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South Africa’s Genocide Case Against Israel: ICJ’s Ruling Will Be Public

This week, Israel has to make an appearance before the International Court of Justice in a high-stakes case. This case could determine the course of the barbarous war in Gaza.

It is an out-of-the-ordinary case. Experts say it has never happened before that the Jewish state is being tried under the United Nations’ Genocide Convention, which was prepared during the Holocaust, after the Second World War, in light of the atrocities committed against the Jewish people.

The South African government filed the case against Israel, blaming it for not fulfilling its responsibilities under the convention in its war on Hamas in Gaza.

The Prime Minister of Israel, Benjamin Netanyahu, called it a “false accusation”, and Israel has firmly rejected it.

Israeli President Isaac Herzog said on Tuesday that his country will file a case “using self-defense” to represent that it is doing its “utmost” under “extremely complicated circumstances” to stop civilian fatalities in Gaza.

Eliav Lieblich, a professor of international law at Tel Aviv University, told CNN the case is politically and legally important. He said, “An allegation of genocide is the gravest international legal allegation that can be made against a state”.

What are South Africa’s claims?

With the claims that Israel is committing genocide against Palestinians in Gaza and failing to prevent genocide, South Africa is filing a case against Israel in the ICJ, also known as the World Court.

South Africa said in its 84-page filing to the court: “More gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.

South Africa says Israel’s acts in Gaza are genocidal “because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”.

“The acts in question include 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,” it added.

According to the Hamas-run Ministry of Health in Gaza, more than 23,000 people have been killed in Gaza since October 7.

The United Nations called genocide an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

The UN says that it was developed “partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust.”

In eight pages, the filing at the ICJ explains what South Africa depicts as “expressions of genocidal intent” by Israeli leaders, including Prime Minister Benjamin Netanyahu and members of his cabinet.

South Africa has also requested the court to order Israel to stop its war in Gaza by issuing “provisional measures”, which it said were “necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people.” A provisional measure is a temporary order to stop actions.

The Organization of Islamic Cooperation, a grouping of 57 Muslim countries, as well as Jordan, Turkey, and Malaysia, have supported the case.

What is the International Court of Justice, and what does it do?

The ICJ is based in The Hague, Netherlands, and was initialized by the Charter of the United Nations in June 1945.

The court judges for governments, while the International Criminal Court, also in The Hague, prosecutes individuals. The court has no authority over Israel because it doesn’t recognize the ICC. Israel, however, is a participant in the Genocide Convention, which gives the ICJ authority over it.

Member states of the UN and those who are participants in the ICJ can present cases. The court accepts only those cases in which each state has accepted its authority. There are 15 judges in the ICJ who serve nine-year terms. The current judges are from the US, Russia, China, Slovakia, Morocco, Lebanon, India, France, Somalia, Jamaica, Japan, Germany, Australia, Uganda, and Brazil. Every three years, five seats come up for election that have no term limit.

South Africa’s Dire Tladi is one of those four new judges who will take their seats in February.

Ad-hoc judges can be chosen by parties in belligerent cases (between two states)—in the case of Israel and South Africa—bringing the number of judges in the case to 17. South Africa has appointed Dikgang Moseneke, the country’s former deputy chief justice, and Israel has chosen ex-president Aharon Barak to the country’s Supreme Court.

Experts say a final ruling could take years.

How has Israel responded to the case?

Israel has called the case “blood libel” by South Africa, a thinly veiled accusation of antisemitism, and Netanyahu has in turn said that it is Hamas that has committed genocide, adding the Israeli military is acting in “the most moral way” and “does everything to avoid harming civilians.”

The prime minister said, “And I ask: where were you, South Africa, and the rest of those who slander us, where were you when millions were murdered and displaced from their homes in Syria, Yemen and other arenas. You weren’t there.”

Even so, Israel will make an appearance before the court.

And the reason is that it is a part of the UN’s 1948 Genocide Convention, which was drafted in the aftermath of the Holocaust. The pact gives the ICJ the authority to settle the cases, which can be brought by parties not directly affected by the alleged annihilation in question.

Lieblich said, “since the court clearly has jurisdiction, it would be strange if Israel would simply not appear”, “also, genocide is a grave allegation, and states usually want to make their case.”

The Israeli public’s view of the case shows the political dispute in the country, Lieblich said. “Some view the proceedings as just another case of international bias against Israel. Many others are angry because they think that the case was only made possible because of irresponsible statements by far-right politicians that in their views don’t represent actual policy.”

But he stated that there are few people in the Israeli mainstream who are willing to accept the genocide accusations. “They mostly view the war as one of self-defense against Hamas, which due to the latter’s tactics result in wide but unintended harm to civilians.”

Referring to an Israeli diplomatic cable, Axios reported that to support its position and create international pressure against the case, Israel has deployed its ambassadors. Its “strategic goal,” it said, is for the court to put away the request for an order, hold back from alleging Israel of committing genocide, and accept that it is operating according to rules and regulations.

“A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications,” Axios cited the cable as saying.

Israeli government spokesperson Eylon Levy said Pretoria is “criminally complicit with Hamas’ campaign of genocide against our people.”

He also accused it of double standards and supported former Sudanese President Omar al-Bashir, who faces a warrant issued by the ICC.

