The International Court of Justice on Thursday began hearing a politically explosive case brought by South Africa alleging that Israel was committing genocide against the Palestinians in its war in Gaza.
South Africa brought the case under the 1948 Genocide Convention, claiming that by killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them “conditions of life calculated to bring about their physical destruction”, Israel was responsible for a genocide.
Israel has furiously denied the allegations, saying that South Africa’s case “lacks both a factual and a legal basis, and constitutes despicable and contemptuous exploitation of the court”, and insisting that it complied with international law and that its forces were targeting only militants.
“Israel has made it clear that the residents of the Gaza Strip are not the enemy, and is making every effort to limit harm to the non-involved and to allow humanitarian aid to enter the Gaza Strip,” said the foreign ministry.
The genocide convention was established after the second world war and the holocaust, during which 6mn Jews were killed by the Nazis and their collaborators. Both South Africa and Israel are signatories, which allows South Africa to bring its case. The convention has previously only been used in cases involving Bosnia and Serbia; Gambia and Myanmar; and Russia’s war in Ukraine.
A final ruling on the case will take years, and this week’s hearings relate only to South Africa’s request for emergency measures. While the court is likely to decide on these within weeks, it has no means of enforcing them. In March 2022, the court ordered Russia to suspend its military operations in Ukraine, but Moscow simply refused to comply.
However, observers said even if measures were not enforced, a decision to impose them — and even more so a final ruling against Israel — could deal a blow to the country’s standing and change the way other states dealt with it, for example, by making them less willing to sell it weapons.
“The court of public opinion has much more currency, I think, than people realise,” said Sheila Paylan, an expert on international law and human rights. “I don’t know how Israel would reputationally be able to handle a loss of that nature, given the gravitas of the convention under which it comes.”
Israel declared war on Hamas after its militants stormed into the country on October 7, killing about 1,200 people, according to Israeli officials, and taking a further 240 hostage.
Its retaliatory offensive in Gaza has killed more than 23,000 people, according to Palestinian officials, as well as displacing 1.9mn of the enclave’s 2.3mn inhabitants and rendering large swaths of the territory uninhabitable.
In its submission, South Africa cited Israel’s “failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people”, its “sustained bombardment over more than 11 weeks of one of the most densely populated places in the world” as well as the high number of children killed as factors that have created “conditions of life calculated to bring about their physical destruction as a group”.
“Israel has a genocidal intent against the Palestinians in Gaza. That is evident from the way in which Israel’s military attack is being conducted,” Tembeka Ngcukaitobi, a member of South Africa’s legal team, told the court on Thursday.
“As we stand today, 1 per cent of the Palestinian population in Gaza has been systematically decimated. And one in four Gazans have been injured since October 7. These two elements alone are capable of evidencing Israel’s genocidal intent in relation to the whole or part of the Palestinian population in Gaza.”
Israeli Prime Minister Benjamin Netanyahu responded by accusing South Africa of hypocrisy. “Today, again, we saw an upside down world, in which the State of Israel is accused of genocide at a time when it is fighting genocide,” he said. “We are fighting terrorists, and we are fighting lies.”
Israel’s legal team is due to set out its case on Friday. Robbie Sabel, an international law expert at the Hebrew University in Jerusalem, said he expected Israel to argue that it was acting in self defence following a “murderous attack”, that it was allowing humanitarian aid into Gaza, and had made efforts to minimise civilian casualties, such as ordering civilians to evacuate from certain areas before striking them.
“If you want to kill people, you don’t warn them in advance. All the steps we’ve taken prove that we didn’t want to [kill civilians],” he said.
One of the crucial elements in the case will be the question of intent. In its submission, South Africa lists numerous statements by senior Israeli officials, saying that “when combined with the level of killing, maiming, displacement and destruction on the ground, together with the siege — [they] evidence an unfolding and continuing genocide”.
Among them was a quote from Netanyahu referring to the biblical story of the total destruction of Amalek by the Israelites; a suggestion by another minister that a nuclear strike on Gaza was an option; and the contention by various officials that there was no distinction between militants and civilians in Gaza.
Amichai Cohen, senior fellow at the Israel Democracy Institute, said this could be a “weak point” for Israel. “If the claim were, Israel is not doing enough in order to suppress incitement to genocide, I think . . . there is some merit to this claim regarding politicians and celebrities. However, the idea that this turns into a policy of Israel that is somehow being implemented on the ground — I think that’s wrong. This is not what is happening.”
South Africa requested a variety of emergency measures, including that Israel “immediately suspend its military operations in and against Gaza”; refrain from “direct and public incitement to commit genocide”; and “take all reasonable measures within their power to prevent genocide”.
It also requested that Israel preserve evidence relating to the case and provide the ICJ with regular reports on how it was applying the court’s orders.
The court has various options: it can order the measures requested by South Africa; apply others; or none at all. Cohen said he thought it “unlikely” the court would go so far as to order Israel to stop its Gaza offensive. But he said it was possible that “there will be some kind of order regarding stopping incitement . . . or more humanitarian provisions”.
The wider implications for Israel, should the court decide the case was plausible enough to justify imposing emergency measures, would depend on how many — and who — of the 17 judges on the panel supported applying them, according to Cohen.
If only a small majority of judges, including those from the likes of Russia and China, did so, it would “not be very damaging”, he said.
“But if there [is] a consensus in the court, including the justices from the US, Australia, France, Japan, Slovakia Brazil, Jamaica . . . then it might be more damaging.”