Unpacking South Africa’s Case Against Israel in the ICJ
A short primer on the background and the merits of the ongoing genocide trial.
On December 29, 2024, South Africa brought forth a case against Israel with the International Court of Justice, a UN court based in The Hague.
South Africa claimed that Israel “has failed to prevent genocide and has failed to prosecute direct and overt incitement to genocide”.
South Africa also put forth a request for provisional measures (think of it as an emergency order) in order to immediately halt Israel’s operation in Gaza. It is this request that was heard on January 11 and 12, 2024.
The purpose of this trial
It is important to remember that the purpose of these current hearings is not to determine whether Israel has committed genocide, but only whether these allegations are plausible, which would lead to an order from the court to suspend military operations.
Because of the nature of provisional measures, the cases are resolved quickly (usually in weeks), whereas the rest of the cases will likely take years to decide.
What is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide?
Adopted by the UN General Assembly, the Genocide Convention (as it is widely known), was implemented in order to show the international community’s commitment that the horrors of genocide, like the Holocaust, never again be repeated against any group of people.
It also provided the world with a legally agreed-upon definition of genocide and sets out the duties of ratifying countries to both prevent and punish this crime.
What is the International Court of Justice (ICJ)?
The International Court of Justice has two primary functions. It can be used to:
- Settle legal disputes between states, and;
- To give advisory opinions on legal questions
The ICJ operates on a consent basis, and so the parties must voluntarily accede to the court’s jurisdiction.
It is also important to remember that, while the court’s orders are binding on the parties, the ICJ has no real way of enforcing the orders.
South Africa’s Accusations
As previously mentioned, South Africa is accusing Israel of having demonstrated a “pattern of genocidal conduct” since launching its counter-offensive in Gaza.
South Africa states that Israel is engaging in “mass killings” in Gaza, inflicting bodily and mental harm, engaging in forced displacement and blockading food, causing destruction of the healthcare system, and preventing Palestinian births.
South Africa’s legal team also sought to contextualize the Hamas-Israel war within the framework of the greater Israeli-Palestinian conflict. Their narrative even borders on characterizing Israel’s entire existence as illegitimate. As they say this in front of a UN Court, it’s hard not to think about how the United Nations Special Commission on Palestine’s partition recommendation in 1947 was a major reason for the existence of Israel today.
Israel’s Defence
The legal adviser for Israel’s Foreign Ministry started off Israel’s defense on January 12 by calling South Africa’s version of the facts a “grossly distorted story”.
Part of this distortion is in the smaller facts — like stating that the Erez Crossing into Gaza is closed without acknowledging that the crossing was attacked. Like accusing Israel of not allowing aid in, when in reality most of this aid is being stolen by Hamas. Like taking the Hamas-run Health Ministry death toll numbers at face value, which do not differentiate between civilians and combatants. Like ignoring the number of misfired Hamas rockets that have killed people within Gaza.
Israel’s legal defense points out that South Africa seems to have developed a major blind spot to the entire impetus of the war. They ignore that Hamas, breaking a cease-fire, illegally entered into sovereign territory on October 7 and launched the most violent massacre against Jewish people since the Holocaust.
They ignore that there are over 100 people, including an infant and a toddler, still held as hostage, without being afforded medical care, visits from the Red Cross, updates to families about their well-being and whereabouts, or any of the protections normally afforded by international law.
They ignore that Hamas is launching missiles from protected areas such as schools, hospitals, and civilian homes, thereby putting these areas at risk of retaliatory attacks. And that they have a vast underground tunnel network, built underneath civilian areas, in which they store weapons used to attack Israel.
They refuse to acknowledge Hamas’ intentions as genocidal despite the group being quite frank about their intention to eradicate the state and those within it.
And, perhaps most glaringly revealing the distortion of their story, they seek an immediate halt to Israel’s operation in Gaza, without even once acknowledging Hamas’ refusal to cease their fire against Israeli civilians and release the hostages.
How do we move forward?
The major question lies in how we balance Israel’s legitimate right to defend itself against ongoing and future attacks while minimizing civilian harm. Normally, I would always advocate for diplomatic avenues first and foremost.
However, Hamas is not a legitimate governing body of a state. They are not actors with whom you can reason, negotiate, and create agreements. They are a terrorist organization hell-bent on destroying their neighbors.
Whether you want to classify Israel’s actions against Hamas as genocide or not, one thing is clear: all Hamas has to do is release the hostages and dismantle their terror activities, and this war is over. No more innocent blood has to be spilled.
Edith is a Canadian-Israeli law school graduate and human rights advocate.
