all jurisdictional and admissibility requirements. South Africa must still show that both States are parties to the Convention, that Article IX applies, that a legal dispute existed, and that the claims fall within the Convention. Standing opens the procedural door. It does not enlarge the Convention beyond its legal text.

4.3 Israel’s possible admissibility objections

Israel’s first possible objection is the absence of a genuine legal dispute at the time South Africa filed the case. Under ICJ case law, a dispute exists when the parties hold clearly opposite views on a question of law or fact. The Court does not require a formal declaration of dispute, but it looks for evidence that the respondent was aware, or could not have been unaware, that its views were positively opposed by the applicant (International Court of Justice, 2016).

South Africa’s answer is likely to rely on diplomatic communications, public statements, United Nations debates, and the content of its application. Israel may argue that South Africa moved too quickly, failed to engage properly before filing, or framed political disagreement as a legal dispute under the Convention. The Court will need to assess whether the pre-filing record showed a real legal disagreement about Genocide Convention obligations.

A second objection is that South Africa is misusing Article IX to litigate the whole Gaza conflict. Israel may argue that South Africa has repackaged issues of self-defence, hostage recovery, Hamas’s conduct, civilian casualties, targeting, proportionality, humanitarian access, and occupation into a genocide case. This objection attacks the scope of the proceedings rather than South Africa’s abstract right to invoke the Convention.

That objection has some legal force, but only up to a point. A genocide case during armed conflict will inevitably involve facts that also belong to international humanitarian law. Killings, displacement, starvation, siege conditions, and destruction of infrastructure may be relevant to Article II of the Convention. The real question is not whether those facts overlap with IHL. The real question is whether they are pleaded and proved as elements or evidence of genocide.

A third objection is politicisation. Israel may argue that the case is part of a broader political campaign and that the Court should not become a forum for strategic litigation against one party to an active conflict. That argument is unlikely to defeat jurisdiction by itself. The ICJ has long accepted that legal disputes may arise within wider political conflicts. The presence of political context does not prevent the Court from deciding legal questions properly before it (International Court of Justice, 1980).

A fourth objection concerns the position of Hamas. Israel may argue that the Court is being asked to impose restraints on Israel while Hamas, which is not a State and not a party before the ICJ, remains outside the proceedings. This is a practical and structural difficulty, especially in relation to requested military measures. Yet it does not necessarily defeat South Africa’s case. The ICJ can decide whether Israel, as a State party to the Genocide Convention, must comply with Convention obligations. Hamas’s absence may affect the framing and practicality of remedies, but it does not erase Israel’s treaty obligations.

The strongest version of Israel’s admissibility objection is not that South Africa lacks all standing. The Gambia v Myanmar makes that position difficult. The stronger objection is that South Africa’s particular claims must remain within the Convention, that the alleged dispute must be genuinely legal, and that the Court must not allow Article IX to become a general jurisdictional gateway for every legal issue arising from the Gaza war.

4.4 The legal limit of South Africa’s claim

South Africa’s standing under the Genocide Convention is significant, but it is not unlimited. It does not convert the ICJ into a general court for the entire Gaza conflict. The Court’s jurisdiction is anchored in Article IX. That means the Court may decide disputes about the interpretation, application, or fulfilment of the Genocide Convention, including State responsibility for genocide and related Article III acts (Genocide Convention, 1948).

This limit matters for legal precision. Alleged violations of international humanitarian law may be relevant evidence, but they are not automatically Convention breaches. An indiscriminate attack may be a war crime. Starvation of civilians may violate IHL. Forced displacement may breach occupation law or constitute a crime against humanity. Excessive civilian harm may violate proportionality. None of those findings automatically proves genocide.

The same limit applies to human rights law and the law on the use of force. The Court may consider the broader factual setting, but South Africa’s standing does not give the Court free-standing jurisdiction to decide every claim about self-defence, occupation, apartheid, collective punishment, blockade, or arms transfers. Those matters enter the case only when they are legally connected to genocide, prevention, incitement, complicity, or punishment.

This limitation protects both sides of the legal analysis. It prevents South Africa’s case from becoming too broad and losing doctrinal discipline. It also prevents Israel’s defence from avoiding Convention scrutiny by saying that all relevant facts belong only to IHL or military necessity. The same facts can be relevant under more than one branch of law. Their classification depends on the legal test being applied.

For readers, the point is straightforward. South Africa can bring the case because the Genocide Convention creates obligations of common interest and because the ICJ has accepted erga omnes partes standing under that treaty. Yet South Africa must still prove a Convention breach. Standing answers the question of who may bring the claim. It does not answer whether genocide occurred, whether Israel had genocidal intent, or what remedies would follow if the Court finds responsibility.

5. The protected group and the Gaza question

The protected-group issue is a necessary step in the genocide case against Israel because Article II of the Genocide Convention does not protect every human collectivity. It protects only national, ethnic, racial, and religious groups. A court cannot move directly from mass suffering to genocide without first identifying the group allegedly targeted and explaining why that group falls within the Convention (Genocide Convention, 1948).

South Africa’s case rests on the claim that Palestinians are a protected group and that Palestinians in Gaza form a legally significant part of that group. This does not mean that the whole Palestinian people must be physically threatened before the Convention can apply. Genocide may be committed against a substantial part of a protected group. The legal difficulty is identifying what makes the Gaza population a relevant “part” for Article II.

5.1 Palestinians as a protected group

Article II protects national, ethnic, racial, and religious groups. These categories are not always easy to separate in practice. A group may have national, ethnic, cultural, linguistic, historical, and religious dimensions at the same time. International criminal tribunals have usually avoided a rigid biological or formalistic approach. They assess protected groups through objective and subjective elements, including common identity, social perception, historical continuity, and the way perpetrators identify the group (ICTR, 1998; Schabas, 2009).

Palestinians can be treated as a protected group under Article II because they possess a distinct collective identity recognised in international law, diplomacy, and social reality. They are not a temporary political movement or an ordinary civilian population without a group identity. They are commonly understood as a people with shared national identity, historical connection, collective institutions, and a recognised claim to self-determination (International Court of Justice, 2004).

The exact Article II category may be debated. Palestinians may be described primarily as a national group, and in some arguments also as an ethnic group. The precise label is less important than the conclusion that the group falls within one or more protected categories. Genocide law does not require a court to force a group into only one category when the protected identity has overlapping features (ICTR, 1998; Cassese and Gaeta, 2013).

This point matters because the Convention does not protect groups defined only by political opinion. If South Africa’s claim were framed as the destruction of a political organisation, such as Hamas, it would fall outside Article II. South Africa’s case is different. It alleges that the relevant protected group is Palestinians, and that Israeli conduct is directed against Palestinians in Gaza as part of that group.

Israel’s answer is likely to focus not on denying that Palestinians can form a protected group, but on denying that Palestinians are targeted as such. That distinction is decisive. A protected group may exist, but genocide requires more than the existence of such a group. It requires prohibited acts committed with the intent to destroy the group, in whole or in part, as such (International Court of Justice, 2007).

5.2 Palestinians in Gaza as part of the group

South Africa does not need to prove that Israel intended to destroy all Palestinians everywhere. Article II covers intent to destroy a protected group “in whole or in part”. The phrase “in part” has been interpreted by international courts to require a substantial part of the group. This prevents the concept of genocide from extending to every attack on isolated members of a protected group (ICTY, 2004; International Court of Justice, 2007).

The Gaza question is central because South Africa’s case concerns Palestinians in the Gaza Strip. Gaza is not merely a location where individuals happen to live. It is a densely populated territory containing a large and identifiable part of the Palestinian people. The population shares the protected Palestinian identity and is geographically confined in a way that makes the group segment identifiable for legal analysis.

The “substantial part” assessment is both quantitative and qualitative. Numbers matter, but they are not the only factor. In Krstić, the ICTY Appeals Chamber accepted that Bosnian Muslims of Srebrenica could constitute a substantial part of the wider Bosnian Muslim group because of their size, prominence, and strategic significance to the survival of the group in that area (ICTY, 2004). The ICJ later relied on similar reasoning when addressing the destruction of a part of a protected group in Bosnia v Serbia (International Court of Justice, 2007).

Applied to Gaza, the analysis must consider population size, territorial concentration, vulnerability, and the role of Gaza within Palestinian collective life. Palestinians in Gaza are not a negligible or incidental fraction of the wider Palestinian people. They represent a major segment of the group, living under conditions where military operations, humanitarian restrictions, displacement, and infrastructure collapse may affect the group segment as a whole.

The qualitative dimension also matters. Gaza has political, social, demographic, and symbolic significance within Palestinian national life. Destruction of Palestinians in Gaza, if proved with the required intent, would not be a series of unrelated harms to scattered individuals. It would concern a defined and substantial part of the protected Palestinian group.

