South Africa has launched a case against Israel at the International Court of Justice (ICJ), the principal judicial body of the United Nations (UN), accusing the state of committing genocide in its military campaign in Gaza. Israel has rejected the charge, calling the case “baseless” and a “blood libel,” a reference to false accusations of murder and ritual sacrifice by Jews.
The Court has been urged to issue interim orders in the form of “provisional measures,” which include calling for an immediate ceasefire to end the war and Israel’s indiscriminate killing of Palestinians. Public hearings in this regard are set to take place at The Hague from January 11-12. Although the Court may issue a provisional ruling within weeks, a final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the application are concluded, which will likely take several years.
The International Criminal Court (ICC) is already investigating possible war crimes and crimes against humanity committed by both Hamas and Israel. While the ICC is mandated to prosecute only individuals, the ICJ adjudicates conflicts between states and determines “state responsibility” for crimes.
Threshold for a “provisional measures” order
Similar to interim injunctions issued by national courts, provisional measures issued by the ICJ seek to freeze combat operations to preserve the integrity of a future final judgment. In its LaGrand judgment in 2001, the Court clarified that such provisional rulings are binding on the parties given its “basic function of judicial settlement of international disputes.”
However, whether Israel will choose to abide by an adverse provisional ruling is debatable. For instance, in March 2022, the ICJ ordered Russia to halt its offensive in Ukraine. Although the order was legally binding, Moscow decided to ignore it, resulting in the continuation of hostilities. But such a ruling could significantly sway international public opinion.
To get interim relief at this stage, South Africa does not have to definitively prove that genocide has taken place. It just has to “prima facie” show that “at least some of the acts alleged,” such as the indiscriminate killing and forced displacement of Palestinians in Gaza, could fall within the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
To issue a provisional measures order, the Court must be satisfied that it has prima facie jurisdiction, that there is a “plausible” link between the rights asserted by South Africa and the measures it requests, and a risk of irreparable harm and urgency.
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‘Genocidal intent’ — South Africa’s allegations against Israel
In its extensive 84-page application, South Africa has alleged that Israel’s conduct in Gaza violates its obligations under the Genocide Convention, adopted in 1948 following the atrocities of World War II and the Holocaust. It has been ratified by an overwhelming number of States, including South Africa (1998) and Israel (1950). The jurisprudence of ICJ considers the prohibition of genocide a peremptory norm of international law (jus cogens) from which no derogation is permissible.
Article IX allows any state party to the Convention to institute a case against another in the ICJ, even if it is not directly involved in the conflict. For instance, in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar.
“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 application stipulates. It has also highlighted that provisional measures are necessary “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.” The measures sought include those to prevent the destruction of any evidence related to the case by providing fact-finding missions, international mandates, and other bodies access to Gaza.
Notably, South Africa has emphasised that Israel has been carrying out hostilities against Palestinians even before Hamas’s actions on October 7, which it has unequivocally condemned in its plea. It notes that between September 29, 2000 and October 7, 2023, approximately 7,569 Palestinians, including 1,699 children,” were killed by Israel during military operations, “with tens of thousands of others injured.”
The Convention defines genocide as acts such as killings “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” Proving such specific intent on the part of the perpetrators is difficult and is generally ascertained through circumstantial evidence; genocidal intent will rarely be expressly stated.
Accordingly, South Africa has cited statements made by Israeli leaders as evidence of genocidal intent against Palestinians, contrary to Israel’s self-defence claim against Hamas. Such examples of “direct and public incitement to commit genocide by Israeli state officials” also include remarks made by Prime Minister Benjamin Netanyahu comparing Palestinians to the biblical Amalek— a nation instructed by God to be destroyed entirely. It also references a statement made by Israeli President Isaac Herzog on October 12 declaring that there was no differentiation between armed fighters and civilians in Gaza.
Threats to make Gaza permanently uninhabitable, references to Palestinians as human animals by Defense Minister Yoav Gallant, and calls by far-right ministers Bezalel Smotrich and Itamar Ben Gvir to resettle Palestinians outside Gaza have all been documented in the claim.
The “scope of the Israeli military’s operations — its indiscriminate bombings and executions of civilians, as well as Israel’s blockade of food, water, medicine, fuel, shelter, and other humanitarian assistance” have pushed Palestinians to the “brink of famine”.
“[Genocidal intent] is also clear from the nature, scope, and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed. Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm.”South Africa’s application instituting proceedings against Israel
The claim further contends that the “conduct of Israel — through its state organs, state agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza” shows a “collective intent” to perform genocidal acts.
