South Africa’s Legal Quest at the World Court Could Further Banish Israel

Early into the Israel-Hamas war: a burst water pipe amid the annihilation of Gaza, Oct. 10, 2023. South Africa has filed a lawsuit with the International Court of Justice alleging that Israel is intentionally committing genocide in Gaza. The bar is high to prove it, experts say. MOHAMMED BABA/MSF

By Damilola Banjo via PassBlue

The Genocide Convention was codified in 1948 in response to the atrocities committed against Jewish people and others during World War II. Seventy-five years later, predominately Jewish Israel is facing the International Court of Justice on allegations of intent to commit genocide against its historical neighbor, Palestine.

Israel is ready to defend itself before the top judicial organ of the United Nations, also known as the World Court,  said Eylon Levy, spokesperson for the Israeli government. In a video, he said that Hamas’s terrorist actions of Oct. 7, which killed 1,200 people in southern Israel, is an act of genocide and that Israel’s retaliation is an attempt to “thwart Hamas’s systematic abuse of its civilian population.”

Levy accused South Africa, which has filed the case of alleged genocide committed by Israel on Palestinians, of  “advocating for the devil,” adding that Pretoria, the capital, is aiding and abetting genocide.

South Africa initiated the suit, titled “proceedings instituted by South Africa against the State of Israel,” on Dec. 29, and a live-streamed hearing on the first leg of the application is scheduled for Thursday and Friday, Jan. 11-12 at The Hague-based court, which is tasked to adjudicate cases between states. Pretoria is asking it to declare that Israel and its military are committing genocide in Gaza, the Palestinian enclave run by Hamas and since Oct. 7, the target of intense Israel Defense Forces’ aerial and land bombardment to wipe out the terrorists.

Up to 22,000 people in Gaza have been killed in the continuing military ground and aerial sweep, most of the victims women and children, according to the Hamas-run health ministry.

In its court filing, South Africa argues that the government of Israel and its military actions in Gaza are breaching the Convention on the Prevention and Punishment of the Crime of Genocide, to which both Israel and South Africa are signatories. In the 84-page application filed before the court, Pretoria said the “acts and omissions by Israel” are “genocidal in character” because they aim to destroy a “substantial part of the Palestinian national, racial and ethnical group.”

Pretoria argues that the constant attacks on Gaza’s infrastructure, including water systems, schools and hospitals, are a deliberate attempt by Israel to wipe out Palestinian life in Gaza. Lex International, a Geneva-based legal advocacy group, said in a briefing published on Jan. 8 that proving intent of genocide “will be the greatest challenge for South Africa if the case progresses.”

It will be potentially easier to prove the underlying acts, the group added, such as killing or seriously harming Palestinians as a national/racial group and, as the Convention says, “deliberately inflicting conditions of life calculated to bring about [their] physical destruction in whole or in part.” Yet intentional starvation of Gazans would meet this threshold, Lex noted.

Israel’s attacks have also destroyed Palestinian heritage sites like the Great Omari Mosque, originally a fifth-century Byzantine church, and the Church of Saint Porphyrius, founded in 425 A.D. and believed to be the third-oldest church in the world, to wipe out Palestinian history. Professionals, including journalists, teachers and doctors, have been killed in Israel’s retaliatory attacks in Gaza.

“The Israeli army — erecting the Israeli flag over the wreckage of devastated Palestinian homes, towns and cities, including in Gaza City’s Palestine Square itself, and spurred on by calls from within the Israeli government and without to ‘flatten Gaza’ and re-establish Israeli settlements on the rubble of Palestinian homes — is destroying the very fabric and basis of Palestinian life in Gaza,” Pretoria argues in its application to the ICJ.

Numerous experts told PassBlue, however, that South Africa has created a Herculean legal obligation for itself in presenting this case, which was spurred by civil society groups but has full government backing. The ICJ has set an extremely high threshold for finding that a state has committed genocide, and the burden of evidence required cannot be derived from a pattern of events, said Stefan Talmon, a professor of law and director of the Institute for Public International Law at the University of Bonn, Germany.

South Africa must show clear evidence of Israel’s intent to wipe out the Palestinian population in Gaza in part or in whole, as the Convention requires. Talmon said that related evidence will not be enough.

“The high number of casualties does not automatically indicate that there is an intention to destroy a population or people in whole or in part,” Talmon said in an interview. “Israel is not the aggressor. In terms of international law, Israel is exercising its right to self-defense. It might overstep the limits of that right, but Israel is acting in self-defense.”

Israel’s position and that of its allies, particularly the United States, insist that Israel’s response to Gaza for the Hamas massacre is a matter of “self-defense.” This is a major argument that South Africa’s case must quash to succeed, a South African diplomat told PassBlue. Israel cannot claim self-defense when violence originates from a territory that it has absolute control over as an occupying power, the diplomat said, elaborating: “The fact that this happened was a failure on their part [Israel] — in terms of the control — but it wasn’t a foreign force or another country that acted. They exerted sovereignty over that area.”

Even if South Africa does not win the case — although that is the goal — one potential gain would be to open discussions on upholding and reinforcing international law.

Regardless of the high bar faced by South Africa and Israel in the case, an ICJ ruling on allegations of genocide in Gaza has inspired hope among Palestinians and their sympathizers that it could lead to a ceasefire in the embattled enclave. South Africa is seeking emergence measures requesting that Israel immediately stop its bombardment in Gaza and prevent further genocide; such a judgment by the court could happen within a month of the hearings. (A final ruling could take years.)

