South Africa’s genocide case against Israel set to begin at The Hague

One of the world’s most polarising conflicts, the Israel-Hamas war, is set for its day in court.

The South African government has put forward an 84-page submission claiming that Israel’s actions in Gaza have amounted to genocidal acts under the 1948 Genocide Convention. It is asking the International Court of Justice (ICJ) in The Hague to order Israel to cease all military action in the strip.

The court’s 15 judges will be joined by one Palestinian judge and one Israeli judge to hear South Africa’s initial arguments on Thursday (Jan 11).

South Africa’s legal team will start proceedings by arguing that the court should apply provisional orders to immediately suspend all Israeli military activity in the Gaza Strip until a final verdict is reached.

On Friday, Israel’s lawyers will make the opposing case – either arguing against measures, or challenging the court’s jurisdiction to rule on these matters.

Israeli officials have already likened this case to blood libel, a reference to an antisemitic trope.

They argued that claims of genocide by South Africa make the country complicit in the Oct 7 attack by Hamas, which killed 1,200 people, according to Israeli tallies. The attack prompted an Israeli air and ground assault which, according to Gaza's health ministry, has killed more than 23,000 Palestinians. 

DEFENCE AND RESPONSE

Visiting Professor at University of Minnesota’s Center for Holocaust and Genocide Studies Melanie O'Brien said that South Africa has a good argument at this stage and that it is likely the ICJ will order some kind of measure that Israel should comply with. 

“The extent of those (measures) remain to be seen, because what Israel can argue is that their actions are being carried out in the course of an armed conflict against a non-state armed group,” she told CNA’s Asia First on Thursday (Jan 11). 

She noted that the case is “an extremely complex one” and not as straightforward as others.

“There's a lot of discussion amongst lawyers at the moment about, particularly, the need to prove genocide. You need to prove what's called a ‘special intent’ and that's the intent to destroy the group,” she said. In the present Convention, genocide refers to acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. 

“In this case, South Africa is arguing that Israel has an intent to destroy Palestinians, or at least a substantial part of the Palestinian population. And that's really difficult to prove,” Prof O'Brien added. 

Once the arguments are heard, the court will reach a decision on the provisional measures in a matter of weeks. However, even if it orders such measures, it does not necessarily mean Israeli military action will stop.

The ICJ’s orders would be legally binding but enforcing them will be up to the United Nations Security Council, where the United States can block any enforcement action. 

The US, which has been supporting Israel with aid, last month vetoed a UN resolution backed by almost all other Security Council members and dozens of other nations demanding an immediate humanitarian ceasefire in Gaza.

US, EU REACTIONS

Washington has already expressed its opposition to the South African case, with National Security Council spokesperson John Kirby saying: “We find this submission meritless, counterproductive and completely without any basis in fact whatsoever.”

Prof O’Brien said the case is not meritless. The fact that Israel has said it will participate in the hearings is “a really positive sign” and hopefully, if orders are made, they will comply, she added. 

Around the world, the picture is more nuanced.

Europe, like many other parts of the globe, is divided in its views about the conflict in Gaza, which means European officials have been more cautious in their response to this landmark legal case.

Unlike his US counterpart, the EU’s foreign affairs spokesperson Peter Stano told CNA that the case is primarily a matter for the court.

"Since we are a community based on the rule of law and respect for international law and the UN Charter, of course we are supporting the International Court of Justice,” he said.

“Regarding this specific case, countries have the right to submit cases or lawsuits. The European Union is not part of these lawsuits. So this is not really for us to comment, because this is a pending case.”

SOUTH AFRICA’S ROLE 

On South Africa’s role in the case, Prof O’Brien said the ICJ has emphasised that any state that is a party to the Genocide Convention can bring a case, because of the seriousness of what the human rights treaty entails.

“South Africa is bringing it as a party to the Convention because they have a right to do it. But what's really interesting is that they are also arguing that they are doing this as part of their own obligation to prevent genocide under that Convention,” she said.

“South Africa has is its own history of apartheid. And so that is kind of its personal connection … And it sees it as part of its role to prevent that (from happening) elsewhere,” she added. 

It is important that other countries stand up for human rights and the protection of civilians, which is what South Africa is doing, she said. 

“We have a case here where whether or not it is ultimately found that Israel is committing genocide … At this point, we can argue that there is a risk of genocide, and therefore, it's really important to take action to prevent any further escalation of violence that is going on, but also to stop any current issues that may be related to breaches of the Genocide Convention,” she said. 

The decisions made in the coming days in The Hague are unlikely to have an impact on the ground in Gaza in the short-term, given the gears of international justice are known for turning slowly.

What they will do, however, is start a legal precedent, and write a new page in the history of this divisive conflict.