This does not decide the merits. Establishing that Palestinians in Gaza are a protected part of a wider group only satisfies one legal step. South Africa must still prove prohibited acts and genocidal intent. Israel may accept the existence of a protected Palestinian group while arguing that its conduct is directed against Hamas and military threats rather than Palestinians in Gaza as such.

5.3 The meaning of destruction

Genocide is concerned with the physical or biological destruction of a protected group. This is one of the most important limits in the Convention. Article II does not cover every attack on dignity, identity, culture, property, political autonomy, or social life unless those acts are connected to the physical or biological destruction of the group (Genocide Convention, 1948; International Court of Justice, 2015).

The ICJ made this distinction clear in Croatia v Serbia. The Court held that forced displacement, destruction of homes, mistreatment, and discriminatory violence may be evidence relevant to genocidal intent, but they are not automatically genocide. The decisive issue remains whether the acts were carried out with the intent to destroy the protected group physically or biologically, in whole or in part (International Court of Justice, 2015).

This distinction is essential in the Gaza case. The destruction of homes, universities, mosques, churches, hospitals, archives, public buildings, and cultural sites may be legally relevant. Such destruction may show the collapse of civilian life and may support allegations under other branches of international law. Yet cultural, social, or political destruction alone does not satisfy Article II unless it is tied to physical or biological destruction.

The same applies to oppression, domination, collective punishment, and persecution. These may be grave violations of international law. They may be relevant to crimes against humanity or human rights law. They may also form part of the factual context for a genocide claim. Yet they are not interchangeable with genocide. Genocide has a narrower legal meaning, even though it carries exceptional moral and legal gravity.

South Africa’s strongest argument under Article II is likely to focus on conditions of life capable of physical destruction. If food, water, medicine, shelter, sanitation, and medical care are removed or obstructed on a scale that threatens group survival, the case moves closer to the wording of Article II(c). The legal question then becomes whether those conditions were deliberately inflicted and calculated to bring about the physical destruction of Palestinians in Gaza, in whole or in part.

Israel’s likely response is that civilian suffering, even if severe, does not show a purpose of physical destruction. It may be argued that harm resulted from military operations against Hamas, the conduct of hostilities in dense urban terrain, tunnel warfare, evacuation difficulties, and failures or constraints in humanitarian logistics. The Court will need to decide whether such explanations remain reasonable on the evidence or whether the pattern supports the special intent required by the Convention.

5.4 Displacement as evidence, not automatic proof

Forced displacement is legally serious, but it is not automatically genocide. International humanitarian law regulates evacuation and prohibits forced displacement except in limited circumstances, such as civilian security or imperative military reasons. Genocide law asks a different question: did displacement contribute to the physical or biological destruction of the protected group, or did it reveal an intent to destroy that group as such? (ICRC, 2005; International Court of Justice, 2015).

The distinction between displacement and destruction is central to genocide jurisprudence. In Krstić, the ICTY treated the forced removal of women, children, and elderly Bosnian Muslims alongside the execution of men and boys as part of a wider genocidal operation in Srebrenica. The displacement was not analysed in isolation. It mattered because it was connected to the destruction of the Bosnian Muslim community in that area (ICTY, 2004).

The ICJ adopted a cautious approach in Croatia v Serbia. It held that ethnic cleansing may be evidence of genocidal intent, but it is not equivalent to genocide. A policy designed to remove a group from a territory is not necessarily a policy designed to destroy the group physically. The difference may be difficult in practice, but it remains legally necessary (International Court of Justice, 2015).

In Gaza, displacement may become relevant in several ways. Repeated evacuation orders, overcrowding, unsafe routes, attacks near areas of refuge, lack of shelter, disease, hunger, and the collapse of sanitation may support an argument that displacement was not merely movement away from fighting, but part of conditions of life destructive to the group. That argument becomes stronger if displacement is combined with denial of essentials and official statements suggesting that civilian survival is not being protected.

Yet the analysis must remain disciplined. Displacement caused by hostilities, even when unlawful or excessive, does not by itself prove genocidal intent. The Court would need to examine purpose, foreseeability, scale, repetition, available alternatives, humanitarian safeguards, and the practical conditions imposed on the displaced population.

The protected-group chapter should leave readers with a precise conclusion. Palestinians are capable of protection under Article II. Palestinians in Gaza may constitute a substantial part of that protected group. Destruction under the Convention means physical or biological destruction, not every form of social, cultural, political, or territorial harm. Displacement may support South Africa’s case, but only if it is legally connected to destructive conditions or to the special intent to destroy Palestinians in Gaza as such.

6. South Africa’s theory of genocidal conduct

South Africa’s case is built around Article II of the Genocide Convention. It does not ask the Court merely to condemn civilian suffering in Gaza. It argues that specific acts and omissions fall within the Convention’s definition of genocide when read alongside alleged evidence of intent. The structure of the argument is important: the acts must first fit one or more categories in Article II, and then South Africa must connect those acts to the special intent to destroy Palestinians in Gaza as part of a protected group.

The strongest way to understand South Africa’s theory is not as a single allegation, but as a cumulative case. It relies on deaths, injuries, trauma, destruction of essential infrastructure, siege conditions, humanitarian obstruction, mass displacement, and official statements. Each category has a different legal function. Some facts are used to prove prohibited acts. Others are used to support an inference of intent. Some may do both, but they must not be treated as interchangeable.

6.1 Killing members of the group

Article II(a) prohibits killing members of a protected group when the killing is committed with the intent to destroy that group, in whole or in part. South Africa relies on civilian deaths in Gaza as one of the main factual bases for this part of the claim. It argues that the scale, repetition, and circumstances of lethal force are not isolated battlefield incidents, but part of a broader pattern directed against Palestinians in Gaza (South Africa, 2023).

For Article II(a), the act element is conceptually direct. If members of the protected group are killed, the physical act required by the provision may be satisfied. The harder issue is not the legal meaning of killing. The harder issue is classification. Deaths in armed conflict may result from lawful attacks, unlawful attacks, indiscriminate attacks, disproportionate attacks, war crimes, crimes against humanity, or genocide. The same death cannot be legally classified without examining the mental element attached to it.

South Africa’s claim attempts to move beyond casualty numbers. It points to the density of Gaza, the known civilian presence in areas under attack, the effects of bombardment on residential neighbourhoods, and the repeated impact on families, children, medical facilities, shelters, and civilian infrastructure. The argument is that these facts show more than collateral harm. They are said to reveal a pattern of conduct capable of supporting an inference of group destruction.

That inference remains legally demanding. The ICJ has held that genocidal intent cannot be presumed only because members of a protected group were killed in large numbers. In Croatia v Serbia, the Court treated killings as relevant evidence, but insisted that intent to destroy the group must be the only reasonable inference before genocide can be found on the merits (International Court of Justice, 2015). This standard is likely to be central in the Gaza case.

Israel’s likely answer is that civilian deaths occurred during military operations against Hamas, not because Palestinians were targeted as a group. That response does not automatically defeat Article II(a), but it creates the central evidentiary contest. South Africa must show that the killings, viewed with the wider record, point to the destruction of the protected group rather than military action causing civilian harm, even if that harm may raise serious issues under international humanitarian law.

6.2 Serious bodily and mental harm

Article II(b) prohibits causing serious bodily or mental harm to members of the protected group. This provision is broader than killing. It covers severe physical injuries, lasting trauma, torture, sexual violence, inhuman treatment, and other forms of grave harm recognised in genocide jurisprudence. The ICTR in Akayesu treated serious bodily and mental harm as including acts that deeply damage the physical or psychological integrity of members of the group (ICTR, 1998).

South Africa relies on the large number of wounded civilians, amputations, burns, crush injuries, lack of treatment, psychological trauma, family separation, bereavement, and the destruction of ordinary social life in Gaza. It also points to the impact on children, including orphanhood, injury, fear, displacement, and exposure to repeated bombardment. These facts are legally relevant because Article II(b) does not require death. Severe harm to the living may itself constitute a prohibited genocidal act if accompanied by the required intent.

The medical context strengthens the bodily-harm argument. Injuries that might be survivable in ordinary conditions may become life-altering or fatal when hospitals are damaged, supplies are unavailable, electricity fails, ambulances cannot move safely, and specialist treatment is inaccessible. South Africa’s theory treats the harm not only as the result of attacks, but also as aggravated by the collapse of the medical system and restrictions on assistance (World Health Organization, 2024; Office for the Coordination of Humanitarian Affairs, 2024).