A ceasefire has been the bane of recent divisions in the UN Security Council, with members settling for euphemisms, such as “humanitarian pauses,” to authorize resolutions to fast-track essential aid into Gaza, where the population is at risk of famine. (The US refuses to allow wording calling for “ceasefire” to be used in Security Council resolutions on Gaza because Israel says it would be “a victory for Hamas.”) Arab and many other nations continue to demand a ceasefire amid towering civilian casualties in the enclave since the war began.

President Recep Tayyip Erdogan of Turkey compared Israeli Prime Minister Benjamin Netanyahu with Adolf Hitler.

Is what Netanyahu doing in Gaza “any less than what Hitler did?” he asked.

Netanyahu tweeted back: “Erdogan is committing genocide of the Kurds, has broken the world record for imprisoning journalists who critique his government, and is the last person who can morally lecture us.”

Owiso Owiso, an independent international law expert who writes for Just Security, a legal forum with a global audience, said that the ICJ finding may not result in a much-needed ceasefire that would enable a higher volume of humanitarian aid to flow into Gaza, even if the court sides with South Africa on its application.

The ICJ’s ruling would be a legal stamp of indictment against Israel, yet judicial proceedings alone rarely result in such drastic changes to such politically charged and violent situations, Owiso said. However, he and other experts told PassBlue that South Africa’s application would further highlight to the world the “unlawfulness” of Israel’s military strategy in Gaza and give the war’s critics strong legal backing that the military operations are illegal.

“Legal proceedings, more so by an international court, have a way of lifting the veil and laying bare unsavory state conduct, political hubris, and state propaganda,” Owiso said. “This in itself is impactful, regardless of whether the parties respect judgments. So, whatever the outcome of the ICJ proceedings and regardless of Israel’s reaction to the proceedings, a legal spotlight shall be shone on Israel’s conduct in Gaza by the fact of the ICJ undertaking legal scrutiny of Israel’s conduct.”

The ICJ has considered genocide in its caselaw on numerous occasions in both contentious cases and, in one instance, an advisory opinion, according to Lex International. The court has yet to hold a state responsible for the commission of genocide. In 2007, the court concluded that Serbia had failed to prevent genocide at Srebrenica in Bosnia and Herzegovina. A case based on the Genocide Convention brought by Ukraine against Russia in 2022 for its full-scale invasion against its neighbor is ongoing.

In the three months of war, northern Gaza has been completely leveled, while the southern half, where civilians have been forced to seek refuge, has witnessed increased bombing since the Israel Defense Forces started their “surgical” ground operations to go inch by inch, searching for Hamas militants to kill. Reports showed evidence that Israel dropped hundreds of lethal bombs in densely populated southern Gaza. The US has shipped over 5,000 MK-84 munitions, a 2,000-pound bomb that experts say is contributing to the exorbitant civilian death toll.

The UN on Jan. 8 confirmed that the number keeps rising, even as Israel contends it is being more strategic to avoid civilian deaths. A recent casualty included another UN staffer, bringing the total number of dead in that category to 146 since Oct. 7. Approximately 1.9 million people have been displaced in Gaza.

A victory for South Africa at the ICJ could also mean that the US would be forced to acknowledge that war crimes are indeed happening in Gaza, said Ottilia Anna Maunganidze, head of special projects in the executive director’s office  at the Pretoria-based Institute for Security Studies.

John Kirby, the US National Security Council spokesperson, described the lawsuit as “meritless, counterproductive and completely without any basis in fact whatsoever.”

Whether the court forces the US to change course in the UN Security Council regarding its staunch support of Israel and its military will not be easy. (The US has vetoed two humanitarian-aid resolutions for Gaza since Oct. 7, as well as a proposed amendment. Most recently, it abstained from a relevant resolution.)

The  Council, however, is required to enforce ICJ judgments, especially if an indicted party refuses to implement the judgment, but the Council has never enforced an ICJ judgment, Lex said. The veto power of the five permanent members and toughening divisions among those members make such a possibility even more remote. But the Council is not the only avenue for enforcing an ICJ judgment, Owiso said.

States signed up to the Genocide Convention are legally obligated to enforce such rulings, and although their actions may not force Israel to comply, they could have political, economic and social effects, as countries may not want to associate with another country that has been indicted by the UN’s judicial arm to have committed genocide.

“With an ICJ judgment, other state parties to the Genocide Convention would have a basis for taking individual or collective (including through intergovernmental organisations) peaceful measures to promote compliance with the ICJ judgment,” Owiso said in an email, “and this may include withdrawing any form of cooperation with Israel until it complies with the judgment, etc.”

Israel is unlikely to agree to any ICJ ruling that would disrupt its declared goal to fully eliminate Hamas, and it would not be the first time that a nation ignored a World Court ruling without consequences. In 2021, it decided in favor of Gambia’s application against Myanmar, ordering the country to direct its military not to commit genocide. Yet there is no evidence that Myanmar has complied.

“So, I do not see Israel in any way complying with an order of the court to cease military operations in Gaza,” Talmon of the University of Bonn said.

A possible result of the proceeding that South Africa should be prepared for is the court ruling in favor of Israel. “The State of Israel will appear before the International Court of Justice at the Hague to dispel South Africa’s absurd blood libel,” Eylon Levy, the government spokesperson, said.

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