AT THE END of December, South Africa submitted an application to the International Court of Justice, the top court of the United Nations, in which it accused Israel of committing genocide against the Palestinian people in Gaza.
South Africa’s 84-page application described Israel’s actions since 7 October as “genocidal in character” and “intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”.
Israel has denied the accusations and said it will defend itself at the Court.
While reaching a final verdict would likely take years, preliminary hearings of the case are being held this Thursday and Friday at the Peace Palace in The Hague, Netherlands.
South Africa alleges that Israel is in violation of the Genocide Convention of 1948 in three ways: by committing acts of genocide, by failing to prevent genocide and by failing to prevent and punish incitement to genocide.
The term ‘genocide’ was coined by Polish lawyer Raphäel Lemkin in 1944 and then codified in the Genocide Convention of 1948, which describes it as a crime “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
Distinct from the International Criminal Court (ICC), where individuals are prosecuted for war crimes, the ICJ is the venue for settling disputes between states. Any state signatory to the Convention can take a case against any other signatory even if it is not directly affected by the alleged crimes, as is the case for South Africa.
Israel does not recognise the authority of the ICC but it does recognise the ICJ and is a signatory to the Genocide Convention, a document produced in the immediate aftermath of the Nazi Holocaust.
Shortly after the South African application was made, Israeli spokesperson Eylon Levy said:
“The state of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel. We assure South Africa’s leaders, history will judge you, and it will judge you without mercy.”
South Africa has received support for the case from a number of countries since it submitted the application, including Turkey, Malaysia and Jordan.
Over the weekend, Taoiseach Leo Varadkar ruled out joining South Africa in its application saying, “that case will be heard” and “I really think this is an area where we need to be very careful.”
Those comments came a day after a group of senators wrote to Varadkar and Tánaiste Micheál Martin calling on the Government to join the case. This week a number of opposition parties joined the senators in making the same call.
The Israeli campaign came in response to the Hamas-led attacks of 7 October, when militants broke through the fence surrounding Gaza and killed civilians as well as military personnel, in an operation that left more than 1,000 people dead, according to the Israeli government.
Israel’s siege, bombardment and subsequent ground invasion of the Gaza Strip has now killed more than 23,000 people and wounded over 59,000, according to the Gazan health ministry.
UN aid chief Martin Griffiths recently described the territory as “uninhabitable”.
What can we expect from this week’s hearing?
As part of its application to the ICJ, South Africa has requested that the court apply what are called “provisional measures”, i.e. court orders directed at Israel (and other signatories) ahead of the actual trial.
“This is kind of like a preliminary injunction, or what we might call temporary or interim relief, that’s meant to be in place while the case is pending,” explains Michael Becker, a professor of International Human Rights Law at Trinity College.
“So the idea here is that you ask the ICJ to direct the other states to take certain actions or to refrain from engaging in certain conduct in order to protect the rights that are being adjudicated upon in the overall case.”
In detailing its proposed provisional measures, South Africa’s application said:
“The Court should order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza,” and “cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group”.
Additionally, it asked the Court to order Israel “to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives.”
While a verdict may be a long way off, a decision on provisional measures could come much sooner than that, Becker says. The Court can also decide to introduce measures of its own, instead of those specifically put forth in the South African application.
In this week’s initial hearing, South Africa will have to convince the ICJ that the Court has jurisdiction over the alleged crimes detailed in the case.
“It’s kind of a preliminary assessment of jurisdiction and that should be no problem here,” says Becker.
More importantly though, “South Africa has to establish that the claims it’s making in the case are plausible. That is, that there is at least a plausible case here of violations of the Genocide Convention, and then that there is a risk of irreparable harm that requires urgent action by the court.”
As to whether the Court will adopt all of South Africa’s proposed measures, Becker believes it is unlikely that it will go as far as to direct Israel to halt all military operations in Gaza.
“I think it’s more likely that the court will direct Israel to ensure that any military operations it is continuing to take in Gaza abide by Israel’s existing obligations under international law. And this would be a way for the court to signal its concern to Israel, that Israel needs to show more restraint in how it’s conducting its operations.”
Whether the Israeli Government would abide by the Court’s orders is another question.
‘Genocidal intent’
After this week’s initial hearings, a long road remains ahead for the South African and Israeli legal teams. Genocide is notoriously difficult to prove, mainly because of a key requirement, the demonstration of genocidal intent.
“Even in situations involving mass atrocities and even situations that might appropriately be characterized as war crimes, or crimes against humanity, those situations don’t necessarily meet the legal definition of genocide,” Becker explains.
“So it isn’t enough to show that Israel has engaged in acts that could be understood as constituting acts of genocide, so the mass killing of Palestinians… you have to also show that those acts were undertaken with the intent to physically destroy the group.
“That’s a very difficult legal standard to actually meet.”
In this case however, there has been a litany of such statements from high-ranking Israeli officials since 7 October that have been characterised as genocidal. These have come in spite of the official stated Israeli mission to “destroy Hamas”.
They include statements from the Prime Minister, the President and other senior political figures.
For example, on 9 October, Israeli Defence Minister Yoav Gallant said: “We are imposing a complete siege on Gaza. There will be no electricity, no food, no water, no fuel, everything will be closed. We are fighting against human animals and we are acting accordingly.”
On 29 October, Prime Minister Netanyahu quoted a biblical passage about wiping out an entire nation, saying: “Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.”
“It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved, it’s absolutely not true,” said President Isaac Herzog on 14 Oct.
“Invest that energy in one thing, erasing all of Gaza from the face of the earth. Gaza needs to be wiped out,” said Galit Distel Atbaryan, Israeli parliament member and former Minister of Information.
Nissim Veturi, Deputy Speaker of the Israeli parliament, said in a tweet that Israel must “do no less than burn Gaza. Who’s left in Gaza? Are there citizens? There are only tunnels, Hamas, and accursed terrorists who murdered children and are holding children hostage. We have to crush Gaza, Gaza is Hamas.”
More recently, National Security Minister Itamar Ben-Gvir expressed his support for the “voluntary” transfer of Palestinians out of Gaza and said Israeli settlements should be established in the territory, remarks that have drawn rare public criticism from the United States.
In the months since the Israeli siege, bombardment and ground invasion of Gaza began, there have been mounting calls from numerous experts for the campaign to be labelled a genocide.
As early as late October, high-ranking UN official Craig Mokhiber resigned from his position calling Israel’s actions in Gaza a “textbook case of genocide”.
In November, a group of UN experts warned of the possibility of Israel committing genocide in Gaza. Then in December, another group of experts from the UN said that Israel was working to expel the civilian population of Gaza.
“That’s going to be a real focal point of the case,” says Becker of the extreme rhetoric coming from Israeli officials.
“And that’s, in some ways, something that distinguishes this case from some other cases that had been brought at the ICJ under the Genocide Convention. But I would say that I think some of those, some not all, but some of those statements and their legal significance will be the subject of fierce legal debate.”
Becker expects the Israeli defence to involve casting such statements as referring to Hamas, rather than the entire Gazan population. Another angle of defence could include attempts to establish some daylight between the statements of officials and the actions of the state during its campaign.
Becker also thinks Israel will likely argue that some of those statements, listed in the South African application, do not officially represent the view of the state and are therefore not legally attributable to it.
“This is a case where there isn’t only, what we might describe as, a kind of ‘pattern of conduct’ evidence, or evidence of what we can see on the ground; Israel’s legal team is going to have to try to explain how those statements by Israeli officials do not, in fact, illustrate the requisite level of intent.”
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