faq
Israel must answer to the International Court of Justice on charges of genocide. The government speaks of hypocrisy. What would a conviction mean?
What does South Africa accuse Israel of?
In its 84-page lawsuit, South Africa alleges that Israel is committing genocide against the Palestinians by killing them in the Gaza Strip, causing them severe mental and physical harm and creating living conditions “designed to bring about their physical destruction.” South Africa’s legal representative, Adila Hassim, spoke at the first court hearing of a “systematic pattern indicating genocidal intent.”
South Africa’s lawsuit alleges that Israel has failed to provide the population of the Gaza Strip with essential food, water, medicine, fuel, shelter and other humanitarian aid during the more than three-month-long war against the radical Islamic group Hamas.
South Africa also cites the high number of more than 21,000 deaths in the Gaza Strip, Israeli bombing raids, the forced escape of around 1.9 million of the total population of around 2.3 million, and attacks on hospitals and maternity clinics. The country quotes UN experts, witnesses and aid organizations. According to the authorities in Gaza, which is controlled by the Islamist Hamas, the number of victims has now risen to more than 23,000, meaning tens of thousands have been injured. The information cannot be independently verified.
How does South Africa argue?
Statements by Israeli ministers are also cited as evidence of genocidal intent. South Africa speaks of “direct and public incitement to genocide”. Threats to make Gaza uninhabitable as well as demands from right-wing extremist ministers to permanently expel Palestinians are cited. In the wake of the massacre by Hamas terrorists on October 7, Defense Minister Joav Gallant spoke of “human animals” and declared: “We will wipe out everything.”
South Africa now accuses Israel of violating the UN Genocide Convention in its war against Hamas. “The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in flagrant violation of the Genocide Convention.” Israel also failed to curb incitement to genocide by its own representatives in violation of the Genocide Convention. South Africa is calling on the International Court of Justice (ICJ) to impose emergency measures to end such alleged violations by Israel.
What is the basis for the lawsuit?
The United Nations (UN) adopted the “Convention on the Prevention and Punishment of the Crime of Genocide” on December 9, 1948 in response to the Holocaust and the crimes of the Nazi regime during World War II. South Africa invokes this UN Genocide Convention in its lawsuit against Israel. Both states have signed this and have thereby committed themselves not only not to commit genocide, but also to prevent and punish it.
The UN defines genocide or genocide as acts committed with the intent to “destroy, in whole or in part, a national, ethnic, racial or religious group as such.” This includes the targeted “killing of members of the group”, but also actions that aim to cause serious physical or mental harm, unacceptable living conditions, measures to prevent births or the “forcible transfer of children from the group to another group”. The intention to extinguish another group is already punishable under international law.
According to lawyers, genocide is difficult to prove because of the specific intent to destroy a group. The offense falls under international criminal law, as do war crimes, crimes against humanity and the crime of aggression. It was first used at the Nuremberg and Tokyo war crimes tribunals in 1945. Since then there have only been two verdicts for genocide: the massacre in Srebrenica (former Yugoslavia) in July 1995 and in Rwanda (April to July 1994).
How does Israel respond to the lawsuit?
Israeli President Isaac Herzog described the case as “cruel and absurd.” “We will be present before the International Court of Justice and proudly present our case of self-defense under our inherent right under international humanitarian law.”
A sharper reaction came from the Israeli Foreign Ministry, which described South Africa’s lawyers as “Hamas’ representatives in court” after the first court hearing. The lawyers’ appearance before the ICJ was “one of the greatest displays of hypocrisy in history”, which was “aggravated by a series of false and unfounded allegations”.
“South Africa has completely distorted the reality in the Gaza Strip after the October 7 massacre,” it said. South Africa’s government had “completely ignored the fact that Hamas terrorists have invaded Israel, murdered, executed, massacred, raped and kidnapped Israeli citizens, “just because they were Israelis, in an attempt to commit genocide.”
The Israeli military’s offensive from the air, sea and on the ground is a response to the surprise attack on the south of Israel by Hamas, which the USA and the EU have classified as a terrorist organization. According to Israeli figures, 1,200 people were killed in the attack and 240 people were abducted to the Gaza Strip. Hostages are still being held there.
The USA, Israel’s closest ally, Germany and Great Britain, among others, had previously declared that they did not share South Africa’s assessment.
What happens at the hearing?
First, South Africa explained its case on the first day of the hearing. On January 12, Israel has the opportunity to respond. Both countries have two hours each to present their arguments for or against emergency measures. There are no witness statements or cross-examinations. The presentation consists mainly of legal arguments presented by representatives of the two states and their teams of international lawyers.
The hearing is initially about an urgent application from South Africa. It had called on the ICJ to order an immediate end to military actions and to protect the rights of Palestinians. This means that the UN judges do not yet have to determine whether genocide has actually been committed. The possibility that the convention has been violated would be enough – but there must also be clear evidence of Israel’s intention to wipe out the Palestinians.
The request for emergency measures is therefore a first step in a case that will take several years to process. They are intended as a type of temporary restraining order to prevent a dispute from escalating while the court considers the case as a whole.
When can a judgment be expected and is it binding?
The judges will decide on the urgent application in a few weeks. Every saying is binding. The judges could theoretically order Israel to immediately end the violence to prevent further damage. They could also order that Israel must allow more humanitarian aid. The ICJ has no power to enforce enforcement. But international pressure on Israel would increase and a negative decision could damage the country’s reputation.
The court will not make a final decision on South Africa’s genocide allegations until the case is heard on the merits. It is not uncommon for several years to pass between the initial filing of the lawsuit and the actual hearing of the case.
What is the International Court of Justice?
The International Court of Justice is the highest judicial body of the UN and is therefore also called the World Court. The court, founded in 1945 after the Second World War, deals with disputes between states. Here it differs from the International Criminal Court (ICC). This is also based in The Hague, but handles cases of war crimes that are accused of individuals.
The ICJ has 15 judges. Both Israel and South Africa are allowed to send one judge each in addition to the permanent college. Representing South Africa is Judge Dikgang Ernest Moseneke, a former judge of the country’s Supreme Court. The South African delegation will be led by Justice Minister Ronald Lamoa. Israel sends former Supreme Court Justice Aharon Barak, a Holocaust survivor. The Palestinians, whose fate is the subject of the proceedings, play no official role in The Hague because they are not a member state of the UN.
Why is South Africa acting as a plaintiff here?
Any signatory state to the Genocide Convention can file a corresponding complaint with the ICJ. In South Africa, representatives of the Muslim minority and the black majority have been showing solidarity with the Palestinians for many years. They believe that they are being subjugated by the “apartheid state” of Israel just as South Africans were once subjugated by the white regime.
So far, the government in Pretoria has managed a complicated balancing act between Palestine solidarity and the more pragmatic trade and consular relations with Israel. A number of Jewish, almost exclusively white, South Africans have dual citizenship. However, the war in Gaza brought a turning point. In November, President Cyril Ramaphosa withdrew South African diplomats from Tel Aviv. Shortly afterwards, the South African parliament even voted to close the Israeli embassy in Pretoria.
(Source: dpa, AP, Reuters)