South Africa on December 28, 2023, moved United Nations top court - The International Court of Justice (ICJ), accusing Israel of committing genocide on Palestine. Pretoria's plea for an urgent hearing seeking interim measures for relief in Gaza begins today.
The hearing before the United Nations’ top court is significant amid the rising death toll in the Israel-Palestine war. Parallelly, South Africa also moved the International Criminal Court (ICC) urging it to probe Israel for “war crimes”.
The Israeli Defense Force said its war was against Hamas and not the people of Gaza ahead of the two-day public hearing before the International Court of Justice (ICJ) at The Hague starting January 11. However, international human rights advocate Francis Boyle said South Africa has a strong case and is confident it “will win a cease-and-desist order against Israel for genocide against the Palestinians”.
Boyle’s confidence stems from widespread opinion by experts who claim Israel’s chances of justifying its actions in Gaza are slim. Incendiary claims by Israeli leaders have given impetus to South Africa’s claim of genocide. Israeli PM Benjamin Netanyahu on December 26, 2023, said, “We are not stopping. We are continuing to fight, and we are deepening the fighting in the coming days, and this will be a long battle and it is not close to being over.”
In 2019, the then ICC Prosecutor held that “there is a reasonable basis to believe” that the Israeli army committed “war crimes… in the context of the 2014 hostilities in Gaza”, in particular. More recently in October 2023, the incumbent ICC Prosecutor confirmed that his “Office has an ongoing investigation with jurisdiction over Palestine… [a]nd this includes jurisdiction over current events in Gaza and also current events in the West Bank”.
South Africa said its “experience” of a “system of apartheid” had prodded its government to challenge Israel’s war on Palestine.
Since October 7, 2023, more than 23,000 Palestinians—including almost 10,000 children—have been killed and 59,100 injured in the Israel-Palestine war while the death toll in the Jewish state stood at 1,139.
Israel has picked British lawyer Professor Malcolm Shaw to fight its case while South Africa’s legal team includes John Dugard, Adila Hassim, Tembeka Ngcukaitobi, Max Du Plessis, Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, British lawyer Vaughan Lowe and Irish lawyer Blinne Ní Ghrálaigh. Ex-Supreme Court judge Aharon Barak (Israel) and Dikgang Ernest Moseneke (South Africa) will join the panel of 15 judges as ad hoc judges in the two-day proceedings.
Accusations of genocide against Israel have gained attention worldwide, considering the Holocaust or Shoah which claimed the lives of six million Jews in Europe during World War II was the impetus to the 1948 Geneva Convention of which both countries are signatories.
BOOM breaks down the details of the case.
Israel’s war on Palestine “act of genocide”: South Africa
South Africa on December 28, 2023, accused Israel of genocide in its case before the International Court of Justice. “The destruction wrought by Israel is so extreme that ‘Gaza is now a different colour from space. It’s a different texture’”, the 84-paged brief read.
In its 84-page affidavit, available on the ICJ website, Pretoria contends that the “acts of genocide” must be placed in “the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”
South Africa contended that Israel's action in Gaza breached its obligations under the 1948 Genocide Convention of which both countries are signatories. South Africa further alleged that the Jewish state’s actions “are genocidal” in character since they intend to bring about the destruction of a “substantial part” of the Palestinian population.
“Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent,” the brief read.
Claims of genocide “bloody libel”: Israel
Israel’s Foreign Affairs Ministry on December 29, 2023, described South Africa’s plea as “blood libel” and argued that its claim “lacks both a factual and a legal basis and constitutes despicable and contemptuous exploitation of the Court.” Israel denied claims of genocide and further contended that South Africa’s accusations were not only “wholly unfounded” but also “morally repugnant” and “antisemitic”.
However, unlike previous times, Israel is set to counter the allegations against them.
An Axios report said that the aftermath of South Africa’s proceedings in the UN court has prompted Israel’s Foreign Ministry to lean on friendly nations to step up in support. Israeli diplomats have been instructed to press officials in their host countries to speak against South African claims.
Why is the ICJ hearing important?
Constituted in June 1945, the International Court of Justice (ICJ) is the judicial arm of the United Nations (UN). According to Reuters, usually, cases filed before the UN’s highest court take years to go to trial. However, like in the past, emergency hearings on provisional measures have been known to be held within weeks of a filing and orders given in a timely fashion as well.
The orders of the ICJ are final, cannot be appealed, and are binding on its member states. However, the orders are often found to be toothless since there is a general difficulty in enforcing them. So, if ICJ rules against Israel then it may at best hurt the Jewish state’s international reputation.
For example, in February 2022, Ukraine moved the ICJ accusing Russia of genocide in the background of the Russia-Ukraine War. Russia had boycotted the hearing and preferred to submit a written statement. On March 16, 2022, the ICJ in a 13-2 majority ruled that Russia must “immediately suspend the military operations” against Ukraine.
Two years later, the Russia-Ukraine War is still on.