January 11, 2024
Update: On January 26, the International Court of Justice issued a provisional ruling on this case, declining to order Israel to cease its defensive military operation against the Hamas terror group. This decision dealt a major blow to South Africa's outrageous and meritless case. Learn more here.
The International Court of Justice will hold its first hearings this week in a case filed by South Africa accusing Israel of committing genocide against Palestinians in Gaza.
Let’s be clear: this claim is, as U.S. Secretary of State Antony Blinken clearly stated on January 9, “meritless.” Israel accused South Africa of an “absurd blood libel,” adding that the allegations are baseless and stoke antisemitism. And if anyone is guilty of genocide, it’s Hamas, which carried out a genocidal attack on October 7.
While it could take years for the panel of judges to rule on the spurious genocide claim, South Africa has asked the judges to issue a restraining order of sorts in the coming weeks that could, among other things, call on Israel to halt its effort to root out Hamas and rescue the remaining hostages until a verdict is reached. Here’s what you need to know.
What is the International Court of Justice?
The ICJ, or World Court, based in the Hague, in the Netherlands, was established in 1945 as the United Nations’ judicial arm to resolve international disputes between states and to issue advisory opinions on matters of international law at the request of UN entities. It is not the same as the International Criminal Court, also based in the Hague, which was established in 2002 by the Rome Statute and prosecutes individuals for war crimes, crimes against humanity and genocide.
Like many treaties, the 1948 International Convention on the Prevention and Punishment of the Crime of Genocide, drafted after the Holocaust, indicates that the ICJ has jurisdiction to resolve disputes between its parties - which include Israel and South Africa - concerning the fulfillment of their obligations.
For this case, the ICJ’s 15 judges will be joined by additional ad hoc judges selected by Israel and South Africa. Israel has nominated retired Supreme Court President and Holocaust survivor Aharon Barak. South Africa has nominated Dikgang Ernest Moseneke, a former Deputy Chief Justice.
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What is at stake at the upcoming hearing?
South Africa instituted proceedings against Israel at the ICJ on December 29, alleging that Israel is committing the crime of genocide against Palestinians in Gaza. It also alleges that Israel has failed to prevent and punish incitement to genocide committed by members of the government and others. Since both allegations contradict the treaty, South Africa has asked the Court to find Israel in violation of the Genocide Convention, order it to cease, and take measures to provide victims with redress.
It will likely take years for the ICJ to examine these claims and reach a decision on their merits. Other disputes concerning the Genocide Convention brought by Ukraine against Russia in 2022 and by the Gambia against Myanmar in 2019 remain in progress.
The hearings that will take place on January 11 and 12 concern an urgent request that South Africa has made. South Africa wants the Court to issue a “provisional measures” order calling on Israel to immediately take several actions to prevent violations of the Genocide Convention from occurring during the lengthy deliberations. At the hearings, representatives of South Africa (on January 11) and Israel (on January 12) will present their positions on the provisional measures request.
The Court’s decision on this provisional measures request could come within days or a few weeks of the hearing. Chief among those requests is a measure calling for Israel to halt its military operation in Gaza, much like the Court ordered Russia to halt its invasion of Ukraine in 2022.
It is important to know that calling for a halt would not reflect the judges’ view on the overall merits of South Africa’s claims. Instead, the ICJ will use a very low standard of proof to assess whether there is a need to protect and prevent irreparable harm to Palestinians in Gaza while it determines whether South Africa’s claims are “plausible.” The low standard of proof reflects the protective purpose that this tool is meant to serve.
Why is South Africa accusing Israel of genocide?
The case filed by South Africa is only the latest of a long series of anti-Israel positions the country has taken. In recent years, its historic alliance with the Palestinian Liberation Organization (PLO) has shifted to also encompass Hamas, the antisemitic terror organization that controls Gaza.
But these accusations represent the most dangerous and deceptive rhetoric to date. The implied hypocrisy that the survivors of genocide are now committing one of their own makes for a powerful talking point in the war of words surrounding the Israel-Hamas War.
The possible motives are multiple. South Africa’s governing party, the African National Congress political party, is likely seeking to stem a tide of vote losses in advance of national elections set for later this year. It likely believes its posturing on this issue will win back former voters. In this context, the ICJ claim may provide a distraction from pressing domestic issues that have plagued the party such as persistent unemployment, inequality, and poverty.
