CAN SOUTH AFRICA’S ICJ CASE AGAINST ISRAEL STOP WAR IN GAZA?

Last week, South Africa became the first country to file a suit against Israel at the International Court of Justice (ICJ) in The Hague, ramping up international pressure on Tel Aviv to stop the deadly and relentless bombardment of the Gaza Strip that it launched on October 7, 2023, and which has killed more than 22,000 civilians, a significant number of them children.

In the 84-page suit which South Africa filed with the court on December 29, it details evidence of brutality being perpetrated in Gaza and asks the Court – the United Nations body for resolving interstate disputes – to urgently declare that Israel has breached its responsibilities under international law since October 7.

The move is the latest in a long list of actions that Pretoria has taken since the start of the war on Gaza, including loudly and persistently condemning Israel’s attacks on Gaza and the West Bank, recalling the South African ambassador from Israel, referring the suffering of Palestinians to the International Criminal Court (ICC) and calling for an extraordinary meeting of BRICS countries to deliberate the conflict. The ICC takes on cases of alleged crimes committed by individuals, not states.

Here’s a breakdown of the ICJ case:

What are South Africa’s allegations against Israel?

South Africa has accused Israel of committing genocide in Gaza, in violation of the 1948 Genocide Convention which defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Genocidal actions listed in the suit include the killing of Palestinians in Gaza in large numbers, especially children; the destruction of their homes; their expulsion and displacement; as well as enforcing a blockade on food, water and medical assistance to the strip.

They also include the imposition of measures preventing Palestinian births by destroying essential health services crucial for the survival of pregnant women and babies.

All these actions, the suit reads, are “intended to bring about their [Palestinians] destruction as a group”.

Pretoria further blames Israel for failing to prevent and prosecute incitement to genocide, with specific reference to statements coming from Israeli officials throughout the war that have sought to justify the killings and destruction in Gaza.

South Africa has also specially requested that the ICJ move urgently to prevent Israel from committing further crimes in the strip – likely by issuing an order for Tel Aviv to halt its invasion. That request will be prioritised, the ICJ said in a statement, but did not specify a timeline.

“The proceedings are important in slowing the normalisation of any mass atrocities committed by Israel; they send a message that if a country commits mass atrocities, as Israel is doing, it must expect to be brought before an international court, for its record to be critiqued against international norms, and for its reputation on the international stage to take a hit,” she said.

Members of the Palestine Solidarity Campaign protest outside the Israeli consular office in Cape Town, South Africa, October 11, 2023 [Nic Bothma/Reuters]

What evidence has South Africa cited?

South Africa asserts that statements made by Israeli officials, including Prime Minister Benjamin Netanyahu, have demonstrated “genocidal intent”.

For example, the suit cites Netanyahu’s comparison of Palestinians to the Amalek, a biblical nation that God instructed the Israelites to destroy. The biblical verse states: “Now go and smite Amalek … kill both man and woman, infant.”

Furthermore, in his December 26 statement, Netanyahu said that despite the extensive destruction of Gaza and the killing of thousands, “we are deepening the fighting in the coming days, and this will be a long battle”.

Several other statements, including ones in which Israeli officials have portrayed the people of Gaza as a force of “darkness” and Israel as a force of “light”, have also been cited in the suit.

South Africa adds that the “scope of the Israeli military’s operations – its indiscriminate bombings and executions of civilians, as well as Israel’s blockade of food, water, medicine, fuel, shelter and other humanitarian assistance”, are proof of its claims. Those actions have pushed the strip to the “brink of famine”, the suit claims.

Besides genocide, South Africa claims that Israel is committing other violations of international law in the Gaza Strip, including launching an assault on Palestinian culture by attacking sites of “religion, education, art, science, historic monuments, hospitals and places where the sick and wounded are collected”.

Have similar cases been filed before?

Yes. Under the Genocide Convention, nation-states may file charges of genocide against other countries whether or not they are directly involved in the conflict. In 2019, The Gambia, on behalf of the Organisation of Islamic Cooperation, petitioned the court against Myanmar over its atrocities against the Rohingya people.

Israel and South Africa are both parties to the ICJ, meaning its rulings are binding on both of them. But while the ICJ has more weight than the UN Security Council where Israel is tightly shielded by the US, the court lacks enforcement power. In fact, the ICJ’s orders have been ignored in some cases with no serious consequences.

In March 2022, for example, one month after Russia invaded Ukraine, Kyiv filed a case against Russia at the Court. In that case, Ukraine also asked the ICJ to lay down emergency measures to stop Russia’s aggression.

The court did indeed order Moscow to halt military operations shortly after, stating that it was “profoundly concerned” by the assault on Ukraine. Nevertheless, more than a year later, the war in Europe continues.

What happens next?

South African authorities confirmed Tuesday that the ICJ has fixed a hearing for January 11-12. “Our lawyers are currently preparing for this,” Clayson Monyela, spokesperson for South Africa’s Department of International Relations and Cooperation, posted on X, formerly Twitter.

Just to be clear. The ICJ has scheduled a hearing of the case that #SouthAfrica has triggered. This is set down for 11-12 January 2024 at the Hague. Our lawyers are currently preparing for this. https://t.co/Cx1YceIYFM

— Clayson Monyela (@ClaysonMonyela) January 2, 2024

 

But proceedings can take time – years, even. The court is still deliberating on Gambia’s case against Myanmar from 2019, for instance. There have been evidential hearings in that case – the latest one in October 2023, when the court asked The Gambia to respond to Myanmar’s counterarguments.

South Africa proactively requested an expedited process in its December submission. Its call for an emergency order from the ICJ could produce fairly swift results – in a matter of weeks – as happened in the Ukraine case.

Responding to the suit, Israel’s Ministry of Foreign Affairs has vehemently denied allegations of genocide and has described Pretoria’s case as “blood libel” and a “despicable and contemptuous exploitation” of the court. A statement from the ministry also accused South Africa of being “criminally complicit” in Hamas attacks.

On Tuesday, spokesperson Eylon Levy confirmed that Tel Aviv will defend itself at The Hague hearings. “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy,” Levy told reporters.

Sarang Shidore, director of the Washington-based Quincy Institute, a think tank, said this stance could mean that Tel Aviv is taking the complaint as a serious challenge to its policies in Gaza.

While any rulings by the ICJ may have little bearing on the war itself, a ruling in favour of South Africa and the Palestinians would pile significant pressure on Israel’s number one backer and de facto weapons depot – the US government.

“The Biden Administration is increasingly vulnerable to domestic opponents of the war and international charges of double standards,” Shidore said, alluding to the stark difference between the US’s stance on the Russia-Ukraine war and its position on the Gaza war. A ruling against Israel though, could have “implications for the standing of the United States”, he said.

“My sense is that the Biden Administration and some key European allies will strongly back Israel at the ICJ,” Shidore added. “But we shall see how this support is precisely worded.”