On the 26th of January, the International Court of Justice ordered Israel to take prompt and decisive action to address the living conditions of the Palestinian people living in Gaza. This included the instruction to desist from “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction” as well as to take all measures to prevent the deprivation of access to adequate food and water.
The court ruling followed the submission on the 29th of december 2023 by the Republic of South Africa of an application to the International Court of Justice to institute proceedings against the State of Israel to institute proceedings under the Genocide Convention and to indicate of provisional measures. The application concerned acts and omissions by the State of Israel which include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. South Africa specifically requested the President of the Court to expedite the proceedings to protect the Palestinian people in Gaza by calling upon Israel immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention. Both Israel and South Africa and Israel are parties to the convention, having acceded respectively in 1950 and 1998.
South Africa accuses Israel of committing seven different kind of genocidal acts, which include deprivation of access to adequate food and water and the deprivation of access to adequate sanitation. On the 9th of October, for instance, Israel declared a “complete siege” on Gaza, allowing no electricity, no food, no water and no fuel to enter the strip. Under international pressure, Israel has allowed more humanitarian aid into the Gaza strip, but this aid is well below the 500 trucks a day allowed in before the conflict began, and according to the UN Secretary General, “the conditions for the effective delivery of aid no longer exist”. According to the Egyptian Red Crescent, the way in which Israel is conducting its campaign is creating massive obstacles to the distribution of humanitarian aid. South Africa argues that together with forced displacement, Israel’s conduct has been deliberately calculated to cause widespread hunger, dehydration and starvation. The South African application again cites the UN Secretary General when he pointed out that “four out of five of the hungriest people anywhere in the world are in Gaza”. During the hearing t the International Court of Justice in the Hague, the South African counsel stated that “more people in Gaza will die from hunger and diseases than from airstrikes”.
Israel, the South African counsel argued, has created conditions in which the population of Gaza are denied adequate shelter, clothes or sanitation, and in which clean water is all but gone, leaving behind an amount far below that required to safely drink, clean and cook. Israel continues to cut off water from Northern Gaza, and the north’s desalination plant is no longer functioning. Although Israel did retore a limited flow of water to the south, the damage to water infrastructure is such that most of the water system is in fact inoperable. South Africa quotes the World Food Programme as having stated that has reported that there is only 1.5 to 1.8 litres of clean water available per person per day, for all uses (drinking, washing, food preparation, sanitation and hygiene), which is far below the international ‘emergency threshold’ of 15 litres per day which can be temporarily accepted for war or famine-like conditions. The lack of water has a specific detrimental impact on lactating women, who require a supply of 7.5 litres of water a day for drinking, sanitation and hygiene to keep themselves and their babies healthy.
The recent attacks on water infrastructure and limitations on supply of water to the Gaza strip are a further development in a context in which Israel has for many years hindered the creation and repair of water installation and desalinisation plants in Gaza. This has resulted in a situation in which 95 per cent of water from Gaza’s sole aquifer was already unsuitable for consumption prior to 7 October 2023. Finally, South Africa has pointed to the intent by the Israeli army to flood the tunnels under Gaza with sea water, an act which risks creating an ecological catastrophe which would leave Gaza with no drinkable water.
In the field of sanitation and hygiene, South Africa argues that the forced displacement and concentration of internally displaced population groups into overfull shelters with high risks of epidemic diseases - for instance, the UNRWA’s shelters now have on average 486 people using a single toilet, while the WHO estimates that there is only one shower per 4,500 people. Palestinians are unable to maintain personal hygiene, with menstruating girls, women and newly born children being particularly impacted.
To build its case related to genocidal intent, South Africa refers to the fact that 15 United Nations Special Rapporteurs and 21 members of UN working groups have warned that what is happening in Gaza reflects a genocide in the making. This specifically includes “the deliberate creation of conditions that lead to a slow death”.
This intent, South Africa states, has been explicitly stated by the most senior representatives of the Israeli government and army.
Lawyers for Israel responded to the South African claims by stating that South Africa had put forward a profoundly distorted factual and legal picture. The entirety of the case, the lawyers stated, hinges on a deliberately curated, decontextualized and manipulative description of the reality of the hostilities. It is also impossible to understand the conflict in Gaza without understanding the nature of the threat that Israel is facing. If there have been acts that are genocidal, these have been perpetrated against Israel. Israel has the inherent right, acknowledge by states across the world, to defend itself and its citizens and to secure the release of the hostage taken by Hamas. The request by South Africa therefore to request the court to institute provisional measures is to deny Israel its inherent right to defend itself.
Given Israel’s history, Tal Becker, the legal counsel to the government of Israel stated, it was not surprising that Israel was one of the first countries to ratify the Genocide Convention when it was adopted, and to incorporate its provisions into its legal system. Israel, he stated, did not start or want this war. Israel is defending itself against Hamas, Palestinian Islamic Jihad and other organisations. Civilian suffering in this war is tragic as it is in all wars, and this is made more so by the strategy of Hamas to maximise civilian casualties, while Israel seeks to minimize them. Hamas has turned swathes of civilian infrastructure into a stronghold and has entrenched itself within the civilian population, making civilian suffering an integral part of its strategy. Therefore, Israel argues, the suffering of civilians is an integral part of this strategy.