To that end, in November, South Africa recalled its diplomats from Israel and called on the International Criminal Court to issue arrest warrants for Israeli Prime Minister, Benjamin Netanyahu, and other Israeli leaders for “statements of genocidal intent” and other alleged war crimes. Israel withdrew its ambassador from Pretoria for consultation.
South Africa’s legal team is led by John Dugard, who falsely accused Israel of committing the crime of apartheid against Palestinians when he served as the UN’s special rapporteur for human rights in the Palestinian territories during the 2000s. A victory before the ICJ would be a feather in his cap.
Also joining the South African delegation is former U.K. opposition leader Jeremy Corbyn, a fierce critic of Israel who recently refused to call Hamas a terror group. Corbyn was ousted by the Labour Party after a report revealed rampant antisemitism that forced a number of Jewish members and lawmakers to leave the party at the time. A victory for him would offer redemption.
How Israel will illustrate that the accusation is baseless
A government spokesman for Israel accused South Africa of an "absurd blood libel," adding that the allegations are baseless and stoke antisemitism.
Israel will be represented at the ICJ by a 3-person team: Gilad Noam, Deputy Attorney-General for International Affairs; Dr. Tal Becker, legal adviser of the Ministry of Foreign Affairs and British Barrister Professor Malcolm Shaw.
Israel’s team is reportedly planning to present raw videos from bodycams worn by terrorists on October 7 that demonstrate that Israel’s military campaign in Gaza was undertaken in self-defense in response to a genocidal attack against it by Hamas, in compliance with international law. This would convey to the Court that it would be inappropriate for it to order Israel to cease its military operations at the provisional measures stage.
Israel’s team will also likely emphasize the extensive precautionary measures taken by the IDF to avoid disproportionately harming Palestinian civilians and the ongoing humanitarian relief being facilitated by Israel since mid-October to render baseless South Africa’s assertion that Israel is acting with genocidal intent.
Since the start of the war, the Jewish state has transferred over 11,000 tons of medical supplies to Gaza—equivalent to 56 times the Statue of Liberty's weight. Israel has also transferred over 78,870 metric tons of food, 17,260 metric tons of water, and 16,210 metric tons of shelter equipment.
Israel’s team will also likely seek to rebut South Africa’s presentation of callous statements about Palestinians made by Israeli political figures by pointing to oft-repeated statements by those with actual command authority that Israel’s war is against Hamas, not Palestinian civilians in Gaza.
Officials, leaders, experts around the world rebut South Africa’s claim
U.S. Secretary of State Antony Blinken called the accusation of genocide “meritless” and lambasted the claim against Israel, saying “it distracts the world from all of these important efforts.”
“It’s particularly galling, given that those who are attacking Israel – Hamas, Hizballah, the Houthis, as well as their supporter, Iran – continue to openly call for the annihilation of Israel and the mass murder of Jews,” he said.
John Kirby, communications coordinator for the U.S. National Security Council, also called South Africa’s allegation “meritless, counterproductive, and completely without basis in fact whatsoever.”
In earlier statements, he has said the term “genocide” to describe the Israeli operation is not appropriate.
“What Hamas wants, make no mistake about it, is genocide. They want to wipe Israel off the map ...That’s genocidal intentions,” Kirby said in December. “Yes, there are too many civilian casualties in Gaza … And yes, we continue to urge the Israelis to be as careful and cautious as possible. But Israel is not trying to wipe the Palestinian people off the map. Israel’s not trying to wipe Gaza off the map. Israel is trying to defend itself against a genocidal terrorist threat. If we’re going to start using that word – fine. Let’s use it appropriately.”
A spokesman for the German government has made it clear that Germany does not view Israel's military actions in Gaza as genocide.
Retired Canadian Supreme Court Justice Rosalie Abella also has lambasted South Africa’s genocide case against Israel as an abuse of the postwar legal order.
Meanwhile, French historian Vincent Duclert, who examined France’s role in the 1994 Rwandan genocide of Tutsis, has said “a humanitarian situation, even frightening, is not enough to define genocide.”