Mental harm requires careful legal treatment. Trauma, fear, grief, humiliation, and psychological destruction are not rhetorical additions to the claim. They may be legally significant under Article II(b). Yet the harm must be serious. Ordinary distress, even in war, does not satisfy the provision. The relevant question is the severity, scale, and lasting impact of the harm on members of the protected group.

Again, intent remains the decisive issue. Serious bodily or mental harm may prove the act element, but genocide requires that the harm be inflicted to destroy the group, in whole or in part. South Africa argues that the pattern of physical injury, psychological trauma, forced movement, deprivation, and public rhetoric supports that conclusion. Israel’s answer is likely to be that such harm, however grave, resulted from armed conflict against Hamas and not from a policy of group destruction.

6.3 Conditions of life capable of destruction

Article II(c) is likely to be the central provision in South Africa’s case. It prohibits deliberately inflicting on the protected group conditions of life calculated to bring about its physical destruction in whole or in part. This provision does not require immediate killing. It captures methods that destroy a group by making survival impossible or severely threatened over time (Genocide Convention, 1948; Schabas, 2009).

South Africa’s theory under Article II(c) is that Palestinians in Gaza were subjected to conditions incompatible with physical survival. The alleged conditions include a shortage of food and water, severe restrictions on humanitarian aid, destruction of housing, displacement into overcrowded areas, damage to sanitation systems, collapse of medical care, spread of disease, lack of fuel and electricity, and the loss of safe shelter. The argument is that these conditions were not accidental consequences of war, but the foreseeable and deliberate result of Israeli policy and military conduct.

This is where the case moves beyond individual attacks. South Africa does not rely only on bombs and deaths. It argues that the broader living environment of Palestinians in Gaza was made destructive. Under Article II(c), the legal focus is on the conditions imposed on the group: can people obtain food, water, medicine, shelter, sanitation, and medical care; can children survive; can the wounded be treated; can disease be controlled; can civilians avoid repeated exposure to lethal danger?

UN humanitarian reporting has documented severe deprivation in Gaza, including displacement, food insecurity, destruction of housing, pressure on health services, and restrictions affecting relief operations (Office for the Coordination of Humanitarian Affairs, 2024; World Health Organization, 2024). Such reporting does not by itself prove genocide. Its legal relevance is that it may help establish the factual background for a claim under Article II(c).

The words “calculated to bring about” are crucial. South Africa must show more than destructive effects. It must show that the conditions were deliberately inflicted and were calculated to bring about physical destruction. This does not require a formal written plan labelled as genocide. Courts may infer intent from conduct. Yet the inference must be grounded in evidence, not in outrage at the consequences.

Israel’s likely response is that humanitarian suffering resulted from the conduct of hostilities, Hamas’s military infrastructure in civilian areas, logistical limits, security screening, and the difficulties of aid delivery in an active conflict. South Africa must overcome that alternative explanation. It must show that the pattern of deprivation is better understood as a deliberate imposition of destructive conditions on Palestinians in Gaza as a group.

6.4 Humanitarian access and starvation

Humanitarian access is central to the Article II(c) argument because survival in Gaza depends heavily on external assistance. South Africa’s case treats restrictions on food, medicine, fuel, water, and other essentials as evidence that conditions of life were deliberately made destructive. This point connects genocide law with international humanitarian law, but the two bodies of law must be kept distinct.

Under international humanitarian law, starvation of civilians as a method of warfare is prohibited. Parties must also allow and facilitate relief for civilians in need, subject to lawful controls. Under the Genocide Convention, the question is narrower and more demanding: did restrictions on essentials form part of conditions of life calculated to bring about the physical destruction of the protected group? (ICRC, 2005; Genocide Convention, 1948).

South Africa’s argument is strongest where it links access restrictions to concrete survival risks. Food scarcity may lead to acute malnutrition. Water shortages may produce dehydration and disease. Lack of fuel may shut down hospitals, bakeries, desalination, sewage systems, and ambulances. Lack of medicine may turn treatable injuries or chronic conditions into fatal outcomes. These are not separate humanitarian problems; under Article II(c), they may be elements of a destructive living environment.

Starvation evidence also has an important inferential role. If a State knows that a population depends on aid and still imposes or maintains restrictions that foreseeably deprive civilians of essentials, that may support an argument about deliberate conditions of life. The legal force of the argument depends on scale, duration, knowledge, available alternatives, actual aid levels, restrictions imposed, and the practical consequences for the protected group.

Israel will likely argue that it permitted or facilitated humanitarian assistance, that aid failures were caused by Hamas, insecurity, theft, distribution failures, or international agencies’ logistical problems, and that it did not intend starvation or group destruction. These points matter legally. The Court will need to examine not only formal permissions for aid, but also practical access, volume, regularity, distribution, security, and the adequacy of assistance for civilian survival.

The starvation and humanitarian-access issue should not be reduced to a simple claim that “people suffered, so genocide occurred.” The correct legal question is sharper: were essential supplies obstructed or restricted in a way that deliberately imposed conditions capable of physically destroying Palestinians in Gaza, and do those facts support the required genocidal intent?

6.5 Official statements and public rhetoric

Official statements are central to South Africa’s attempt to prove intent. Genocidal intent is rarely proved by a direct written order. Courts often examine statements, patterns of conduct, policy choices, and the practical effects of conduct together. South Africa argues that statements by Israeli officials, when read with military action and humanitarian deprivation, support an inference that Palestinians in Gaza were targeted as a group (South Africa, 2023).

The legal value of a statement depends on several factors. The first is the speaker’s rank. Statements by heads of government, ministers, senior military officials, or persons with operational authority carry more weight than statements by marginal figures. The second is timing. Statements made during the formation or execution of policy may be more probative than later rhetoric. The third is repetition. A repeated vocabulary across different official levels may matter more than one isolated remark.

Context is equally important. A statement may refer to Hamas, to combatants, to the population of Gaza, or to Palestinians more broadly. It may use religious, national, military, or retaliatory language. It may be translated in disputed ways. It may be contradicted by other official instructions. A serious legal analysis must not treat every harsh statement as proof of genocide. It must ask what the words meant, who said them, to whom they were addressed, and how they related to conduct on the ground.

Statements may be relevant in two different ways. First, they may be pleaded as direct and public incitement under Article III(c). That requires a high threshold: public words directly encouraging genocide. Second, statements may serve as evidence of special intent under Article II, even if they do not independently amount to incitement. These two uses should not be confused (ICTR, 1998; Schabas, 2009).

Israel’s likely response is that South Africa relies on selective quotations, ignores statements limiting operations to Hamas, and removes words from their wartime context. It may also be argued that inflammatory statements by some officials do not represent State policy or military orders. The Court will need to assess attribution, authority, consistency, and connection between rhetoric and operational conduct.

South Africa’s theory of genocidal conduct rests on accumulation. Killings may support Article II(a). Severe injuries and trauma may support Article II(b). Destructive living conditions may support Article II(c). Humanitarian restrictions may deepen the Article II(c) claim. Official statements may help prove intent or incitement. The strength of the case will depend on whether these elements remain separate allegations or combine into a legally coherent pattern pointing to the destruction of Palestinians in Gaza as a protected group.

7. Israel’s answer to the genocide allegation

A serious analysis of the genocide case against Israel must present Israel’s defence with legal precision before assessing its strength. Israel’s answer is not simply that civilian harm is regrettable or that the conflict is complex. Its central legal position is that South Africa has failed to prove the defining element of genocide: intent to destroy Palestinians in Gaza as a protected group. Israel argues that its military campaign is directed against Hamas, its armed infrastructure, and the threat posed after the attacks of 7 October 2023, not against Palestinians as such (International Court of Justice, 2024a).

This defence matters because the Genocide Convention does not prohibit war as such. It prohibits specific acts committed with the intent to destroy a protected group, in whole or in part. Israel may still face legal scrutiny under international humanitarian law, human rights law, or international criminal law. Yet South Africa’s claim under the Genocide Convention requires proof of a different and narrower legal wrong (Genocide Convention, 1948; Schabas, 2009).

7.1 The Hamas-targeting argument

Israel’s main answer is that the relevant military objective is Hamas, not the Palestinian people. It argues that Hamas carried out mass killings, hostage-taking, sexual violence allegations, and attacks against civilians on 7 October 2023, and that Israel’s military response was directed at removing Hamas’s operational capacity, preventing further attacks, and recovering hostages (International Court of Justice, 2024a).

This argument is designed to defeat genocidal intent. If the Court accepts that Israel’s purpose was to neutralise Hamas as an armed organisation, then South Africa’s claim becomes harder. Genocide requires intent to destroy the protected group as such. A military campaign against an armed group, even one causing extensive civilian harm, is not genocide unless the protected civilian group is targeted for destruction.

