The International Court of Justice (ICJ) will hear South Africa’s case against Israel under the 1948 Genocide Convention this week.
The emergency hearing, which will be live-streamed, focuses on South Africa’s request for “provisional measures”, including a ceasefire order and an instruction that Israel must halt its deprivation of food, water, fuel, shelter, clothing, hygiene, sanitation, medical supplies and assistance to Palestinian children and adults in Gaza.
South Africa alleges that Israel is committing genocide and failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others. To order provisional measures, the ICJ needs to be convinced that at least some of the acts alleged “are capable of falling within the provisions of the convention”.
Any one of the 153 states parties to the Genocide Convention could have brought this case; countries owe their obligations to prevent and punish genocide to every other convention state party.
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It is a case that Ireland could and should join. We could formally intervene after this week’s interim hearing to assert our interpretation of the convention’s provisions – as we did in 2022 in Ukraine’s case against Russia. Or we could file a separate case against Israel which the court could choose to add to South Africa’s.
To file our own case against Israel, Ireland would need to be in dispute with Israel over its compliance with the Genocide Convention. A basic first step would be to communicate with Israel that the crime of genocide appears to be occurring or imminent in Gaza, as numerous countries have done.
At the very least, Ireland should issue a statement in support of South Africa’s resort to the ICJ for the purpose of preventing serious international crimes.
Since mid-November, a large group of independent United Nations human rights experts have warned of “a genocide in the making” in Gaza and called for all countries to mobilise the international genocide prevention system.
These 15 special rapporteurs and 21 members of UN working groups have sounded their “alarm over discernibly genocidal and dehumanising rhetoric coming from senior Israeli Government officials, as well as some professional groups and public figures, calling for the ‘total destruction’ and ‘erasure’ of Gaza, the need to ‘finish them all’ and force Palestinians from the West Bank and East Jerusalem in to Jordan”. The independent experts note that “Israel has demonstrated it has the military capacity to implement such criminal intentions”.
Among these UN experts are the two esteemed Irish UN special rapporteurs: Prof Siobhán Mullally MRIA, special rapporteur on trafficking in persons, especially women and children; and Mary Lawlor, special rapporteur on the situation of human rights defenders.
The UN High Commissioner for Human Rights has described the situation in Gaza as “apocalyptic”. The UN emergency relief co-ordinator says “Gaza has simply become uninhabitable ... while the world watches on”. According to Unicef, the “safe zones” which Israel designates are “tiny patches of barren land, or street corners, or half-built buildings, with no water, no facilities, no shelter from the cold and the rain and no sanitation”.
On January 5th, UN secretary general António Guterres informed the Security Council that ”hunger and thirst are rampant – and widespread famine looms”. Guterres states that an estimated 85 per cent of Palestinians in Gaza are displaced, with more than 60 per cent of homes destroyed. Israel has reportedly killed well over 22,000 people – the large majority children and women – and injured tens of thousands more, including in UN facilities and hospitals and locations announced as “safe”.
Save The Children, meanwhile, highlights that Israel’s indiscriminate bombing has cost more than 10 children per day one or both of their legs.
[ In Gaza, the risk of genocide grows more acuteOpens in new window ]
The Irish Government must offer a more considered response to South Africa’s initiation of ICJ proceedings. It is the least the people of Gaza, and all in Palestine and Israel – whose future depends on peace – deserve.
Last Sunday, Taoiseach Leo Varadkar told RTÉ that the Government has no intention of supporting South Africa’s claim. “Bear in mind what Hamas did on October 7th ... Was that not also genocide?” the Taoiseach argued. Referring to the Holocaust, Mr Varadkar cautioned that “this is an area where we need to be very careful”.
Indeed, extreme care is needed when genocide is alleged. That is why the Government and all Oireachtas members should return early from their Christmas recess to debate the facts and law argued by South Africa, and Israel’s responses.
In South Africa’s 84-page legal submissions our Government politicians will find the definition of genocide: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.”
Our politicians will note that South Africa’s legal submissions begin by recognising the gravity of a claim against Israel at the ICJ. These submissions unequivocally condemn and characterise as an atrocity crime under international law the targeting of Israeli civilians and other nationals, and hostage-taking, by Hamas and other Palestinian armed groups. However, rightly, the legal submissions emphasise that genocide is never, ever justified – and that all parties to the Genocide Convention are obliged to act to prevent its occurrence. In them, our politicians will read pages of expressions of intent which have accompanied Israel’s destruction of life and the conditions for living in Gaza. And our politicians will, hopefully, realise that Ireland must make decisions for itself – as a state party to the Genocide Convention and an international law actor in its own right, with a responsibility to act to protect humanity.
Dr Maeve O’Rourke is a lecturer in Human Rights at the Irish Centre for Human Rights, University of Galway