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killing Palestinians in Gaza, causing them serious bodily and mental harm, inflicting on them conditions of life calculated to bring about their physical destruction, and the forcible displacement of people in Gaza. South Africa further alleges that Israel “has … failed to prevent or to punish: genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, contrary to Articles III and IV of the Genocide Convention”.
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23. Israel contends that South Africa has failed to demonstrate the prima facie jurisdiction of the Court under Article IX of the Genocide Convention. It first argues that there is no dispute between the Parties because South Africa did not give Israel a reasonable opportunity to respond to the allegations of genocide before South Africa filed its Application. Israel submits that, on the one hand, South Africa’s public statements accusing Israel of genocide and the referral of the situation in Palestine to the International Criminal Court and, on the other hand, the document published by the Israeli Ministry of Foreign Affairs, which was not addressed directly or even indirectly to South Africa, are not sufficient to prove the existence of a “positive opposition” of views, as required by the Court’s jurisprudence. The Respondent emphasizes that, in the Note Verbale from the Embassy of Israel in Pretoria to the Department of International Relations and Cooperation of South Africa, dated 27 December 2023, in response to South Africa’s Note Verbale, dated 21 December 2023, Israel had suggested a meeting between the Parties to discuss the issues raised by South Africa, but argues that this attempt to open a dialogue was ignored by South Africa at the relevant time. Israel considers that South Africa’s unilateral assertions against Israel, in the absence of any bilateral interaction between the two States prior to the filing of the Application, do not suffice to establish the existence of a dispute in accordance with Article IX of the Genocide Convention.
24. Israel further argues that the acts complained of by South Africa are not capable of falling within the provisions of the Genocide Convention because the necessary specific intent to destroy, in whole or in part, the Palestinian people as such has not been proved, even on a prima facie basis. According to Israel, in the aftermath of the atrocities committed on 7 October 2023, facing indiscriminate rocket attacks by Hamas against Israel, it acted with the intention to defend itself, to terminate the threats against it and to rescue the hostages. Israel adds moreover that its practices of mitigating civilian harm and of facilitating humanitarian assistance demonstrate the absence of any genocidal intent. Israel asserts that any careful review of the official decisions in relation to the conflict in Gaza made by the relevant authorities in Israel since the outbreak of the war, in particular the decisions made by the Ministerial Committee on National Security Affairs and the War Cabinet, as well as by the Operations Directorate of the Israel Defense Forces, shows the emphasis placed on the need to avoid harm to civilians and to facilitate humanitarian aid. In its view, it is thus clearly demonstrated that such decisions lacked genocidal intent.
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