The distinction is legally important. Hamas is not a protected group under Article II of the Genocide Convention. Palestinians are capable of being a protected national or ethnic group. Israel’s defence depends on separating Hamas as the military target from Palestinians as the protected group. South Africa’s task is to show that this separation does not hold on the facts, or that the campaign against Hamas was conducted in a way revealing an intent to destroy Palestinians in Gaza as such.

Israel may also argue that Hamas’s military presence in civilian areas affects the factual assessment. If weapons, command centres, tunnels, fighters, or operational assets are embedded in densely populated areas, Israel will say that civilian harm resulted from combat conditions created by Hamas. That argument does not remove Israel’s obligations under international humanitarian law, but it may be relevant to the mental element under the Genocide Convention.

The Court will not decide intent by accepting labels. Calling an operation counter-terrorism or self-defence does not automatically make it lawful. Equally, catastrophic civilian harm does not automatically make it genocidal. The Court must examine the conduct, scale, pattern, statements, humanitarian consequences, and available alternative explanations.

7.2 Civilian harm and urban warfare

Israel’s second major answer concerns the nature of the battlefield. Gaza is densely populated, heavily urbanised, and marked by extensive civilian infrastructure. Israel argues that Hamas operates within and beneath civilian areas, including through tunnels, weapons storage, command structures, and fighting positions near civilian objects. On this account, civilian deaths and destruction are explained by the difficulty of urban warfare against an organised armed group, not by an intent to destroy Palestinians (International Court of Justice, 2024a).

This argument has legal relevance because international law distinguishes civilian harm caused by military operations from civilian harm inflicted with genocidal intent. Urban warfare can create high civilian casualties, especially where combat takes place around homes, hospitals, schools, roads, shelters, and dense residential blocks. Such conditions may complicate distinction, proportionality, precautions, evacuation, and humanitarian access (ICRC, 2005).

Yet this defence does not end the legal analysis. International humanitarian law does not permit unlimited destruction because fighting occurs in cities. Parties must distinguish civilians and civilian objects from military objectives, avoid indiscriminate attacks, respect proportionality, and take feasible precautions. If these rules are breached, Israel may still face responsibility under IHL even if genocide is not proved (ICRC, 2005; Dinstein, 2016).

The question under the Genocide Convention is different. The Court must ask whether civilian harm, destruction, and deprivation can reasonably be explained by military operations against Hamas, or whether the pattern of conduct supports only an inference of intent to destroy Palestinians in Gaza as a group. This is where the distinction between war crimes and genocide becomes decisive.

South Africa will likely argue that the scale and persistence of harm exceed ordinary explanations of urban combat. Israel will likely respond that the scale of harm reflects Hamas’s military strategy, the geography of Gaza, the intensity of the conflict, and the operational need to dismantle tunnels and armed units. The Court’s task is not to choose a political narrative. It must test the evidence against the Convention’s specific legal standard.

7.3 Humanitarian mitigation measures

Israel also relies on alleged mitigation measures to rebut genocidal intent. These include evacuation warnings, instructions to civilians to leave areas of combat, humanitarian corridors, tactical pauses, coordination mechanisms for aid, facilitation of relief deliveries, and measures said to reduce civilian harm. The legal purpose of this argument is clear: a State intending to destroy a group would not, Israel argues, take steps to warn civilians, enable aid, or reduce casualties (International Court of Justice, 2024a).

This is a significant defence at the level of intent. Evidence of warnings, evacuation routes, aid coordination, and humanitarian pauses may weaken an inference that the State intended physical destruction of the protected group. Such conduct may support Israel’s claim that the purpose was the military defeat of Hamas rather than the group's destruction.

The strength of this argument depends on practical reality, not formal description. A warning is legally and factually weaker if civilians have no safe place to go, if routes are unsafe, if areas designated for refuge are later attacked, or if displaced people lack food, water, shelter, sanitation, and medical care. A humanitarian corridor has limited value if access is sporadic, inadequate, or impossible for vulnerable civilians. Aid facilitation must be judged by actual delivery and civilian survival needs, not by announcements alone.

This is where Israel’s defence and South Africa’s Article II(c) theory directly meet. Israel may say that it facilitated humanitarian assistance. South Africa may answer that the actual conditions of life remained destructive: insufficient food, water, fuel, medicine, shelter, sanitation, and medical care. The Court will need to examine not only whether mitigation measures existed, but also whether they were effective enough to rebut the claim of deliberate destructive conditions.

Mitigation evidence can cut both ways. If meaningful and sustained, it may undermine genocidal intent. If inadequate, inconsistent, or contradicted by conduct on the ground, it may fail to rebut South Africa’s case. In some circumstances, formal mitigation measures may even appear cosmetic if the practical result remains the systematic deprivation of essentials. The legal issue is not public messaging. It is the actual relationship between policy, implementation, and group survival.

7.4 Rejection of genocidal intent

Israel’s most important legal answer is the rejection of genocidal intent. It argues that South Africa collapses alleged IHL violations into genocide and treats civilian harm as proof of group destruction. This is a strong doctrinal objection because genocide has a special intent requirement that is not present in the same way in war crimes or crimes against humanity (Schabas, 2009; Cassese and Gaeta, 2013).

Israel is likely to argue that South Africa uses selective quotations from Israeli officials while ignoring contrary statements, military legal advice, humanitarian instructions, and repeated claims that civilians are not the target. It may also argue that statements made in anger after 7 October 2023 cannot be treated as official policy unless connected to operational orders or conduct.

This objection forces a careful evidentiary method. Statements by senior officials may be probative. Repeated dehumanising language may matter. Calls denying food, water, fuel, or civilian protection may matter. Yet the Court must assess speaker authority, context, translation, timing, audience, repetition, and connection to conduct. It cannot treat every inflammatory statement as direct evidence of genocidal policy.

Israel may also argue that South Africa’s case ignores Hamas’s role in the conflict. If Hamas places military assets in civilian areas, prevents evacuation, diverts aid, or uses tunnels and civilian surroundings for combat, Israel will say those facts affect both causation and intent. South Africa may respond that even Hamas’s unlawful conduct cannot justify the destructive conditions imposed on the civilian population. Both propositions can be true: Hamas’s conduct may be relevant, but it does not cancel Israel’s Convention duties.

The ICJ’s merits case law makes this dispute especially important. In Croatia v Serbia, the Court held that genocidal intent inferred from a pattern of conduct must be the only reasonable inference available on the evidence. Israel’s defence aims to preserve reasonable alternative explanations: military objective, hostage recovery, Hamas’s tactics, urban warfare, operational error, aid logistics, and IHL disputes short of genocide (International Court of Justice, 2015).

If those alternative explanations remain reasonable, South Africa’s genocide claim becomes harder at the merits stage. If the Court finds that the pattern of conduct, official statements, and humanitarian consequences cannot reasonably be explained except as an intent to destroy Palestinians in Gaza as such, Israel’s defence would fail on the central element.

7.5 The self-defence argument

Israel also relies on self-defence and military necessity to explain the purpose of its operations. The argument is not that self-defence can justify genocide. It cannot. The prohibition of genocide is absolute. No armed attack, however grave, permits a State to destroy a protected group as such (Genocide Convention, 1948; International Court of Justice, 2007).

The legal function of self-defence in Israel’s argument is different. Israel may use it to explain why force was used and what objective the campaign pursued. It will argue that the purpose of the operation was to defend its population, prevent further attacks, dismantle Hamas’s military capacity, and recover hostages. That asserted purpose is meant to rebut the claim that Israel acted with genocidal intent.

Military necessity has a similar role. It may explain attacks on military objectives, tunnel systems, command centres, weapons stores, and fighters. It may also explain some destruction connected to combat operations. Yet military necessity is not a licence to ignore civilian protection, starvation rules, proportionality, or the Genocide Convention. It is a regulated concept within IHL, not an override clause.

South Africa’s answer is likely to be that Israel’s invocation of self-defence cannot explain the scale and character of harm inflicted on Palestinians in Gaza. It may argue that even a legitimate security objective cannot justify policies that deprive civilians of essentials, destroy conditions of life, or use language and conduct pointing to group destruction.

The Court will need to keep two propositions separate. First, Israel had a right to respond to armed attacks and to protect its population. Second, any response remains bound by international law, including the Genocide Convention. The decisive question is not whether Israel had security concerns. It is whether the means used and the surrounding evidence reveal genocidal intent.

Israel’s defence is strongest where it offers concrete, evidence-based explanations for conduct: identifiable military objectives, precautions, aid measures, evacuation efforts, legal review, and orders protecting civilians. It is weakest where the humanitarian consequences appear foreseeable, prolonged, severe, and insufficiently addressed despite warnings. The case will turn on how the Court weighs those competing accounts against the high threshold for proving genocide.

