South Africa has launched a case against Israel at the UN’s international court of justice (ICJ) accusing the state of committing genocide in its military campaign in Gaza.
Israel responded to the allegations “with disgust”, calling South Africa’s case a “blood libel” and urging the ICJ to reject it.
Any case at the ICJ is likely to take years to resolve, but South Africa has called for the court to convene in the next few days to issue “provisional measures” calling for a ceasefire. In March 2022, the ICJ ordered Russia to halt its offensive in Ukraine, an order which was supposed to be legally binding, but Moscow ignored it anyway. Any such ruling however is likely to significantly sway international public opinion.
“The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” the South African application to open proceedings said.
“Provisional measures are necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity.”
Article IX of the Genocide Convention allows any state party to the convention to bring a case against another to the ICJ, even if it doesn’t have any direct link to the conflict in question. Last year, the court ruled that the Gambia could bring a genocide claim against Myanmar. The court also ruled in a case between Croatia and Serbia that depriving a people of food, shelter, medical care and other means of subsistence constitutes genocidal acts.
“Genocidal intent is assumed to be the most difficult element to prove, but Israelis in charge of prosecuting this conflict have made a plethora of statements that easily prove the requisite intent to ‘destroy in whole or in part’ the Palestinian population in Gaza,” said Susan Akram, director of the international human rights clinic at Boston University.
As examples, Akram pointed to Israeli defence minister Yoav Gallant’s reference to Palestinians in Gaza as “human animals” and Israeli army Major General Ghassan Alian’s subsequent statement that: “Human animals must be treated as such. There will be no electricity and no water [in Gaza], there will only be destruction. You wanted hell, you will get hell.”
Iva Vukušić, assistant professor in international history at Utrecht University, said: “With over 21,000 dead in Gaza, [the South Africans] believe it is time to let a court look at what is going on. The Genocide Convention allows them to do that, because states, globally, don’t have a lot of places to ‘go to’ in these kinds of situations, especially with the Security Council being as polarised and dysfunctional.”
The international criminal court (ICC) is already investigating possible war crimes and crimes against humanity committed by both Hamas and Israel. While the ICC can prosecute individuals, the ICJ is an arena for adjudicating conflicts between states.
“The ICJ’s provisional measures are legally binding but enforceability is always the problem,” Victor Kattan, assistant professor in public international law at the University of Nottingham, said. “Ultimately, enforcement always returns to the political organs of the UN and they are paralysed. But it’s still symbolic and it’s embarrassing, I’d imagine, for Israel to be facing a genocide claim, given its history.”
Lior Haiat, the spokesperson for Israel’s foreign ministry, issued a swift rejection of South Africa’s case on social media.
“Israel rejects with disgust the blood libel spread by South Africa in its application to the international court of justice,” Haiat said on X, formerly Twitter. “South Africa’s claim lacks both a factual and a legal basis, and constitutes a despicable and contemptuous exploitation of the court.”
“South Africa is cooperating with a terrorist organisation that is calling for the destruction of the State of Israel,” he added, referring to Hamas, whose massacre of hundreds of Israeli civilians on 7 October triggered the war in Gaza.
“I think it is fair to say that a lot of states now use appeals to the ICJ as part of their battles to control global narratives around wars and crises,” said Richard Gowan, UN director at the International Crisis Group. “Turning to the court and using the word ‘genocide’ is a powerful way to shape international debates about a conflict. But it is notable that the court has sadly failed to halt violence in Myanmar or Ukraine. There is a risk that the ICJ becomes just another platform for public diplomatic disputes and name-calling similar to the UN general assembly.”
