How significant is South Africa's genocide case against Israel?

Late last year, South Africa initiated a case against Israel at the International Court of Justice (ICJ) in The Hague, accusing Israel of genocide against Palestinians in Gaza.

The case, scheduled for hearing on the 11th and 12th of January, aligns with mounting international pressure on Israel over its prolonged offensive in Gaza, now in its fourth month.

The international community’s alarm is escalating, fuelled by the dire humanitarian situation in Gaza. According to the UN, around 40 percent of Gaza’s population is on the brink of starvation. Moreover, UN emergency relief chief Martin Griffiths has warned famine is “around the corner,” as people face the “highest levels of food insecurity ever recorded”.

Meanwhile, around 85 per cent of Palestinians in Gaza are displaced while entire districts and neighbourhoods in northern Gaza have been completely levelled. Diseases are running rife in the besieged enclave as Gaza faces a lack of functioning healthcare facilities.

"South Africa must prove that there is a legal right in question and that there is a risk of irreparable harm. They're not going to have much difficulty with that"

Despite the growing pressure, and the rising death toll – which has now passed 22,800 with thousands more missing - Israeli Prime Minister Benjamin Netanyahu has so far remained undeterred and has vowed to continue the onslaught.

Many international observers now await the ICJ's ruling, which, while it may not immediately impact the war, symbolises a growing tide of legal scrutiny against Israel. As a first step, a preliminary measure from the upcoming case may entail a temporary ‘restraining order’ on Israel to ensure compliance with the 1948 Genocide Convention.

“The standard of proof is reasonably low, on the basis that the hearing is urgent and the parties do not have time to gather all the evidence. South Africa must prove that there is a legal right in question and that there is a risk of irreparable harm. They're not going to have much difficulty with that,” Juliette McIntyre, lecturer in law at the University of South Australia, told The New Arab.

She added that, at this stage, South Africa “does not need to prove that Israel is committing genocide. They simply need to establish that there is a plausible risk of genocide occurring”.

What are the charges?

South Africa's argument, laid out in an 84-page application, states that “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,” within the Genocide Convention.

Article II of the Convention states that acts of genocide include killing members of the group, causing serious bodily or mental harm, inflicting conditions calculated to bring about physical destruction in whole or in part, preventing births within the group, or forcibly transferring children to another group.

South Africa’s case presents various actions that fit with this criteria, including the killing of Palestinians, particularly children, demolition of residences, forced relocations, and restrictions on vital resources like food, water and healthcare access in Gaza.

The lawsuit also lists policies that hinder the birthrate among Palestinians, such as undermining vital healthcare services necessary for the well-being of expectant mothers and newborns.

Accordingly, the suit claims these actions are “intended to bring about their [Palestinians] destruction as a group”.

It’s crucial to note that proving genocide requires proving the 'intent' to commit genocide, rather than just presenting actions that might be construed as genocidal.

Yet South Africa has highlighted various comments from Israeli ministers and officials in an attempt to showcase such intent, including statements such as “we are fighting human animals,” “we are rolling out the Nakba,” “we all have one common goal – erasing the Gaza strip from the face of the earth,” and Gaza will be “wiped out”.

"The case states that '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'"

“South Africa will likely be able to satisfy the requirements to persuade the ICJ to indicate provisional measures against Israel,” Michael Becker, assistant professor of international law at the University of Dublin, told The New Arab.

Becker added that the ICJ will have to determine if the intent to destroy Hamas has transformed into a genocidal intent towards the Palestinian population of Gaza.

“This may require Israel to explain how its on-the-ground tactics, which have resulted in such a significant number of civilian casualties, can be explained by factors that point away from an intent to physically destroy the Palestinian population of Gaza.”

What is the international community's role?

The lawsuit has sparked a harsh reaction in Israel, which has slammed the case as “absurd blood libel”. Government spokesperson Eylon Levy, while confirming Israel will defend itself at The Hague hearings, told South African leaders “history will judge you, and it will judge you without mercy”.