8. The legal test for proving genocidal intent

The decisive legal issue in the genocide case against Israel is likely to be intent. South Africa may be able to show severe civilian harm, widespread destruction, forced displacement, deprivation of essentials, and a catastrophic humanitarian situation in Gaza. Those facts are legally important. Yet they do not prove genocide unless they are connected to the specific intent required by Article II of the Genocide Convention.

Genocidal intent is the point at which the case becomes hardest. The Court must decide whether the evidence shows an intent to destroy Palestinians in Gaza as part of a protected group, or whether the same facts can be reasonably explained as a military campaign against Hamas, even if that campaign involved grave violations of international humanitarian law. This distinction is not technical. It is the boundary between genocide and other serious international wrongs.

8.1 Special intent as the decisive threshold

Genocide requires dolus specialis, usually described as special intent or specific intent. Article II of the Genocide Convention requires that the prohibited acts be committed with the intent to destroy a national, ethnic, racial, or religious group, in whole or in part, as such. The words “as such” are central. They mean that the group must be targeted because of its protected identity, not merely because some members are located in a combat zone or because an armed group operates among them (Genocide Convention, 1948).

This special intent separates genocide from war crimes and crimes against humanity. A war crime may be committed through an unlawful attack, disproportionate civilian harm, starvation of civilians, destruction of protected objects, or forced displacement. A crime against humanity may involve a widespread or systematic attack against a civilian population. Genocide requires an added purpose: the destruction of the protected group itself, in whole or in substantial part (Cassese and Gaeta, 2013; Schabas, 2009).

The distinction matters in Gaza because many alleged facts may fit more than one legal framework. Killing civilians may be relevant to Article II(a), but it may also be analysed under the law of targeting. Serious injuries and trauma may be relevant to Article II(b), but they may also support claims of war crimes or crimes against humanity. Destructive living conditions may be relevant to Article II(c), but they may also raise issues of siege warfare, starvation, forced displacement, and humanitarian access.

The mental element is what controls legal classification. The Court must ask not only what happened, but why it happened in legal terms. Did the alleged acts occur as part of a military campaign causing unlawful or excessive civilian harm, or were they committed to destroy Palestinians in Gaza as a protected group? The answer to that question will shape the merits of South Africa’s claim.

Special intent may be proved directly or indirectly. Direct proof could include orders, policy documents, official instructions, or statements showing a purpose of group destruction. Such evidence is rare. Courts usually assess intent through inference: patterns of conduct, scale of harm, repetition, targeting choices, treatment of survivors, deprivation of essentials, public statements, and the absence of plausible alternative explanations (International Court of Justice, 2007).

8.2 The only reasonable inference standard

The ICJ has set a demanding standard for proving genocidal intent through inference. In Bosnia and Herzegovina v Serbia and Montenegro, the Court held that intent must be convincingly shown, and that genocide cannot be inferred lightly. The Court accepted that intent may be inferred through a pattern of conduct, but only where the evidence supports the necessary conclusion (International Court of Justice, 2007).

The Court sharpened this approach in Croatia v Serbia. It held that where genocidal intent is inferred rather than directly proved, it must be the only reasonable inference that can be drawn from the pattern of conduct. This is a high merit threshold. It does not apply in the same way at the provisional-measures stage, where the Court asks whether asserted rights are plausible. At the merits stage, plausibility is not enough (International Court of Justice, 2015).

This standard is central to Israel’s defence. Israel will argue that the facts have another reasonable explanation: a military campaign against Hamas after the attacks of 7 October 2023, aimed at dismantling military capacity, preventing further attacks, and recovering hostages. It may be accepted that the conflict caused severe civilian harm while denying that such harm proves an intent to destroy Palestinians as a group.

South Africa must overcome that alternative explanation. It must show that the cumulative record cannot reasonably be explained only by military necessity, urban warfare, Hamas’s conduct, operational error, poor humanitarian coordination, or IHL violations short of genocide. It must persuade the Court that the evidence points to group destruction as the only reasonable inference.

This does not mean that South Africa must find a written plan explicitly ordering genocide. International courts have never required such a document. It does mean that the evidence must be strong enough to exclude reasonable non-genocidal explanations. The more plausible Israel’s military-purpose explanation appears, the harder it becomes for South Africa to satisfy the ICJ’s merits standard.

8.3 Patterns of conduct as proof

Patterns of conduct can prove intent when individual acts, viewed separately, might remain ambiguous. A single attack may be explained as lawful targeting, unlawful targeting, mistake, recklessness, or excess. A repeated pattern of conduct may carry a different evidentiary meaning. Courts look at repetition, scale, consistency, and the practical consequences for the protected group (International Court of Justice, 2007; International Court of Justice, 2015).

South Africa’s argument is likely to rely heavily on cumulative proof. It may argue that killings, injuries, destruction of housing, displacement, deprivation of food and water, collapse of medical services, obstruction of aid, and official rhetoric must be read together as a pattern. The claim is not merely that each act was unlawful. The claim is that the pattern reveals an intent to make Palestinian life in Gaza physically impossible.

Article II(c) makes this pattern-based argument especially important. Conditions of life capable of destruction may be created through multiple measures rather than one discrete act. Shortage of water, lack of food, disease, absence of shelter, loss of medical care, destruction of sanitation, and repeated displacement may combine into a destructive environment. The legal question is whether those conditions were deliberately inflicted and calculated to bring about physical destruction.

Scale will matter, but scale alone will not decide the case. A large number of civilian deaths may be evidence of genocidal intent, but it may also be evidence of intense warfare, unlawful attacks, or disproportionate force. Destruction of civilian infrastructure may support an inference of destructive intent, but it may also be defended as incidental to attacks on military objectives. The Court must decide whether the pattern crosses the legal threshold set by the Convention.

Repetition may also matter. If the same types of harm continue after warnings by UN bodies, humanitarian agencies, allied States, or the ICJ itself, the argument about knowledge and intent becomes stronger. Continued deprivation after clear notice of life-threatening consequences may support an inference that destruction was not merely foreseeable but accepted or intended. Still, the Court must separate knowledge of consequences from the specific purpose of group destruction.

Targeting patterns will be another key issue. South Africa may argue that attacks on homes, hospitals, schools, shelters, water systems, bakeries, roads, and humanitarian facilities show destruction of the conditions necessary for group survival. Israel may respond that Hamas used civilian objects for military purposes, that some facilities lost protection through military use, and that attacks were aimed at military objectives. The Court will need to assess the evidence object by object and pattern by pattern.

8.4 Statements as proof of intent

Official statements can be powerful evidence of genocidal intent. Genocide is a crime of purpose, and purpose may be revealed through language. Statements that dehumanise the protected group, deny its civilian character, call for destruction, or link deprivation of essentials to group identity may carry significant evidentiary weight.

Yet statements must be handled carefully. The legal value of a statement depends on who made it, when it was made, how often similar statements appeared, what words were used, how they were understood, and how closely they were connected to State action. A statement by a senior minister or military commander may have greater evidentiary force than a statement by a private citizen or peripheral political figure.

The article should distinguish five categories of speech. First, loose rhetoric may be inflammatory but legally weak if it lacks operational connection. Second, extremist speech may show a hostile environment, but may not be attributable to State policy. Third, official policy statements may be significant if made by persons with authority. Fourth, military orders may be highly probative if they direct conduct against the protected group. Fifth, direct and public incitement may itself fall within Article III(c) of the Convention if it directly calls for genocide (Genocide Convention, 1948; ICTR, 1998).

South Africa’s use of statements will likely have two functions. Some statements may be used to argue incitement under Article III. Others may be used as circumstantial evidence of special intent under Article II. Those are different legal routes. A statement may fail to meet the threshold for direct and public incitement, but still contribute to an inference of intent when read with conduct on the ground.

Israel’s answer will likely be that South Africa selects extreme statements while ignoring contrary official positions. Israel may point to statements that distinguish Hamas from civilians, instructions to facilitate aid, evacuation notices, legal review mechanisms, and official claims that civilian harm is not the objective. The Court will need to assess the full evidentiary record rather than isolated quotations.

Translation and context may also matter. Wartime language can be imprecise, emotional, religious, metaphorical, or directed at enemy fighters rather than civilians. That does not make it irrelevant. It means the Court must ask whether the words, understood in context, reveal a State purpose of destroying Palestinians in Gaza as such.

8.5 Competing explanations

The hardest question is whether the same facts can reasonably be explained without genocidal intent. This is where the ICJ’s “only reasonable inference” standard becomes decisive. If the Court finds that the evidence can reasonably be understood as a military campaign against Hamas, even one involving serious violations of IHL, South Africa may fail to prove genocide on the merits.

