Israel will face a new foe on a new front this week when the International Court of Justice (ICJ) hears arguments from South Africa alleging the Israeli military in Gaza is “genocidal in character” and intended to bring about the destruction of Palestinian people in the besieged territory.
“No armed attack on a state’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,” South Africa says in its 84-page legal brief, which was submitted to the court on Dec. 29.
South Africa will present its detailed arguments to the ICJ, which is based in The Hague, on Thursday. Israel will respond on Friday and fiercely deny that any of its actions in Gaza, in its war against Hamas, are genocidal.
Hamas led militant attacks on Israeli communities on Oct. 7, killing more than 1,200 civilians and soldiers, according to the Israeli government, and took more than 240 people hostage, roughly half of whom have since been released in a swap for Palestinians held in Israeli prisons.
Israel has subsequently carried out relentless military attacks on the Gaza Strip, killing more than 23,000 Palestinians, according to the territory’s Hamas-run Health Ministry. Although that figure does not differentiate between civilians and combatants, Palestinian officials estimate Israel’s bombardments have killed at least 7,000 women and 10,000 children.
Here’s what you need to know about the ICJ, the genocide case and its implications.
What is the ICJ?
The ICJ is the main judicial body of the United Nations, established in 1945 to settle disputes between states in accordance with international law.
The court consists of 15 judges from different countries, elected by the UN General Assembly and UN Security Council.
The panel will be expanded in this case to include two additional judges, one each from South Africa and Israel.
Unlike the International Criminal Court (ICC), which is also based in The Hague but is independent of the UN, the ICJ does not try individuals for war crimes, nor do its rulings result in criminal convictions or prison sentences.
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The ICJ’s decisions are legally binding and cannot be appealed, but the court does not have its own ability to enforce rulings.
If the court renders a judgment against a state and it does not act up on its obligations, the other state can bring it before the UN Security Council which, according to the ICJ website, “is empowered to recommend or decide upon measures to be taken to give effect to the judgment.”
What are South Africa’s accusations?
South Africa says that as a party to the UN Genocide Convention — as is Israel —compels it to act to prevent genocide from occurring.
In its detailed brief, South Africa laid out its allegation that Israel is “engaging in genocidal acts against the Palestinian people in Gaza” and failing in its fundamental obligations under the convention.
The crime of genocide, as defined by the convention, includes acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
But it’s not limited to killing members of a group. It also includes causing serious bodily or mental harm, deliberately inflicting conditions of life to bring about physical destruction, imposing measures intended to prevent births and forcibly transferring children of that group to another group.
South Africa lists Israel’s failure to provide essential food, water, medicine, fuel, shelter and other humanitarian assistance to the Gaza Strip during the war with Hamas over the past three months. It also points to the sustained bombing campaign which has destroyed much of the enclave and forced the evacuation of some 1.9 million Palestinians.
The South African brief also alleges Israeli leaders have made remarks that are tantamount to inciting genocide without punishment.
Ahead of the ICJ proceeding, Haaretz reported Israel’s attorney general, Gali Baharav-Miara, signalled her intent to examine extreme comments made by officials in regards to the “intentional harm of uninvolved citizens” in Gaza.
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What is Israel’s response?
Israel has vehemently condemned the case brought to the ICJ as “blood libel” — a reference to a longstanding conspiracy theory that Jews used the blood of Christians in rituals. It has accused South Africa of “collaborating with a terror group that calls for the destruction of the state of Israel,” according to a statement released by Israel’s Foreign Affairs Ministry.
Israeli President Isaac Herzog vowed this week Israel would “proudly” present its case at the World Court and argue that it’s “using self-defence under our most inherent right under international humanitarian law.”
“There is nothing more atrocious and preposterous than this claim,” Herzog said Monday during a news conference in Tel Aviv alongside U.S. Secretary of State Antony Blinken.
Blinken also criticized South Africa’s ICJ submission and the accusation of genocide as “meritless.”
U.S. Secretary of State Antony Blinken says South Africa’s high-stakes genocide case against Israel set to appear before the International Court of Justice this week “distracts the world” as solutions for peace are being sought. He said it’s particularly “galling” given those fighting against Israel are calling for the mass murder of Jews, but added that the daily toll of war on civilians in Gaza is far too high.
What might happen after this week?
It is not unusual for several years to pass between an initial claim and the actual hearing of the case on its merits.
But as a part of its submission, South Africa has asked the ICJ to determine if it has prima facie jurisdiction, meaning whether the court can issue “provisional measures,” a sort of temporary injunction, to stop Israel’s actions against Palestinians in Gaza while the case is ongoing.
Essentially, South Africa wants the court to call on Israel to stop military attacks that kill and cause serious harm to Palestinians in Gaza and the “deliberate infliction of conditions of life calculated to bring about their physical destruction as a group,” such as the restriction of food and humanitarian aid imports.
If the court finds it has prima facie jurisdiction, it could decide to impose provisional measures against Israel, but they may not necessarily be those requested by South Africa.
The case will move forward even if the judges decide against emergency measures. The court is expected to take weeks to issue a decision.