In a speech posted on X on January 2, he said: “How tragic that the rainbow nation that prides itself on fighting racism will be fighting pro bono for anti-Jewish racists,” he said in a January 2 speech posted on X. “We assure South Africa’s leaders: History will judge you. And it will judge you without mercy.”

Lieblich said it seems like South Africa is positioning itself in opposition to the US’ control of the international order.

“While it pursues the case against Israel, South Africa has criticized the ICC’s arrest warrant against Vladimir Putin and has also refrained in the past from arresting Omar al-Bashir,” he said. “So, there is a clear international statement here. South Africa has been very vocal about what it views (as) Western ‘double standards and this case is a part of that campaign.”

Why is this case against Israel significant?

In the past, the ICJ has ruled against Israel, but it did so through invalid “advisory opinions” that are requested by UN bodies such as the General Assembly.

This is the first time the ICJ has taken legal action against Israel in what is known as a “contentious case,” where states directly file cases against each other.

In 2004, the ICJ mentioned that obstacles to Israel’s separation from the occupied West Bank were in violation of international law by issuing an advisory opinion. Israel overlooked that decision.

Experts said it will be the first time the ICJ has found a state has committed genocide if it eventually declares the decision that Israel is directly responsible for genocide.

Lieblich said, “This would be a significant precedent first and foremost because the ICJ never ruled, so far, that a state actually committed genocide”, “The farthest it went was to rule that Serbia failed to prevent genocide by militias in Srebrenica. In this sense, such a ruling would be legally uncharted territory,” he added.

In recent years, both Myanmar and Russia have had to face provisional measures in genocide cases, while the court has not declared any state directly responsible for genocide.

Without appeal or binding, all ICJ decisions are final.

But the ICJ can’t guarantee adherence. For example, the court ordered Russia to instantly stop its military campaign in Ukraine in March 2022. Kyiv, who brought the case, resisted the basis of Russia’s invasion and requested emergency measures against Russia to stop the violence before the case was fully heard.

What will happen if the court orders Israel to stop the war?

On Friday, Israel has to make an appearance in public hearings in court to face South Africa’s genocide allegations.

Usually, a ruling on genocide can take more time to prove, but the ruling on the Gaza war that Pretoria has demanded the ICJ for could come much sooner.

A London-based lawyer and international justice expert, Daniel Machover, told CNN that before the final decision on genocide, a provisional measure should be a quick decision that would be taken.

South Africa, he said, only needs to represent that it has fulfilled its duty to prevent genocide, that there is a “plausible legal argument” that infractions of the Genocide Convention are or may be taking place, and that there is a real and upcoming risk that irrecoverable prejudgment will be caused to Gaza residents before the court gives its final ruling, such that the court needs to order Israel to stop the war.

Francis Boyle, an American human rights lawyer who won two requests at the ICJ under the Genocide Convention against Yugoslavia on behalf of Bosnia and Herzegovina, told Democracy Now that according to documents submitted by South Africa, he is sure that Pretoria will indeed win “an order against Israel to cease and desist from committing all acts of genocide against the Palestinians.”

Boyle, based on his experience in the Bosnian case, said the order could come within a week of this week’s hearing.

Lieblich doubts that Israel will halt the fighting if the court issues an injunction on the war. Instead, there is a possibility that it attacks the validity of the court and its judges, “considering that some of them are from states that don’t recognize Israel.” It would also matter whether the decision is unanimous, he added.

“The consequences of non-compliance might range from reputational harm and political pressure to sanctions and other measures by third states or further resolutions in the UN,” he said. “The key for Israel would probably be how its key allies would act in such a case.”

He also said that while the margin for an injunction is relatively low, in the main case, for proving genocide, two aspects are needed: proof that certain unlawful acts were committed, and proof that these acts were committed with the specific intention of destroying a certain group.

“In past ICJ cases the court required a high threshold to prove such allegations,” he said. “Here the challenge for South Africa would be to prove that statements by some Israeli officials actually reflect the state’s ‘intent’ as a whole, and also that Israel’s actions on the ground were both unlawful and actually tied to an intent to destroy the group as such.”

Could the ICJ’s ruling have effects outside Israel?

According to experts, the effects of an ICJ ruling could spread beyond Israel. It would not only embarrass Israel’s closest ally, the US, but could also accuse Washington of having violated the Genocide Convention.

An American political scientist, John Mearsheimer, wrote, “Even though the South African application focuses on Israel, it has huge implications for the United States, especially President Joe Biden and his principal lieutenants,” 

“Why? Because there is little doubt that the Biden administration is complicitous in Israel’s war, he said.

Biden has accepted that Israel is carrying out “indiscriminate” bombing in Gaza, but he has also sworn to protect the country. The US has ignored Congress twice to sell military equipment to Israel during the war.

Mearsheimer wrote, “Leaving aside the legal implications of his behavior, Biden’s name – and America’s name – will be forever associated with what is likely to become one of the textbook cases of attempted genocide.”

Even if Israel doesn’t follow an order by the ICJ, there will be a responsibility for other signatories to comply, said Machover. “So, anyone assisting Israel at that point will be in breach of that order.”

“We could have worldwide litigation if states don’t stop assisting Israel… there will be legal ripples across the world” he said.

The case could also have an influence on the Israeli public, Machover said. He is assured that most Israelis “have not looked in the mirror” and have no awareness of the real effects of the war on Palestinians in Gaza.

The ICJ case, he hopes, would lead the Israeli public to focus on “some sort of self-reflection.”

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