Israel’s competing explanation has several parts. It will argue that Hamas was the intended target; that Hamas embedded military assets in civilian areas; that tunnels, command centres, weapons stores, and fighters were located beneath or near civilian infrastructure; that evacuation warnings and aid measures were inconsistent with an intent to destroy Palestinians; and that civilian harm, although severe, does not prove genocidal purpose.

South Africa’s competing answer is that the scale, duration, and character of harm cannot be explained by military necessity alone. It may argue that deprivation of essentials, repeated displacement, destruction of life-sustaining infrastructure, attacks affecting medical care, obstruction of humanitarian assistance, and official rhetoric reveal a pattern directed at the Palestinian population in Gaza, not merely at Hamas.

Both sides will use the same factual categories but assign them different legal meanings. Evacuation orders may be presented by Israel as civilian-protection measures. South Africa may present them as forced displacement into unsafe and unsustainable conditions. Aid mechanisms may be presented by Israel as evidence against genocidal intent. South Africa may argue that the amount, timing, and access conditions were grossly inadequate for survival.

The Court’s task is not to decide which side has the stronger moral narrative. It must decide whether the evidence satisfies the Convention’s legal test. The question is not simply whether Israel violated IHL. It is not simply whether South Africa has shown grave harm. The question is whether the evidence proves that Israel intended to destroy Palestinians in Gaza, in whole or in substantial part, as such.

This is why the merits phase will be far more demanding than the provisional-measures phase. At the interim stage, the Court could act on plausible rights and risk of irreparable prejudice. At the merits stage, the Court must make findings on facts, attribution, legal characterisation, and intent. The genocide allegation will stand or fall on whether South Africa can meet that heavier burden.

9. Provisional measures and the merits gap

The provisional measures phase is one of the most misunderstood parts of the genocide case against Israel. The ICJ’s orders of 26 January, 28 March, and 24 May 2024 are legally important. They are binding. They also carry major political and diplomatic weight. Yet they are not final judgments that Israel committed genocide. They are interim orders designed to protect rights claimed under the Genocide Convention while the Court considers the case in full (International Court of Justice, 2024a; International Court of Justice, 2024b; International Court of Justice, 2024c).

This distinction is essential. At the provisional-measures stage, the Court does not decide the final facts, does not determine full State responsibility, and does not apply the full evidentiary burden required at the merits stage. The Court asks whether urgent protection is needed before final judgment. The merits stage asks whether the applicant has proved its legal claims. Confusing these two stages leads to a false reading of the case.

9.1 The test for provisional measures

The ICJ may indicate provisional measures when several conditions are met. First, the Court must be satisfied that it has prima facie jurisdiction. This does not mean that jurisdiction has been finally established. It means that the jurisdictional basis invoked by the applicant appears capable of founding the Court’s jurisdiction at this preliminary stage (International Court of Justice, 2024a).

Second, the rights asserted by the applicant must be plausible. In this case, South Africa had to show that the rights it claimed under the Genocide Convention were at least plausible. These included the rights of Palestinians in Gaza to be protected against acts of genocide and related prohibited conduct, and South Africa’s own right as a State party to seek compliance with the Convention (International Court of Justice, 2024a).

Plausibility is not proof. This is the key point. When the Court says that rights are plausible, it is not saying that the alleged genocide has been established. It is saying that the rights claimed are legally recognisable and sufficiently connected to the Convention to justify interim protection if the other conditions are met.

Third, there must be a link between the rights claimed and the measures requested. A provisional measure cannot be imposed simply because the situation is grave. It must protect the rights that may later be adjudicated on the merits. In the genocide case against Israel, that required a connection between the requested measures and rights under the Genocide Convention.

Fourth, the Court must find a risk of irreparable prejudice. This means that the rights at issue may suffer harm that cannot be repaired by a later judgment. Genocide-related rights are especially suited to this analysis because the destruction of life, bodily integrity, group survival, and evidence cannot be fully restored after the fact.

Fifth, there must be urgency. The Court must be satisfied that there is a real and imminent risk that irreparable prejudice may occur before it gives final judgment. In an ongoing armed conflict, urgency may be linked to continuing military operations, humanitarian collapse, displacement, starvation risk, or destruction of evidence.

These requirements are lower than the merits standard. On the merits, South Africa must prove jurisdiction, admissibility, attribution, breach, and genocidal intent. At the provisional-measures stage, the Court acts to preserve rights before those questions are finally decided. That is why the orders matter, but also why they must not be overstated.

9.2 The January 2024 order

The first provisional-measures order was issued on 26 January 2024. The Court found that it had prima facie jurisdiction under Article IX of the Genocide Convention. It also found that at least some of the rights claimed by South Africa were plausible. This was a major procedural success for South Africa because it kept the case alive and allowed the Court to impose binding interim obligations (International Court of Justice, 2024a).

The Court ordered Israel to take all measures within its power to prevent the commission of acts falling within Article II of the Genocide Convention. These include killing members of the group, causing serious bodily or mental harm, deliberately inflicting destructive conditions of life, imposing measures intended to prevent births, and forcibly transferring children. The order required Israel to ensure that its military did not commit such acts (International Court of Justice, 2024a).

The Court also ordered Israel to prevent and punish direct and public incitement to commit genocide. This part of the order is significant because South Africa had relied heavily on public statements by Israeli officials and public figures. The Court did not decide that those statements amounted to incitement. It required Israel to control and punish incitement if it occurred.

The January order also required Israel to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to Palestinians in Gaza. It required Israel to preserve evidence related to allegations under the Convention. It also ordered Israel to submit a report to the Court on the measures taken to give effect to the order (International Court of Justice, 2024a).

The Court did not grant all measures requested by South Africa. Most importantly, it did not order the full suspension of Israel’s military operations in Gaza in the terms requested. This omission matters. It shows that the Court was willing to impose Convention-based restraints, but did not frame the January order as a general ceasefire order.

The January order was legally powerful but limited. It confirmed that the Convention rights asserted by South Africa were plausible and needed interim protection. It did not decide that Israel had committed genocide. It did not make final findings on intent. It did not determine that every alleged act in South Africa’s application had been proved.

9.3 The March 2024 order

South Africa later sought additional provisional measures, arguing that the humanitarian situation in Gaza had deteriorated and that the January order was insufficient. The Court issued a further order on 28 March 2024. The March order responded directly to worsening humanitarian conditions, especially the risk of famine and the obstruction or insufficiency of humanitarian assistance (International Court of Justice, 2024b).

The Court ordered Israel to take all necessary and effective measures to ensure, without delay and in full cooperation with the United Nations, the unhindered provision at scale of urgently needed basic services and humanitarian assistance. The listed essentials included food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, medical supplies, and medical care (International Court of Justice, 2024b).

This order strengthened the Article II(c) dimension of the case. Article II(c) concerns conditions of life calculated to bring about physical destruction. Humanitarian access, food, water, sanitation, shelter, and medical care are directly relevant to the survival of a civilian population. The Court’s March order recognised that the humanitarian situation had become more severe since January.

The March order also required Israel to ensure that its military did not commit acts that would violate the rights of Palestinians in Gaza under the Genocide Convention. This included preventing actions that could obstruct the delivery of urgently needed humanitarian assistance. The Court again required Israel to report on implementation (International Court of Justice, 2024b).

The legal meaning of the March order should be stated carefully. It did not find that Israel had deliberately starved Palestinians as an act of genocide. It did not make a final finding under Article II(c). It did, however, treat humanitarian access and basic services as urgent issues connected to plausible rights under the Genocide Convention.

This order illustrates the flexible character of provisional measures. The Court may adjust interim protection when the factual situation changes. It does not have to wait for a final judgment if rights under the Convention may suffer irreparable harm before the merits are decided.

9.4 The May 2024 Rafah order

The third major provisional-measures order was issued on 24 May 2024. It followed South Africa’s request concerning Israel’s military operations in Rafah. By that stage, Rafah had become a central point of concern because large numbers of displaced Palestinians had moved there and because military operations risked aggravating already severe humanitarian conditions (International Court of Justice, 2024c).

The most debated part of the May order required Israel to halt its military offensive, and any other action in the Rafah Governorate, which may inflict on Palestinians in Gaza conditions of life capable of bringing about their physical destruction in whole or in part. The wording matters. The order links military action in Rafah to the risk of conditions of life capable of physical destruction (International Court of Justice, 2024c).

The controversy lies in how broadly that wording should be read. One interpretation treats the order as requiring Israel to halt the Rafah offensive as such. Another interpretation emphasises the qualifying phrase and reads the order as prohibiting military operations in Rafah only to the extent that they may inflict destructive conditions of life on Palestinians in Gaza. The disagreement matters because it affects how the order is assessed for compliance.

