With Intent to Destroy A Study of the Use of Evidence in South Africa v. Israel

Abstract

Since 7 October 2023, Israel has conducted a military operation in Gaza, resulting in widespread destruction, death, and humanitarian suffering. Whether these actions amount to genocide as outlined in the 1948 Genocide Convention has become the subject of intense debate, and in December 2023, the Republic of South Africa initiated proceedings before the International Court of Justice, requesting the Court to adjudicate whether Israel has acted in violation of its obligations under the Convention.

This thesis seeks to analyze South Africa and Israel’s legal claims and evidentiary strategies. To contextualize and evaluate the evidentiary material presented, the traditional hierarchy of legal sources, as detailed in Article 38(1) of the Statute of the ICJ, will be employed. Using this method makes it possible to situate the parties’ legal strategies within an established legal framework, thereby facilitating the understanding of the parties’ choices.

Additionally, the thesis applies a discourse-analytical approach to the case, primarily to the legal narratives constructed by the parties. Much of the tension in the case can be traced to the history of colonialism. South Africa, itself once subjected to colonial rule and apartheid, draws parallels between its past and what it perceives as Israel’s present systematic oppression of the Palestinian people. Postcolonial legal theories are applied as part of the study to examine this aspect of the case and how the parties’ narratives are articulated to align with their historical roots. The purported genocide in Gaza has also been a divisive geopolitical issue, with the UN adopting several resolutions demanding that Israel respects international law and numerous countries expressing concern that genocidal acts might have taken place. Other states maintain that Israel only exercises its legitimate right to self-defense. The controversy surrounding the case and the geopolitical implications of it presents a valuable opportunity to examine the intersections between international law and international politics.

South Africa and Israel’s evidentiary strategies are found to be profoundly impacted by their respective positions of power and geopolitics, with South Africa primarily relying on third-party sources such as human rights organizations and media, due to its inability to access Gaza. Many of these sources, such as the Gaza health ministry, have also had their legitimacy contested by, e.g., Israel and the US, complicating their evidentiary value. Israel, on the other hand relies almost exclusively upon evidence gathered by its government institutions, without the need to further justify the validity of these. This asymmetry illustrates how seemingly neutral legal mechanisms, such as the use of evidence, are deeply affected by geopolitics and power structures.