On Thursday, January 11, 2024, and Friday, January 12, 2024, the International Court of Justice (ICJ) in The Hague conducted open hearings regarding the lawsuit filed by South Africa against Israel. This case, initiated on December 29, 2023, concerns accusations against Israel of breaching the Genocide Convention in its military actions in Gaza.
The allegations of genocide against Israel, brought forth by South Africa in the wake of a violent escalation in the Israeli-Palestinian conflict, present a deeply complex and contentious issue for international law and diplomacy. The military response by Israel in Gaza, which has resulted in over 24,000 casualties, predominantly women and children, has raised grave concerns and accusations of genocidal intent.
The International Court of Justice (ICJ), commonly referred to as the World Court, represents the premier legal organ of the United Nations and is tasked with resolving disputes among its member states. It operates independently from the International Criminal Court (ICC), which is responsible for trying individuals in criminal proceedings.
Composed of 15 judges, each serving a term of nine years, the ICJ’s judges are elected by both the United Nations General Assembly (UNGA) and the Security Council (UNSC). Decisions made by the court are final and obligatory for member states, with no option for appeal. However, the enforcement of these rulings relies on the UNSC’s authority and cooperation.
At the core of South Africa’s allegations is the accusation that Israel’s actions, both active and passive, constitute genocide as defined by international law. Genocide, a term fraught with historical and moral weight, is legally defined as acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. These acts include killing or causing serious harm, deliberately inflicting conditions calculated to bring about physical destruction, imposing measures to prevent births, and forcibly transferring children of the group to another group.
The case against Israel hinges on the interpretation of these criteria in the context of the Israeli-Palestinian conflict. South Africa’s submission points to both the physical actions of the Israeli military, such as air strikes, and alleged failures, such as the purported lack of protection for Palestinian civilians. Additionally, the case emphasizes Israeli public rhetoric, including statements by Prime Minister Benjamin Netanyahu, as evidence of a “genocidal intent.”
South Africa is urging the International Court of Justice (ICJ) to take swift action to halt additional violations by Israel in the Gaza Strip. They are advocating for the application of “provisional measures,” which are essentially interim orders that can be enforced prior to the commencement of the main legal proceedings.
The rationale behind this request is to safeguard against ongoing and potentially irreversible damage to the rights of the Palestinian people under the Genocide Convention. South Africa contends that these rights continue to be breached without any accountability.
The Israeli government vehemently dismissed the genocide allegations as a “blood libel,” deeming South Africa’s case as lacking legal substance and labeling it a “despicable and contemptuous exploitation” of the court. Israel’s Foreign Ministry condemned the accusations, also alleging South Africa’s collaboration with Hamas, the group responsible for the Oct. 7 attack in southern Israel which sparked the current conflict.
Israel maintains that its military operations comply with international law, targeting only Hamas and not the Gaza residents. The government asserts its efforts to minimize civilian casualties and to facilitate humanitarian aid access to Gaza.
As both Israel and South Africa are parties to the Genocide Convention, South Africa is authorized to initiate the case. The effectiveness of this legal action in stopping the conflict is uncertain, given the International Court of Justice’s history of issuing legally binding orders that may not always be adhered to. For instance, in March 2022, despite the court’s order to Russia to cease hostilities in Ukraine, the conflict persisted.
South Africa’s foreign ministry has expressed deep concern about the civilian suffering in Gaza due to the Israeli offensive, highlighting reports of potential international crimes, including crimes against humanity, war crimes, and actions that could constitute genocide as defined in the 1948 Genocide Convention.
Previously, South Africa’s president accused Israel of war crimes and acts “tantamount to genocide.” The country has also advocated for the International Criminal Court to investigate Israeli actions in Gaza. The ICC, different from the International Court of Justice, prosecutes individuals for serious crimes like war crimes and genocide, while the ICJ resolves disputes between nations.
The Palestinian Foreign Ministry in the Israeli-occupied West Bank has endorsed South Africa’s stance, calling for the ICJ to protect Palestinians and urging Israel to stop its actions against them. Balkees Jarrah from Human Rights Watch highlighted the significance of South Africa’s case at the ICJ in examining Israel’s actions in Gaza under the 1948 Genocide Convention. Jarrah clarified that this case is not a criminal proceeding against individuals but emphasized its potential to boost support for impartial justice at the ICC and other credible forums.