A careful legal reading must avoid two errors. The first error is to ignore the order’s strong language on halting the military offensive in Rafah. The second error is to detach that language from the Convention-based wording that follows. The Court was not issuing a general battlefield-management instruction. It was acting under the Genocide Convention to prevent conditions of life capable of bringing about physical destruction.

The May order also required Israel to keep the Rafah crossing open for unhindered provision at scale of urgently needed basic services and humanitarian assistance. It required Israel to ensure access to Gaza for investigative bodies mandated by competent organs of the United Nations to investigate allegations of genocide. Israel was again required to report to the Court on implementation (International Court of Justice, 2024c).

The Rafah order is legally important because it shows the Court’s increasing concern with the relationship between military operations, displacement, humanitarian access, and survival conditions. It also shows the difficulty of using provisional measures in an active war where one party before the Court is a State and the other armed actor, Hamas, is not a party to the proceedings.

The order did not decide the merits. It did not find that the Rafah operation was genocide. It did not make a final finding that Israel had the intent to destroy Palestinians in Gaza. It imposed urgent legal restraints because the Court considered that Convention rights faced a real risk of irreparable prejudice before final judgment.

9.5 Binding force without direct enforcement

ICJ provisional measures are legally binding. This has been clear since the Court’s judgment in LaGrand, where the Court held that orders indicating provisional measures create international legal obligations. The same position was reaffirmed in later cases, including Avena (International Court of Justice, 2001; International Court of Justice, 2004).

The binding force, however, does not mean direct enforcement. The ICJ has no police force, army, or independent enforcement agency. It cannot itself compel a State to comply through coercive measures. Compliance depends on the respondent State, pressure from other States, action through United Nations organs, domestic legal consequences, and reputational costs.

This enforcement gap does not make provisional measures meaningless. Interim orders can shape diplomatic conduct, arms-transfer decisions, domestic litigation, parliamentary scrutiny, public procurement, military cooperation, and the conduct of international organisations. They also create a legal record. Non-compliance may become relevant later when the Court examines responsibility, remedies, and good faith.

Third, states may also be affected in practical terms. If the Court identifies a serious risk to rights under the Genocide Convention, other States may need to reassess military assistance, arms exports, intelligence cooperation, diplomatic support, and humanitarian obligations. The legal basis for such reassessment may come not only from the ICJ orders, but also from the duty to prevent genocide and the duty not to aid or assist internationally wrongful conduct (International Law Commission, 2001; Crawford, 2013).

Domestic courts can give provisional measures additional force. National judges may refer to ICJ orders when reviewing arms exports, government policy, public procurement, or compliance with domestic and international obligations. Even when domestic courts do not treat ICJ orders as directly enforceable by private claimants, the orders may influence the assessment of risk, legality, and due diligence.

The merits gap remains the central point. The ICJ’s provisional measures are binding and legally serious. They confirm that the Court considered the asserted Convention rights plausible and at risk of irreparable harm. They do not prove genocide. The final judgment will require a much deeper inquiry into facts, attribution, legal characterisation, and special intent. Any accurate account of the genocide case against Israel must keep that distinction at the centre of the analysis.

Also read

• Rohingya Genocide: Law, Evidence, and Accountability

• Darfur Genocide

• Difference between ICJ and ICC: Jurisdiction, Power, and Limits

• Crimes Against Humanity in Contemporary International Law

• The Responsibility to Protect: Law, Practice, and Limits

• International Responsibility in Public International Law

• The Evolution of Universal Jurisdiction in Human Rights Enforcement

• Evolution of the Law of Armed Conflict

10. Consequences for international law

The genocide case against Israel matters beyond the immediate dispute between South Africa and Israel because it tests the practical force of the Genocide Convention during an ongoing armed conflict. The judgment may clarify how far States can use the Convention to challenge conduct occurring outside their territory, how courts should assess genocidal intent while hostilities continue, and how the law distinguishes genocide from other grave international wrongs.

The case also has institutional significance. It places the ICJ at the centre of a dispute involving mass civilian harm, urgent humanitarian need, contested military necessity, and allegations of group destruction. The Court’s eventual judgment may shape not only the rights and obligations of the parties, but also the conduct of third States, national courts, arms-export authorities, international organisations, and future litigants invoking the Genocide Convention.

10.1 State responsibility for genocide

The ICJ’s final judgment may produce several possible legal outcomes. The most complete outcome for South Africa would be a finding that Israel is directly responsible for genocide under Article II of the Convention. That would require proof of prohibited acts, attribution to Israel, and special intent to destroy Palestinians in Gaza as part of a protected group. This is the highest and most difficult finding because it requires the Court to conclude that genocidal intent has been proved on the merits (Genocide Convention, 1948; International Court of Justice, 2007).

A second possible outcome is a finding that Israel breached the duty to prevent genocide without a finding that Israel itself committed genocide. The ICJ recognised in Bosnia v Serbia that the duty to prevent is autonomous. A State may breach that duty if it knew, or should have known, of a serious risk of genocide and failed to take measures reasonably available to prevent it (International Court of Justice, 2007). This type of finding would still be legally serious, even if the Court did not find direct commission of genocide.

A third possibility is a finding concerning direct and public incitement to genocide. The Convention requires States to prevent and punish incitement. The Court may examine whether official statements or public rhetoric crossed the legal threshold of direct and public incitement, and whether Israel took adequate steps to prevent or punish such conduct. This issue is distinct from proof of completed genocide. Speech may be legally relevant even where the Court does not find that genocide occurred (Genocide Convention, 1948; Schabas, 2009).

A fourth possible outcome is a finding of complicity. Complicity would require careful analysis of assistance, knowledge, contribution, and connection to prohibited conduct. In the present case, complicity may be more relevant to broader debates about third-State support, but the Convention itself includes complicity among punishable acts. The Court’s treatment of complicity could influence future cases involving military aid, intelligence support, or logistical assistance to a State accused of genocide (International Law Commission, 2001; Crawford, 2013).

A fifth outcome is that the Court may find no breach of the Genocide Convention. That would not mean that the conduct at issue was lawful under all branches of international law. It would mean that South Africa failed to prove the specific elements required by the Convention. The Court could reject genocide while leaving open questions of war crimes, crimes against humanity, occupation law, human rights law, or responsibility under international humanitarian law.

Each possible finding carries different legal consequences. Direct responsibility for genocide would be the gravest result. A failure-to-prevent finding would still confirm a serious breach of a core treaty obligation. A finding limited to incitement would focus on speech, public authority, and punishment. A finding of no Convention breach would preserve the high threshold for genocide while not necessarily validating the broader conduct of hostilities.

10.2 Remedies if South Africa succeeds

If South Africa succeeds, the Court may order remedies grounded in the law of State responsibility and the Genocide Convention. The first remedy would be cessation. If the Court finds that Israel is breaching Convention obligations, it may require Israel to stop the wrongful conduct. Cessation is a basic consequence of an internationally wrongful act and is especially important where the alleged breach is continuing (International Law Commission, 2001).

A second remedy would be guarantees of non-repetition. These may require legal, administrative, military, or policy measures designed to prevent future violations. In a genocide case, guarantees of non-repetition could include instructions to armed forces, control of official rhetoric, investigation of incitement, review of military procedures, protection of humanitarian access, and preservation of civilian survival conditions (Crawford, 2013).

A third remedy may concern evidence preservation. The Court already addressed evidence preservation at the provisional-measures stage. On the merits, evidence preservation may remain relevant because genocide allegations depend on records, military orders, communications, casualty data, forensic material, humanitarian access records, detention information, and documentation of public statements. Destruction or withholding of evidence can affect later legal accountability.

A fourth remedy may relate to punishment. The Genocide Convention requires the punishment of persons responsible for genocide and related acts. The ICJ cannot conduct criminal trials, but it may require a State to investigate, prosecute, or cooperate with competent mechanisms where appropriate. This would preserve the distinction between State responsibility before the ICJ and individual criminal responsibility before criminal courts (Genocide Convention, 1948; Cassese and Gaeta, 2013).

A fifth possible remedy concerns humanitarian access. If the Court finds that deprivation of essentials formed part of a Convention breach, it may order measures ensuring food, water, medical care, shelter, sanitation, fuel, and safe humanitarian operations. Such relief would not be ordinary humanitarian policy. It would be a remedy linked to the prevention of group destruction under Article II(c).

