Keys to South Africa’s genocide case against Israel at the United Nations International Court of Justice

Pretoria has asked international judges to issue interim measures for an immediate halt to military operations in Gaza

Israel-Hamas War
Members of the Security Council vote in favor of a resolution calling for humanitarian pauses between Israel and Hamas, on December 12, 2023 in New York.Pacific Press (Pacific Press/LightRocket via Ge)
Isabel Ferrer

South Africa has asked the United Nations International Court of Justice (ICJ) to open proceedings against Israel for allegedly violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and has asked the judges to issue interim measures for an immediate halt to military operations in Gaza. Both countries are among the 152 state parties to the Genocide Convention, and South Africa hopes to prove that Israel has taken actions to destroy the Palestinian population that go beyond legitimate self-defense.

The ICJ has set two hearings for Thursday and Friday in The Hague, its official seat. The Israeli government has already described the complaint as “absurd blood libel” and intends to appoint a legal team to defend itself against the accusations. Interim injunctions are usually granted quickly and, at this stage, the judges only have to decide whether there is a plausible argument that genocide may be being committed. South Africa will have to prove that this is the case when it comes to the merits of a process that may drag on for several years. Here are some keys to the lawsuit against Benjamin Netanyahu’s government.

Why is South Africa able to file the lawsuit?

The Genocide Convention obliges countries to prevent genocide and provides for the jurisdiction in such cases of the ICJ, a United Nations court that resolves disputes between member states. On December 29, South Africa alleged in its lawsuit that “acts and omissions by Israel [...] are genocidal in character” as they are committed with the intent “to destroy Palestinians in Gaza” as a part of the broader Palestinian national, racial and ethnic group. South Africa, which is seeking interim measures for the protection of the Palestinians, hopes to demonstrate that the dispute covers both its own obligations and those of Israel, which it alleges is in breach of them. To this end, South Africa includes in its request to the ICJ the damage caused by the Israeli military offensive since October 7, 2023, and points out that “more than 21,110 Palestinians have been killed in Gaza [the figure has since risen to more than 23,300], including more than 7,729 minors [now more than 10,000]; more than 7,780 missing; and more than 55,243 [now more than 59,000] Palestinians injured.” It further states that “Israel has razed large areas of Gaza and damaged or destroyed more than 355,000 Palestinian homes.”

While condemning the October 7 Hamas attacks that killed 1,200 people in Israel, and the taking of hostages, the petition notes that “no armed attack against a state, however serious, justifies violations of the Genocide Convention.”

What else is South Africa asking the ICJ to do?

In addition to the cessation of Israeli military operations in Gaza, South Africa requests that “the deprivation of access to adequate food and water” of the population be prevented. That Israel refrains from taking any action that might aggravate or escalate the dispute, and that it ensure that persons “under its control do not publicly and directly incite genocide.” Should they do so, they must be held accountable under the Convention.

To illustrate this, numerous statements by Israeli politicians, senior officials and VIPs are included. These include, among others, comments by Nissim Vaturi, a member of Prime Minister Benjamin Netanyahu’s conservative Likud party, who called for “erasing the Gaza Strip from the face of the earth” after the October 7 attacks. Also quoted is Israeli General Ghassan Alian, who said in reference to Gazans and Hamas: “Human animals must be treated as such. There will be no electricity and no water [in Gaza], there will only be destruction. You wanted hell, you will get hell.”

Are there precedents for similar claims before the ICJ?

South Africa has followed Gambia’s lead in the case against Myanmar, two countries that are also members of the Genocide Convention. According to Gambia, the Myanmar military carried out “ethnic cleansing operations” against the Rohingya minority in 2016 with the intention of destroying them as a group. The Rohingya are a stateless, predominantly Muslim, ethnic Indo-Aryan community living mostly in western Myanmar, on the border with Bangladesh. The ICJ recognized Gambia as the “real claimant” in the case.

For Cedric Ryngaert, professor of international law at Utrecht University, “South Africa wants to show that it can call Israel to account, but any country that is a signatory to the Convention is obliged to prevent genocide.” In a telephone conversation, he recalls that “Gambia received the support of the Organisation of Islamic Cooperation, which groups 56 countries, in the case of Myanmar. South Africa, a country of the Global South, is acting alone; for now.” Another precedent is that of the Netherlands and Canada, which in 2023 filed “a complaint against Syria for torture” with the ICJ.

Ryngaert explains of the Syrian case: “Then it was alleged that the regime of Bashar al-Assad had tortured thousands of civilians in violation of the U.N. Convention against Torture (1984), and we see that there is already a pattern of action by third countries to enforce international humanitarian law.” The jurist attributes this development to non-compliance “with many norms relating to human rights and the law of armed conflict,” and that if the ICJ rules, “it is a different matter because its decisions exert pressure on countries.”

How has Israel responded?

In the face of the accusations, Israel has invoked its right to defend itself and maintains that its military operations comply with international law. Israeli government spokesman Eylon Levy has stated that unprecedented measures have been taken to reduce the number of civilian casualties. In a statement to British broadcaster Sky News, Levy said on December 28: “We are trying to focus on Hamas and that is why we are encouraging the evacuation of the population to the designated humanitarian areas.” Prior to South Africa’s move, the Israeli government had indicated that the crimes perpetrated by Hamas on October 7 could constitute genocide, “such as the killing of some 1,200 Israelis and foreign nationals, and the wounding, torture and mutilation of people.”

According to William Schabas, professor of international law at Middlesex University in the U.K.: “Israel will argue that it is not committing genocide, it is acting in self-defense and has that right. But the ICJ does not have to decide at this stage whether there is genocide going on. What the judges have to do is to conclude whether there is a plausible argument that it may be being committed in order to issue the precautionary measures,” he says by telephone.

“The committing of genocide will have to be proven by South Africa when the time comes,” Schabas stresses. After the interim measures, which may come in a matter of weeks, the deadlines will lengthen. South Africa will have to present its case files. Israel will in all likelihood then respond by challenging the jurisdiction of the ICJ in a preliminary objection debate that does not address the matter of genocide per se. Then, if the case progresses, it will be possible to go into the merits of the case. A ruling may come in two or three years, or even more.

In the case of interim measures, will Israel comply with them?

According to Professor Schabas: “It depends on what they ask for. South Africa is asking Israel to stop its military activities in Gaza. If the judges order that, I suspect it won’t do it.” He does think it is feasible that medicine, food, water, etc. will be allowed into the Gaza Strip... “Although it is also possible that they will say they are already doing that. Or that they will do it from now on.” What is clear are the repercussions of a possible Israeli refusal to comply with the ICJ. “Countries like Canada, the Netherlands and others, which cooperate with Israel, will be under pressure to limit their material or political assistance. It will be very difficult for them because they will have to honor the ICJ order.”

Ryngaert agrees: “If the ICJ says genocide may be taking place sending arms, for example, could make them complicit. Precautionary measures have been requested and do not address the merits of the case, but it would be a sign.” The expert concludes that genocide “can be criminalized, even if it has not been committed, under the concept of incitement; but proving genocidal intent is not easy.”

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