UN top court to rule on emergency measures against Israel in Gaza genocide case brought by South Africa

The ICJ judges will decide on Friday whether to order a provisional halt on the military offensive in the Palestinian enclave, which has killed nearly 26,000 people since October

South Africa Israel ‘genocidal intent’
Israel's legal advisor Tal Becker (center) at the International Court of Justice in The Hague on January 12, 2024.REMKO DE WAAL (AFP)
Isabel Ferrer

The United Nations International Court of Justice (ICJ) will decide on Friday whether to issue provisional emergency measures against Israel’s offensive in Gaza after South Africa accused the Jewish state of “genocidal intent.” The decision — surrounded by political tension — is one of the most complicated that the court has ever faced.

In the case it filed in December, South Africa asked the judges “as a matter of extreme urgency” to impose so-called provisional measures to protect Palestinians in Gaza while the core of the case proceeds slowly through the court, a process likely to take years. South Africa argued that Israel’s offensive in Gaza goes beyond legitimate self-defense. ICJ rulings are binding, and although the U.N. top court cannot enforce compliance, it does exert pressure on the states involved and their allies.

In this phase of the process, the ICJ only has to evaluate whether it is plausible that a genocide is being committed in the Gaza Strip. Israel categorically rejects the accusation, but Israeli Prime Minister Benjamin Netanyahu convened a crisis cabinet on Thursday to discuss the possibility that the U.N. top court orders a stay on Israel’s offensive in Gaza.

South Africa has called on the court to issue nine provisional measures, arguing that Israel has violated the Convention on the Prevention and Punishment of Genocide (1948), of which both countries are members. Article II describes genocide as any acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The Genocide Convention does not prohibit the use of force in general, but focuses on specific acts that are defined as genocidal.

In its 86-page request for provisional measures, South Africa claims that “Israel has perpetrated and is perpetrating genocidal acts identified in Article II. Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza.” Nowhere is safe in Gaza, the document states. “Palestinians in Gaza are being killed at a rate of approximately one person every six minutes,” it adds, pointing out that Gaza is “one of the most densely populated places in the world.”

South Africa also argues that the statements of several Israeli politicians and officials show “genocidal intent” against the Palestinian people. It points to comments made by Israeli Defense Minister Yoav Gallant, who said: “We are fighting animals and we are acting accordingly,” and also mentions Nissim Vaturi, from Netanyahu’s conservative Likud party, who posted that Israel had a common goal: “erasing the Gaza Strip from the face of the earth.”

In view of these statements and the destruction in Gaza, South Africa has called on the ICJ “to protect the rights [of Palestinians] invoked herein from imminent and irreparable loss.”

South Africa and Israel presented their arguments to the ICJ in two consecutive hearings, held on January 11 and 12, in The Hague. The lawyer representing South Africa, Blinne Ní Ghrálaigh, argued that it was “the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate, so far vain hope that the world might do something.”

Israel, for its part, denied it had genocidal intent and claimed it was acting in self-defense against Hamas, which is considered a terrorist group by the United States, the EU and the United Kingdom. For Israel, ending the offensive would only benefit Hamas, which killed 1,200 people in its attack on southern Israel on October 7. It also argued that South Africa’s accusation was “false and grossly distorted.”

On Thursday, Hamas stated that it was willing to agree to a ceasefire if the ICJ rules in favor of provisional measures, according to the Spanish news agency Efe. “In case The Hague-based ICJ issues a ruling to ceasefire, the Hamas movement will abide by it as long as the enemy does the same,” it said in a statement, adding that it would also release Israeli hostages “if the occupying state releases the Palestinian detainees from Israeli jails.”

Nowhere in Gaza is safe

According to the U.N., more than half of Gaza’s population is living in overcrowded conditions in Rafah, in the south of the enclave. The Israeli offensive, now concentrated in the south, has forced more than 50% of the Gazan population — an estimated 2.2 million people — to flee to Rafah. But Gazans are not safe there either, according to the U.N.

“The IDF [Israeli Defense Force] continues to shell areas that it has unilaterally designated as ‘safe’ for evacuation, reinforcing that nowhere in Gaza is safe [...] and raises grave alarm of further escalation of the hostilities in Rafah,” the U.N. Human Rights Office (OHCR) warned on Wednesday.

The Gaza Health Ministry — which is controlled by Hamas — reported on Thursday that 200 people had died in the past 24 hours, bringing the total death toll in the Gaza Strip to 25,900. The number of people wounded since October 7 is now more than 64,110, according to Gazan authorities.

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