Reparation may also arise. Under the law of State responsibility, reparation may include restitution, compensation, and satisfaction. In a mass-harm genocide case, reparation is legally and practically difficult. Victim identification, causation, valuation, displacement, destroyed property, death, injury, trauma, and institutional harm create complex evidentiary problems. Still, difficulty does not remove the legal principle that a responsible State must make full reparation for injury caused by its internationally wrongful act (International Law Commission, 2001; Crawford, 2013).

10.3 Third-State duties

The case may affect third States because the Genocide Convention does not create purely bilateral obligations. Its obligations protect a common interest. The ICJ confirmed in The Gambia v Myanmar that every State party has a legal interest in compliance with the Convention. That principle supports South Africa’s standing and also affects how other States assess their own conduct during a serious risk of genocide (International Court of Justice, 2022).

The duty to prevent is especially important for third States. Under Bosnia v Serbia, the scope of prevention depends on a State’s capacity to influence the relevant actors, its knowledge of the risk, and the means reasonably available to it. States with military, financial, diplomatic, or political influence may face a heavier due diligence burden than States with little practical leverage (International Court of Justice, 2007).

Arms transfers are the most obvious area of legal exposure. If a State supplies weapons, ammunition, intelligence, components, or military assistance while aware of a serious risk that such support may contribute to genocide or related prohibited acts, it may need to reassess the legality of that support. The analysis may involve the Genocide Convention, the law of State responsibility, international humanitarian law, and arms-transfer treaty obligations, including risk assessment under the Arms Trade Treaty, where applicable (Arms Trade Treaty, 2013; International Law Commission, 2001).

Diplomatic support may also raise legal questions. Political endorsement alone is not the same as complicity. Yet where a State has influence, knowledge of a serious risk, and practical capacity to help prevent harm, complete passivity may be legally vulnerable. Prevention may require diplomatic pressure, suspension of certain forms of cooperation, humanitarian action, support for investigations, or steps to avoid aiding prohibited conduct.

Humanitarian duties are also relevant. Third, states may be expected to support relief access, medical evacuation, funding of humanitarian operations, and compliance with provisional measures. These duties do not all arise directly from the Genocide Convention, but they may interact with the Convention’s preventive purpose when survival conditions are at issue.

The wider consequence is that third States cannot treat the case as a dispute belonging only to South Africa and Israel. Once a serious risk of genocide is alleged, and once the ICJ has indicated provisional measures, other States must assess their own exposure. The Convention’s collective character means that legal risk travels beyond the courtroom.

10.4 Domestic litigation and arms exports

The ICJ’s orders and eventual judgment may influence domestic courts. National courts may be asked to review arms exports, military cooperation, procurement contracts, intelligence sharing, public funding, or government policy toward Israel. Claimants may argue that continued support violates domestic law, export-control statutes, human-rights obligations, the Arms Trade Treaty, or duties connected to the Genocide Convention.

Domestic courts are not all likely to respond in the same way. Some may treat foreign policy and arms exports as matters with a wide margin of executive discretion. Others may require governments to show that they conducted a lawful risk assessment. The ICJ’s provisional measures can become important evidence in those domestic proceedings because they identify plausible Convention rights and a risk of irreparable prejudice, even though they do not decide the merits.

The effect on arms-export licensing may be particularly concrete. Export authorities often must assess the risk that exported weapons could be used to commit serious violations of international humanitarian law or international crimes. An ICJ order under the Genocide Convention may heighten the legal and evidentiary burden on the exporting State. It may require reassessment of licences, suspension of transfers, stricter end-use monitoring, or disclosure of risk analysis.

Domestic litigation may also address procurement and public investment. Public bodies, pension funds, universities, municipalities, and State-owned entities may face legal or political challenges over contracts connected to military equipment, surveillance, security cooperation, or companies allegedly linked to operations in Gaza. ICJ findings may shape such disputes even when they are not directly enforceable in domestic law.

The strongest domestic effect would follow a merits judgment finding a Convention breach. A final ICJ judgment would carry greater legal authority than provisional measures. Yet provisional measures already matter because they establish binding interim obligations and signal that the Court sees a serious legal risk under the Convention. Domestic decision-makers cannot responsibly ignore that legal context.

This does not mean that every domestic case challenging arms exports or cooperation will succeed. Courts will still examine standing, justiciability, statutory powers, evidence, causation, and the standard of review. The practical consequence is more modest but still important: the genocide case against Israel raises the legal cost of unexamined support and forces governments to document why continued cooperation is lawful.

10.5 The boundary between genocide and IHL

The broader doctrinal importance of the case lies in the boundary between genocide and international humanitarian law. Armed conflict may produce extreme civilian suffering without satisfying the legal definition of genocide. At the same time, genocide can be committed during armed conflict and may be carried out through methods that also violate IHL. The same facts may be relevant under both legal frameworks, but the legal tests are different.

International humanitarian law regulates the conduct of hostilities. It asks whether parties respected distinction, proportionality, precautions, rules on starvation, protection of civilians, medical services, humanitarian relief, and displacement. Genocide law asks whether prohibited acts were committed with the intent to destroy a protected group, in whole or in part, as such. The difference is not academic. It determines what must be proved and what legal consequences follow (ICRC, 2005; Schabas, 2009).

This case may clarify how IHL evidence can be used in genocide litigation. Civilian deaths, destruction of homes, attacks affecting hospitals, restrictions on aid, starvation risk, and forced displacement may serve as evidence of genocidal conduct or intent. Yet they do not automatically become genocide because they are grave. The Court must decide how such facts contribute to the Article II analysis and to the inference of special intent.

The case may also clarify how courts deal with competing explanations. Israel will argue that the facts are explained by military operations against Hamas. South Africa will argue that the pattern of destruction and deprivation points to the destruction of Palestinians in Gaza as a group. The Court’s treatment of this dispute may become a leading reference for future cases where genocide is alleged during active combat.

A judgment for South Africa could expand the practical reach of the Genocide Convention in armed conflict by showing that siege, deprivation, and destructive conditions of life may support a genocide finding when tied to special intent. A judgment for Israel could reaffirm the high threshold for genocide and warn against converting every catastrophic IHL case into a genocide case. A mixed judgment could draw a line between failure to prevent, incitement, or humanitarian obligations and direct responsibility for genocide.

The lasting value of the case will depend on the Court’s reasoning. A careful judgment could strengthen both genocide law and IHL by preserving their separate functions. Genocide law must remain capable of addressing group destruction. IHL must remain capable of regulating warfare even when genocide is not proved. If the Court explains that boundary clearly, the case will shape the legal vocabulary of armed conflict, prevention, and accountability for years.

11. Conclusion

The genocide case against Israel is historically significant because it places the Genocide Convention at the centre of judicial scrutiny during an active and highly destructive armed conflict. Yet its legal outcome cannot depend on outrage, political alignment, casualty figures alone, or the gravity of humanitarian suffering. The ICJ must decide the case through the Convention’s specific legal elements: protected group, prohibited acts, attribution, breach of obligation, and special intent (Genocide Convention, 1948; International Court of Justice, 2007).

South Africa’s case is strongest where it connects the situation in Gaza to Article II(c): conditions of life capable of bringing about physical destruction. Allegations concerning deprivation of food, water, medicine, shelter, sanitation, humanitarian access, and medical care directly engage the Convention’s language when they are framed as destructive conditions imposed on a protected group. The legal challenge is proving that those conditions were not merely foreseeable consequences of warfare, but were deliberately inflicted with the required intent to destroy Palestinians in Gaza, in whole or in part.

Israel’s strongest defence is directed at that mental element. It argues that its military campaign is aimed at Hamas, the prevention of further attacks, and the recovery of hostages, not the destruction of Palestinians as a protected group. That defence does not answer every possible allegation under international humanitarian law. It does, however, directly challenge the core requirement of genocide: intent to destroy the group as such (Schabas, 2009; Cassese and Gaeta, 2013).

The provisional measures orders are legally important but limited. They show that the Court considered rights under the Genocide Convention plausible and at risk of irreparable harm. They do not decide that genocide has occurred. The merits phase requires a heavier evidentiary inquiry into facts, attribution, legal characterisation, and intent. Any serious assessment of the case must keep that gap clear (International Court of Justice, 2024a; International Court of Justice, 2024b; International Court of Justice, 2024c).

The case may shape future genocide litigation because it forces the ICJ to assess allegations of group destruction while military operations continue, facts remain contested, and civilian suffering is extreme. Its lasting importance will depend not only on who wins, but on how clearly the Court explains the boundary between genocide and other grave violations of international law. A disciplined judgment could strengthen the Genocide Convention without weakening the separate role of international humanitarian law.

References

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3. Convention on the Prevention and Punishment of the Crime of Genocide (1948) 78 UNTS 277. Available at: https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf (Accessed: 05 March 2026).

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