In the final days of 2023, South Africa set off a political firestorm by filing an application to start proceedings against Israel in the International Court of Justice (ICJ).
The accusations of genocide in Gaza are considered especially troubling for Israel because the Holocaust (where 6 million Jews were killed by the Nazis in World War II) was the catalyst for the creation of the treaty Israel is now accused of violating.
There are two main planks to South Africa’s application: here we outline what they are and how the ICJ works.
What is the International Court of Justice ?
The International Court of Justice is the United Nations’ top court and is based at The Hague in the Netherlands. It is also known as the World Court.
Its judgments are binding and final - but like some other UN bodies the ICJ does not have the power to enforce its ruling.
Only the UN Security Council, at special request from the “injured state”, can take special measures to enforce an ICJ ruling.
There is another big international court based in The Hague, called the International Criminal Court (ICC).
The main difference between the ICJ and the ICC is that the ICJ rules on disputes between countries while the ICC prosecutes individuals for war crimes.
What is the treaty that Israel is accused of violating?
The 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, or the Genocide Convention, is an international treaty that makes genocide a criminal act, and requires all states that sign the treaty to take measures to prevent and punish the crime of genocide.
It was signed after World War II as part of the world’s commitment to never again repeat the atrocities committed during the war.
The treaty has been signed by 153 states, including South Africa and Israel, meaning they’re obliged to not commit genocide but also prevent or punish it.
The ICJ has jurisdiction to rule on any disputes over the Genocide Convention treaty.
What is South Africa alleging?
South Africa alleges Israel has violated its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in two ways: by committing genocide against Palestinians in Gaza and by failing to prevent it by not holding senior Israeli officials and others accountable for direct and public incitement to genocide.
The application also has a second element where it requests a series of “provisional measures” which will attempt to get Israel to immediately suspend its military operations in Gaza in order to “protect against further, severe and irreparable harm to the rights of Palestinian people”.
The hearings on January 11 and 12 will be devoted to that request which could see the court issue an injunction of sorts to get Israel to stop its military campaign immediately.
“South Africa requests the President of the Court to protect the Palestinian people in Gaza by calling upon Israel immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention,” the document says.
What are the main pillars of South Africa’s case?
Much of the 84-page application is focused on laying out South Africa’s case that Israel is violating its obligations under the UN Genocide Convention.
It acknowledges that Hamas is responsible for atrocious war crimes against civilians in southern Israel on October 7 but says nothing that took place on that day can justify Israel’s response over the last three months to the whole population of Gaza.
The document shepherds its case into six main categories:
- Killing Palestinians in Gaza: at the time of writing, at least 23,357 Palestinians in Gaza have been killed, according to the Gaza Health Ministry. More than 9000 of the dead are children and 5300 are women. This section looks at the scale of the killing and quotes how the violence is so extreme it has been one of the heaviest conventional bombing campaigns” in modern warfare and says “Gaza is now a different colour from space. It’s a different texture”.
- Causing serious bodily and mental harm to Palestinians in Gaza: South Africa outlines how 53,000 Palestinians have been wounded - severe burns and amputations have been typical injuries. It also says Israel has dehumanised Palestinians with cruel, inhuman and degrading treatment: “Large numbers of Palestinian civilians, including children have reportedly been arrested, blindfolded, forced to undress and remain outside in the cold weather, before being forced onto trucks and taken to unknown locations”.
- Mass expulsion from homes and displacement of Palestinians in Gaza: this section alleges how Israel has broken its promises of safety after advising civilians to evacuate to certain areas but then attacking those same areas.
- Deprivation of access to adequate food and water to Palestinians in Gaza: two days after the Hamas attack, Israel declared a “complete siege” on Gaza, allowing no electricity, no food, no water and no fuel to enter the strip. Even though the siege has been partially lifted, South Africa quotes how experts are now saying more Palestinians will die from starvation and disease than from air strikes.
- Deprivation of adequate medical assistance to Palestinians in Gaza: this section focuses on Israel’s alleged targeting of Gaza’s hospitals and medical infrastructure which has left only 13 out of 36 hospitals able to function. “Almost above all else, Israel’s military assault on Gaza has been an attack on Gaza’s medical healthcare system, indispensable to the life and survival of Palestinians in Gaza,” it says. “The critical shortages of staff and supplies –– including anaesthetics, analgesics, medicine have led not only to otherwise unnecessary amputations of limbs, but also to amputations without anaesthesia.”