Israel certainly cares about how it’s perceived on the international stage. And given its official stance that it’s fighting Hamas in self-defence and in line with international law, a position its Western partners have supported, there are concerns within Israel that an adverse ICJ ruling could have negative diplomatic, economic, and security consequences.

This has prompted Israel to utilise its diplomats to sway politicians internationally to build opposition to defeat South Africa’s case. Moreover, Israel’s defence will likely hinge on Hamas and its attack on 7 October. And so far, the US has backed its close ally Israel in the ICJ case, with the State Department spokesperson saying Washington was "not seeing any acts that constitute genocide”.

Although ICJ rulings are legally binding, as both South Africa and Israel are signatories to the ICJ as UN member states, the ICJ itself lacks enforcement powers. Thus, politics are undoubtedly influential, as any ruling would rely on the UN Security Council to enforce it. 

In the ICJ, there are 15 judges, with five representing the permanent members of the UN Security Council (the US, China, the UK, France, and Russia), and the remaining ten are representatives from various other countries. After a ruling, the enforcement of the court's decisions is the responsibility of the Security Council.

Dr Omer Bartov, Professor of Holocaust and Genocide Studies at Brown University, outlined a potential legal path forward.

“If the ICJ decides on an injunction for Israel to cease actions in Gaza - deliberations on the actual merit of the case may take years - this would go to the UN Security Council, which has the authority to impose the injunction on Israel or penalise it for refusing to abide by it,” he told TNA.

“In this case, if the US vetoes such an action, it would be in an even more uncomfortable and exposed position than before, in view of the severity of the accusation,” he added.

A similar situation unfolded with an ICJ case in March 2022, where Ukraine filed a case against Russia at the court and sought emergency measures from the court to stop its invasion of Kyiv. However, just as Russia eventually disregarded the order, Israel may also attempt to defy any ruling in the event of inadequate enforcement.

"If the ICJ decides on an injunction for Israel to cease actions in Gaza [...] this would go to the UN Security Council, which has the authority to impose the injunction on Israel or penalise it for refusing to abide by it"

Growing pressure

Some countries may impose individual penalties on Israel following a verdict. The Organisation of Islamic Cooperation (OIC), with 57 member states, has praised South Africa’s application, as have many individual nations within it. Adding to international pressure, neighbouring Jordan and Egypt have warned Israel not to expel Palestinians from both Gaza and the West Bank.

Israel’s Western partners have felt increased pressure too, particularly given the rhetoric from some Israeli officials. Washington has tried to distance itself from recent comments made by far-right ministers Bezalel Smotrich and Itamar Ben Gvir, who called on other countries to accept displaced Palestinians from Gaza, as their words attracted much criticism.

And Israeli Ambassador to the UK Tzipi Hotovely suggested in an interview with LBC that “every school, every mosque, every second house, has access to the [Hamas] tunnels in Gaza”. This statement led interviewer Iain Dale to remark, “that’s an argument for destroying the whole of Gaza, every single building in it,” a point which Hotovely didn’t appear to dispute.

Ultimately, Omer Bartov said that Israeli military operations in Gaza may likely decelerate – although not necessarily end – in part due to US and European pressure, but also the sense that the effectiveness of the operations has reached its limits and the increased risk of Israeli military casualties.

Bartov also pointed to a debate between the military, which wants to eventually vacate Gaza and let an international coalition run it, and extremist ministers who want Israelis to settle there and “encourage” Palestinians to leave Gaza by making their lives unbearable.

"If the US vetoes such an action, it would be in an even more uncomfortable and exposed position than before, in view of the severity of the accusation"

“There is much talk in Israel about leaving the northern part of the Gaza Strip - where entire areas have been flattened - empty of Palestinians,” he added.

“This could amount to ethnic cleansing verging on genocide, unless reversed,” he added, although saying a reversal would only occur under mass international pressure, including from the US.

“The referral to the ICJ may play some role in this pressure.”

Jonathan Fenton-Harvey is a journalist and researcher who focuses on conflict, geopolitics, and humanitarian issues in the Middle East and North Africa.

Follow him on Twitter: @jfentonharvey