Page:South Africa v. Israel (Order of 26 January 2024).pdf/11

 20. Since South Africa has invoked as the basis of the Court’s jurisdiction the compromissory clause of the Genocide Convention, the Court must also ascertain, at the present stage of the proceedings, whether it appears that the acts and omissions complained of by the Applicant are capable of falling within the scope of that convention ratione materiae (see Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 219, para. 29).

21. South Africa contends that a dispute exists with Israel relating to the interpretation, application and fulfilment of the Genocide Convention. It asserts that, prior to the filing of its Application, South Africa repeatedly and urgently voiced its concerns, in public statements and in various multilateral settings, including the United Nations Security Council and General Assembly, that Israel’s actions in Gaza amount to genocide against the Palestinian people. In particular, as indicated in a media statement issued on 10 November 2023 by the Department of International Relations and Cooperation of South Africa, the Director General of the Department met with the Ambassador of Israel to South Africa on 9 November 2023 and informed him that, while South Africa “condemned the attacks on civilians by Hamas”, it considered Israel’s response to the attack of 7 October 2023 to be unlawful and it intended to refer the situation in Palestine to the International Criminal Court, calling for investigation of the leadership of Israel for war crimes, crimes against humanity and genocide. Furthermore, at the resumed 10th emergency special session of the United Nations General Assembly on 12 December 2023, at which Israel was represented, the South African representative to the United Nations stated specifically that “the events of the past six weeks in Gaza have illustrated that Israel is acting contrary to its obligations in terms of the Genocide Convention”. The Applicant considers that the dispute between the Parties had already crystallized at that time. According to South Africa, Israel denied the accusation of genocide in a document published by its Ministry of Foreign Affairs on 6 December 2023 and updated on 8 December 2023, entitled “Hamas-Israel Conflict 2023: Frequently Asked Questions”, stating in particular that “[t]he accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant”. The Applicant also mentions that, on 21 December 2023, the Department of International Relations and Cooperation of South Africa sent a Note Verbale to the Embassy of Israel in Pretoria. It claims that, in this Note Verbale, it reiterated its view that Israel’s acts in Gaza amounted to genocide and that South Africa was under an obligation to prevent genocide from being committed. The Applicant states that Israel responded by a Note Verbale dated 27 December 2023. It submits however that Israel, in that Note Verbale, failed to address the issues raised by South Africa.

22. The Applicant further submits that at least some, if not all, of the acts committed by Israel in Gaza, in the wake of the attack of 7 October 2023, fall within the provisions of the Genocide Convention. It alleges that, in contravention of Article I of the Convention, Israel “has perpetrated and is perpetrating genocidal acts identified in Article II” of the Convention and that “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention”. The acts in question, according to South Africa, include