- Destruction of Palestinian life in Gaza: Across Gaza, Israel is accused of targeting the “infrastructure and foundations of Palestinian life”. In addition to flattening homes, apartment blocks and neighbourhoods, this section outlines the universities, educational centres, court buildings and libraries that have been allegedly targeted by Israel.
South Africa also says Israel is imposing measures to prevent Palestinian births, outlines how there is the deprivation of adequate shelter, clothes, hygiene and sanitation for Palestinians in Gaza and has a section on the perilous situation for shelters run by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
But the next section is possibly regarded as the most crucial.
“Expressions of Genocidal Intent”
Proving “genocidal intent” is widely regarded as the hardest element to determine.
According to the United Nations, “to constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group”.
In other words, killing and destroying a people and their culture is not enough. The plan or intent to do so must also be proved.
In this lawsuit, South Africa has listed what it says is evidence of Israeli officials’ specific intent to commit genocidal acts or fail to prevent them, and also accuses officials of incitement.
This includes Israeli Prime Minister Benjamin Netanyahu invoking the biblical message of the destruction of Amalek, which tells Israelites to attack Amalek and “spare no one, but kill alike men and women, infants and sucklings…”.
It also outlines quotes from Israeli President Isaac Herzog and Israeli Defence Minister Yoav Gallant, who, now infamously, said “we are fighting human animals and acting accordingly” after announcing a complete siege on the Gaza strip.
There are many more references, including examples ranging from Israel’s Minister of Security to their Minister of Heritage.
Page 61 of South Africa’s lawsuit against Israel shows quotes made by Israeli officials which South Africa says are evidence of the officials’ specific intent to commit genocidal acts or fail to prevent them.
What is Israel’s response?
Israel says it will appear before the ICJ to fight the case.
Government spokesman Eylon Levy says South Africa is complicit with Hamas and has called the case “South Africa’s absurd blood libel”.
Levy also says: “We assure South Africa’s leaders, history will judge you and it will judge you without mercy.”
Israel has previously claimed it has conducted its military operation in accordance with international humanitarian law.
Israel also maintains it has a right to defend itself following the Hamas attack on October 7 and says that attack - which resulted in at least 1200 people being killed and the taking of more than 200 hostages - also constitutes genocide.
“The savage attacks perpetrated by Palestinian terrorist groups on October 7 and since then unquestionably constitute serious violations of international law, often amounting to war crimes and crimes against humanity,” an Israel foreign affairs statement said.
The US is also against the case.
US national security spokesperson John Kirby called South Africa’s submission “meritless, counterproductive, and completely without any basis” during a White House press briefing on January 3.
What’s the significance of this case?
Arguably no other country has done more to fight racism and an apartheid regime than South Africa - the rainbow nation - which only allowed its black citizens to vote in its first all-racial election in 1994.
South Africa’s first post-apartheid president, Nelson Mandela, was a vocal supporter of the Palestinian Liberation Organization (PLO) leader Yasser Arafat.
Decades later, there are still deep ties between South Africa’s ruling African National Congress (ANC) who see their struggle against colonialism and racism alongside the Palestinians’ own struggle for statehood.
In these proceedings, South Africa says it is “acutely aware of the particular weight of responsibility in initiating proceedings against Israel for violations of the Genocide Convention”.
“However, South Africa is also acutely aware of its own obligation — as a State party to the Genocide Convention — to prevent genocide.”
Malaysia, Turkey, Jordan, Bolivia and the 57-member bloc the Organization of Islamic Countries (OIC) have all thrown their support behind the case and there are calls for New Zealand to do the same.
But even though both South Africa and Israel are signatories to the 1948 Genocide convention, the ICJ - like other UN institutions - has no power to enforce its ruling.
This puts the court in an incredibly important but fragile position.
It’s now sitting at the heart of one of the most contested and troubled issues of the past century. If its ruling is ignored, it could set a dangerous precedent for the undermining of future rulings and it may deter countries from filing proceedings.
But it also means countries are forced to argue their actions and lay out the evidence, not just before the court, but also in front of the world.
That could lead to a process of justice which is hard, or even impossible, to attain when issues are left to decay in the public domain.
There’s been a surge of violence in another Palestinian territory the occupied West Bank.
Only 12% disagreed that there should be a ceasefire. The remainder were either neutral or unsure.
Rallies were held across the country.
The violence over the past two weeks is the result of decades of tension over the disputed region.