The International Court of Justice in The Hague, the United Nations’ top court, began hearing South Africa’s case accusing Israel of genocide against Palestinians in the current war against Hamas in the Gaza Strip. South Africa has also requested a provisional measure that would obligate Israel “not to engage in genocide” while the case is being decided.
Israel has decided to defend itself at the court, and will be represented by Prof. Malcolm Shaw, a British expert in international law and territorial disputes.
Israel and South Africa are also each entitled to choose a judge to represent them, in addition to the panel of 15 judges who will hear the case. Israel has chosen former Supreme Court president Aharon Barak as its representative on that panel.
In its petition, South Africa claims that Israel’s military operation in Gaza is “genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”
Israel has denied the claim, and one Israeli minister said that accusing Israel of genocide amounts to a “blood libel.” Israel announced it was at war with Hamas hours after the terrorist organization launched a surprise attack on Israel on October 7, slaughtering over 1,300 civilians, wounding thousands more, and taking over 240 people hostage back to the Gaza Strip.
What is genocide?
Prof. Robbie Sabel, an expert in international law from the Hebrew University of Jerusalem and a former legal adviser to Israel’s Foreign Ministry, said that the definition of genocide is simply “the attempt to destroy a people in part or in whole.”
The term “genocide” was coined in 1944 to describe Nazi Germany’s policies in occupied Europe during the Second World War, and in particular the Holocaust, the Nazis’ deliberate killing of some six million Jews, two-thirds of European Jewry. Several other instances of mass killings in recent history have been deemed genocides, including in Rwanda in 1994 and in East Timor from 1974 to 1999. Currently on the court docket is a case by Ukraine claiming that Russia’s war on it over the past two years aims to commit genocide against the Ukrainian people.
According to the Hamas-run Gaza Health Ministry, almost 30,000 Palestinians have been killed since the Israel-Hamas war began on October 7. That number does not distinguish between civilians and combatants, nor does it specify those killed by Hamas’s own misfired rockets or explosives. The Israeli military has not commented on the precise number of Hamas fighters or terrorists that it has killed.
“Israel is committed to international law and acts in accordance with it and directs its military efforts only against the Hamas terrorist organization and the other terrorist organizations cooperating with Hamas,” the Israeli Foreign Ministry said in a statement released immediately after South Africa petitioned the court.
“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,” the statement said.
Genocide and the International Court of Justice
Israel is a signatory to the Genocide Convention of 1948, accepting the jurisdiction of the court on the issue of genocide.
“Israel is obliged, therefore, to appear before the court,” Sabel said.
Dr. Alon Liel, a former Israeli ambassador to South Africa, said that “South Africa had to file its petition claiming genocide, because the other options of war crimes and crimes against humanity dictate that it had to be directly affected from Israeli military action [in order to be able to file a petition in the court].”
The court proceedings could take years, and will culminate in a decision on Israel’s responsibility regarding alleged acts of genocide in the Gaza Strip.
Israel could have chosen not to appear in front of the court and could have let the court hear the case and make a decision in absentia.
“Israel decided to appear because it is very confident in its case and will likely be successful in pushing back on the genocide claims. South Africa will likely lose the case, but this will only become apparent in a few years,” Liel said. “The chances of Israel being found guilty of genocide are slim, but what could happen before that is more concerning to Israel.”
The provisional measure
The main provisional measure that Israel is concerned about could be a call for the immediate suspension of its military campaign in Gaza. Although it has considerably scaled down its operations in recent days, Israeli officials say the war will last for all of 2024.
Israel would be expected to adhere to any court decision on a provisional measure. However, should it not, then the UN Security Council can become involved.
“The only way such a provisional measure can be enforced is by a decision of the UN Security Council,” Sabel said. “There is no doubt that the US would impose a veto if there was such an attempt. Apart from that, there are no enforcement measures.”
Several senior US officials have voiced support for Israel, calling the South African case “meritless.”
Dr. Hilly Moodrick-Even Khen, an expert in international law and chairwoman of the Ariel University Center for the Research and Study of Genocide, said that for the court to reach its final decision, “strong evidence is needed… with a high standard of proof, beyond reasonable doubt of the specific intent.”
However, less evidence is needed for the provisional measure.
“To determine specific intent, you need strong evidence. But regarding provisional measures, only preliminary evidence is needed, and for that, Israel should be worried,” she said. “The political makeup of the judges’ panel is not in favor of Israel, and there is also precedent.”
South Africa submitted documents to the court containing numerous quotes by Israeli politicians, saying that they expressed Israel’s intention to commit genocide.
“Such statements could serve as preliminary proof of specific intent to destroy a group in whole or in part,” Moodrick-Even Khen said.
She also said that Israel does not want to be in a position where it does not obey the decision of an international legal body.
In March 2022, Ukraine requested and was granted provisional measures ordering Russia to suspend its military operations. Russia did not adhere to the court’s order.
“The Hague has always been important for the Israel Defense Forces, even though there has been criticism within Israel on how international law impacts how soldiers operate,” Dr. Yonatan Freeman, an expert on international relations from Hebrew University, said.
“Israel is not counting on a favorable opinion at The Hague but, rather, is looking to use the court as a stage to show the world what happened,” he said.
Rocky relations between Israel and South Africa
South Africa was one of 33 nations that voted in favor of the UN partition plan in 1947, and quickly recognized the State of Israel in 1948. However, relations deteriorated through the 1950s and 1960s as Israel criticized South Africa’s apartheid policies, before beginning to blossom again after the 1973 Yom Kippur War. Good relations continued until the 1990s, and South Africa was one of Israel’s largest buyers of weapons.
Liel said that as long as Israel was negotiating with the Palestinians on a political solution to the conflict, relations continued unhindered.
“As soon as they [South Africa] realized this wasn’t happening anymore, especially in the last decade of Israeli governments that officially took the two-state solution off the table, South Africa began criticizing Israel very sharply,” Liel said.
In the past two decades, South Africa has been an avid supporter of the Boycott, Divestment and Sanctions movement’s campaign against Israel, accusing Israel of being an apartheid state. In 2018, South Africa withdrew its ambassador from Israel and has not reinstated one since. Israel’s ambassador was recalled from South Africa in November 2023, amid the war on Hamas, for “consultations,” in light of increasing criticism from Pretoria. “The relations are now almost at rock bottom, virtually void of any content,” Liel said. “Aside from completely severing ties officially, there is nothing left.”
However, Liel said that Israel is unlikely to sever ties with South Africa, because it has a large Jewish community. According to the Jewish Agency, about 50,000 Jews live in South Africa, making it the 11th- or 12th-biggest Jewish community in the world.
South Africa’s action in The Hague surprised few people who have been following relations between it and Israel in recent years. The ruling African National Congress has been a vocal supporter of the Palestinian cause for decades. “South Africa has always been a challenge to Israel,” Freeman said.
Israeli governments in recent years, mostly led by Prime Minister Benjamin Netanyahu, have made a push toward improving relations with other African countries. In 2023, Israel and several African countries signed cooperation agreements, and in recent UN debates on the situation in Gaza, Kenya, Ghana and Zambia have been among the countries voting in support of Israel.
In 2021, Israel was reinstated as an observer state at the African Union, the governing body of the African continent, after two decades on the outside. Its status was suspended last year after the hard-right Netanyahu government was formed, but relations with many countries remain undisturbed.
“We have seen little criticism from these countries, with South Africa as one of the only voices being highly critical towards Israel from the continent,” Freeman said.