What is South Africa’s genocide case against Israel at the ICJ?

What is South Africa’s genocide case against Israel at the ICJ?

The International Court of Justice (ICJ) is being asked to consider whether Israel is committing genocide against the Palestinians in Gaza.

South Africa brought the case to the court.

Israel has strongly rejected the allegation, calling it “baseless”.

What is the International Court of Justice?

The ICJ is the United Nations’ top court.

Based in the Hague, in the Netherlands, it was established after World War Two, to settle disputes between states and give advisory opinions on legal matters, which is what it is being asked to do with Israel.

Unlike the International Criminal Court (ICC), the ICJ cannot prosecute individuals for crimes of the utmost severity, such as genocide.

But its opinions carry weight with the UN and other international institutions.

The ICJ's Peace Palace in the Hague

The ICJ will deliver an opinion on the genocide allegation as the case is not a criminal trial

What is genocide and what is the case against Israel?

South Africa alleges Israel is committing genocide against the Palestinians, in the wake of Hamas’s 7 October attack.

Hundreds of Hamas gunmen crossed from the Gaza Strip into southern Israel, killing 1,300 people, mainly civilians, and taking about 240 hostages back to Gaza.

Since Israel launched its military campaign against Hamas in response, more than 23,000 people, mainly women and children, have been killed in Gaza, according to the Hamas-run health ministry.

And evidence submitted by South Africa claims “acts and omissions” by Israel “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”.

This refers both to what Israel is actively doing, such as carrying out air strikes, and what it is allegedly failing to do, such as, according to South Africa, preventing harm to civilians.

And the case highlights Israeli public rhetoric, including comments from Prime Minister Benjamin Netanyahu, as evidence of “genocidal intent”.

Under international law, genocide is defined as committing one or more acts with the intention to destroy, in whole or in part, a national, ethnic, racial or religious group.

Those acts are:

  • killing or causing serious bodily or mental harm to members of the group

  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

  • imposing measures intended to prevent births within the group

  • forcibly transferring children of the group to another group

Why are Israel and Hamas fighting in Gaza?

How has Israel responded to the allegations of genocide?

Israel has fiercely rejected South Africa’s claim.

Mr Netanyahu said: “No, South Africa, it is not we who have come to perpetrate genocide, it is Hamas.

“It would murder all of us if it could.

“In contrast, the IDF [Israel Defense Forces] is acting as morally as possible.”

Israel’s military says it takes a raft of measures to avoid civilian casualties.

These have included:

  • airdropping flyers warning of imminent attacks

  • calling civilians’ phones to urge them to leave targeted buildings

  • aborting some strikes when civilians are in the way

And the Israeli government has repeatedly stated its intention is to destroy Hamas, not the Palestinian people.

A spokesperson for UK Prime Minister Rishi Sunak said Mr Sunak believed South Africa’s case was “completely unjustified and wrong.”

“This legal action does not serve the court of peace. The UK government stands by Israel’s clear right to defend itself within the framework of international law.”

Can the court make Israel stop the war in Gaza?

South Africa wants the ICJ to order Israel to “immediately suspend its military operations in and against Gaza”.

But it is virtually certain Israel would disregard such an order and could not be made to comply.

Rulings are theoretically legally binding on parties to the ICJ – which include Israel and South Africa – but in practice, unenforceable.

In 2022, the ICJ ordered Russia to “immediately suspend military operations” in Ukraine – but the order was ignored.

When will there be a decision?

The ICJ could rule quickly on South Africa’s request for Israel to suspend its military campaign.

This would, in theory, protect the Palestinians from what might ultimately be declared genocide.

But a final ruling on whether Israel is committing genocide could take several years.

Why has South Africa brought the case?

A woman raises a mock body bag as pro-Palestinian supporters shout anti-Israeli slogans in Cape Town on November 12, 2023,A woman raises a mock body bag as pro-Palestinian supporters shout anti-Israeli slogans in Cape Town on November 12, 2023,

There have been several pro-Palestinian rallies in South Africa

South Africa has been highly critical of Israel’s military operation in Gaza.

And as a signatory to the UN’s 1948 Genocide Convention, it has an obligation to act, it says.

The governing African National Congress also has a long history of solidarity with the Palestinian cause.

It sees parallels with its struggle against apartheid – a policy of racial segregation and discrimination enforced by the white-minority government in South Africa against the country’s black majority, until the first democratic elections, in 1994.

The country condemned the 7 October attacks and called for the release of the hostages.

“Our opposition to the ongoing slaughter of the people of Gaza has driven us as a country to approach the ICJ,” said President Cyril Ramaphosa. “As a people who once tasted the bitter fruits of dispossession, discrimination, racism and state-sponsored violence, we are clear that we will stand on the right side of history.”

Additional reporting by Damian Zane.

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