Addressing the International Court of Justice, Professor Vaughan Lowe KC said:

First, some will ask why South Africa does not seek any court order against Hamas. This case concerns Israel’s action in Gaza, which is territory that, three weeks ago in Resolution 2720, the Security Council stressed is “an integral part of the territory occupied in 1967” by Israel. As the court will understand, Hamas is not a State and cannot be party to the Genocide Convention; and it is not a party to these proceedings. There are other bodies and processes that can address the questions of steps to be taken in respect of past atrocities and against other actors; and they are no doubt doing so. But as a matter of law, under the Convention South Africa cannot request an order from this court against Hamas.

Secondly, South Africa understands that not all violence constitutes genocide. Acts of ethnic cleansing, collective punishment, the targeting of civilians, attacks on hospitals, and other war crimes are all unlawful: but they do not always violate the Genocide Convention. Genocide requires an intent to destroy, in whole or in part, a national, ethnical, racial or religious group. But the fact that what Israel is doing in Gaza may also constitute war crimes or crimes against humanity is no defence to a charge of genocide.

South Africa has set out its request for relief in paragraph 111 of its application, and its request for provisional measures in paragraph 144.

The specific provisional measures requested by South Africa

The reasoning behind the requests is pragmatic. The first two paragraphs of the provisional measures request call for the suspension of Israel’s military operations in and against Gaza.

Israel’s continuing operation in Gaza since the 7 October attack is the focus of this case. The Agent has recalled the fact that South Africa has condemned the 7 October attack. Israel says that Palestine and Palestinians are not its target, and that its aim is to destroy Hamas. But months of continuous bombing, flattening entire residential blocks and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be man-hunt for members of Hamas. It is an indiscriminate attack, killing, maiming and terrorizing the entire population of Gaza with no regard to questions of innocence or guilt, obliterating the homes and cities in which they live, and destroying any practical possibility of their return to make their homes amidst the rubble.

Israel’s action both attacks Palestinians in Gaza directly, and also prevents humanitarian relief reaching them. Palestinians face death from the continuing bombardments and shootings, and death from starvation and disease, which is even more indiscriminate, but usually slower.

In recent days the United States has said again that far too many civilians are being killed; and the UN Secretary General, the United Nations Under Secretary for Humanitarian Affairs and the Commissioner-General of UNRWA have asserted that it is imperative to halt military operations in order to enable the effective delivery of humanitarian relief. Even yesterday, the UN reported that repeated refusals by Israeli authorities to allow UN aid teams to deliver desperately needed humanitarian relief inside Gaza have effectively cut off five hospitals in the north from access to “lifesaving medical supplies and equipment”.

That is why South Africa has requested an order for the immediate suspension of Israel’s military operations in and against Gaza. It is the only way to secure the humanitarian response and avoid yet more unnecessary death and destruction. [Continue reading…]

Vaughan Lowe is a practising Barrister at Essex Court Chambers, mainly in the field of international law, with cases in the International Court of Justice, the ECJ, the ECHR, the ITLOS, the Iran-US Claims Tribunal, ad hoc Arbitral Tribunals and courts in England and Hong Kong, among others.