Besides genocide, it has also been claimed that Israel is violating other aspects of international law including the Geneva Conventions by “attacking sites of “religion, education, art, science, historic monuments, hospitals and places where the sick and wounded are collected.”
South Africa’s claims are supported by references to reports and investigations by sources such as the International Committee of the Red Cross, the World Health Organisation, Palestinian journalists on the ground, and numerous independent United Nations’ human rights experts.
‘Blood libel’— Israel’s response
Responding to the suit, Israel’s Ministry of Foreign Affairs has vehemently denied allegations of genocide and has described the case as a “despicable and contemptuous exploitation” of the Court. However, spokesperson Eylon Levy confirmed that Israel will be defending itself at the hearings. “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy,” he told reporters.
Mr. Levy has also contended that Israel’s conduct in the ongoing hostilities focuses on its right to self-defence while ensuring that measures are taken to reduce civilian casualties. “We have been clear in word and in deed that we are targeting the 7 October monsters and are innovating ways to uphold international law, including the principles of proportionality, precaution, and distinction in the context in a counter-terror battlefield no army has faced before. That is why we spent weeks urging residents in northern Gaza to evacuate before the ground offensive. To warn civilians we placed over 70,000 phone calls, sent 13m text messages, left 14m voice messages, and dropped nearly 7m leaflets urging civilians to evacuate temporarily for their safety, informing them about humanitarian pauses and precise evacuation routes,” he asserted.
How have other countries reacted?
South Africa’s claim has been welcomed by the Organization of Islamic Cooperation, which includes 57 African and Muslim-majority countries such as Turkey and Malaysia, which have also issued separate statements of support. Bolivia dubbed the move as ‘historic,’ becoming the first Latin American country to back the ICJ case against Israel.
Maldives, Namibia, and Pakistan have also voiced their support for the genocide case during a UN General Assembly session held on January 9.
Nations opposing the claim include the United States, with National Security spokesperson John Kirby calling the lawsuit “meritless, counterproductive, and completely without any basis.” The European Union has also maintained silence on the case.
The United Kingdom has been accused of hypocrisy after it rejected South Africa’s appeal despite submitting detailed legal arguments to the ICJ about a month ago to support claims that Myanmar committed genocide against the Rohingya ethnic group.
What can be expected?
US veto at the UN Security Council
Due to weak enforcement mechanisms, the court’s decisions are often defied despite being legally binding. In most recent high-profile cases including Ukraine v. Russia in 2022, the Gambia’s claims of genocide against Myanmar in 2020, Nagorno-Karabakh, and US sanctions on Iran — an adverse ruling was not adhered to by the concerned state party.
“The ICJ can enforce decisions provided the UN Security Council is willing to act on it. In the Russia-Ukraine case, the problem was that since Russia is a permanent member, you cannot get a consensus at the Security Council,” says Prabhash Ranjan, Associate Professor at the Faculty of Legal Studies, South Asian University.
He points out that in this case too, the United States, the strongest ally of Israel, could veto any action taken against it. Since 1945, the US has vetoed 34 out of 36 UNSC draft resolutions related to the Israel-Palestine conflict.
“The deadlock created by a US veto sparks a broader debate on how weak the enforcement mechanisms within international law are and how dependent they are on political processes. But with the economic sanctions that continue to persist on Russian industries, the hope is that a ruling in this case will lead to a similar outcome”, says Tejas Rao, a doctoral candidate at the University of Cambridge.
Hamas is not a party
Highlighting that this case differs from the case instituted by Ukraine against Russia since the two parties were also the two involved in the conflict, Mr. Ranjan says, “There is one important factor that has to be kept in mind. South Africa is not involved in this dispute. When Ukraine went to the ICJ, the court could ask both parties to stop the military hostilities. But in this case, Hamas is not a party to the proceedings. In that eventuality, can the ICJ then ask only Israel to halt combat operations? Because then Israel can argue that it cannot do so if Hamas continues its military strikes.”
Mr. Ranjan also notes that it is important that Israel has agreed to take part in the proceedings, forgoing its decades-long policy of ignoring the ICJ. This, he says, will create greater pressure on Israel to comply with an adverse ruling.
Will document ‘voices from the voiceless’
Pointing out that the proceedings will “document voices from the voiceless”, Mr. Rao says — “In a lot of these cases, the people who are being represented are not generally people who would ordinarily feel heard internationally. They are already extremely vulnerable, and extremely marginalised. This will have a humongous impact on them — to know that they are being heard by the world on an international stage.”
A favourable ruling, he says, could likely shift public opinion and create more political pressure on Israel to allow the entry of more aid in Gaza and ensure compliance with basic human rights.
