In a significant development, the International Court of Justice (ICJ) will witness a major legal battle on Thursday as it is set to hear South Africa's genocide appeal against Israel in the ongoing war against Hamas in Gaza. South Africa moved the top UN court on December 29 accusing Israel of breaching its obligations under the 1948 Genocide Convention and called on judges to order an immediate suspension of Israeli military actions.
Israel has strongly denied the genocide allegations and said that South Africa's application lacks a factual and legal basis and constitutes a "despicable and contemptous exploitation of the Court". It also accused South Africa of supporting a terrorist organisation calling for the destruction of the Jewish country and called on the ICJ to reject the "baseless" claims.
The International Court of Justice (ICJ) in The Hague, also known as the World Court, will have two days of hearings this week on the case that is expected to take years to resolve. South Africa's filing alleged that Israel was violating its obligations under the treaty that was drafted after the Holocaust in Nazi Germany against the Jewish community.
During the preliminary hearings, lawyers from South Africa will explain to judges why the country has accused Israel of “acts and omissions" that are “genocidal in character” in the Gaza war and has called for an immediate halt to Israel's military actions. A decision on halting Israeli operations in Gaza is likely to take weeks.
What did South Africa say?
In its petition, South Africa accused Israel of committing genocide of Palestinians in the Gaza Strip and requested an emergency suspension of the devastating campaign. Both countries are parties to the Geneva Convention that obliges them to prevent and punish acts of genocide.
The treaty, drafted after the horrifying atrocities against Jews in Nazi Germany during World War II, defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". The event is known as the Holocaust, where millions of Jews were murdered through mass shootings and poison gas in concentration camps in Germany under Adolf Hitler's reign.
South Africa asked the court to issue provisional, or short-term, measures ordering Israel to stop its military campaign in Gaza, which it said were "necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people". South Africa cites Israel's failure to provide food, water, medicine and other essential humanitarian assistance to the Palestinian enclave.
The petition further said 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.
Israel has called the whole case absurd and accused Pretoria of playing "advocate of the devil" for Hamas. "The Hamas terrorist organization - which is committing war crimes, crimes against humanity and sought to commit genocide on 7 October - is responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them," said Israel's foreign ministry.
Why is South Africa accusing Israel of genocide?
The ruling African National Congress party has long compared Israel's policies in Gaza and the West Bank to its own history under the apartheid regime of white minority rule, which restricted most Blacks to “homelands” before ending in 1994. The party forged a close relationship with Yasser Arafat's Palestine Liberation Organisation (PLO) and has long defended the Palestinian cause.
Notably, the Israel-Hamas war broke out on October 7, when the militants entered Israel, killed over 1,200 people and took 240 people hostage. In a fierce retaliation, Israeli military campaigns have killed more than 23,000 Palestinians - most of them women and children - reduced much of northern Gaza into ruins and displaced almost the entire 2.3 million population. Israel has been under increasing international pressure for an urgent ceasefire in Gaza due to the rising death count.
In its written filing, South Africa says it went to the court “to establish Israel's responsibility for violations of the Genocide Convention; to hold it fully accountable under international law for those violations" and to "ensure the urgent and fullest possible protection for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of genocide.
The war strained relations between the two countries as South Africa passed a resolution to sever diplomatic ties with Israel and close the Israeli embassy until it stops its attack on Gaza, which was voted 248-91 in favour of the move. Israel recalled its ambassador to South Africa Eliav Belotserkovsky, back “for consultations” after South Africa accused the country of committing a genocide in the Gaza Strip.
What happens now?
Although Israel considers the UN and international tribunals unfair and biased, it is sending a strong legal team to the ICJ to defend its military operation launched in the aftermath of the October 7 attacks by Hamas. A ruling on the emergency measures is expected later this month.
A team of lawyers representing South Africa will present three hours of arguments in the wood-paneled Great Hall of Justice at the world court. Israel's legal team will have three hours on Friday morning to refute the allegations.
While the ICJ in The Hague, Netherlands is considered the UN's highest court for resolving disputes between countries, its rulings are sometimes ignored. In March 2022 the court ordered Russia to immediately halt its military campaign in Ukraine, which fell on deaf ears.
In this case, the court will not rule at that time on the genocide allegations, as it will only rule on those in its final judgment which is likely several years off. The ICJ's decisions are final and without appeal but the court has no way to enforce them. The world court has never adjudged a country to be responsible for genocide.
The closest it came was in 2007 when it ruled that Serbia “violated the obligation to prevent genocide" in the July 1995 massacre by Bosnian Serb forces of more than 8,000 Muslim men and boys in the Bosnian enclave of Srebrenica.
(with inputs from agencies)
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