As a result of the ongoing humanitarian crisis in Gaza, the Republic of South Africa officially filed a case on the 29th of December against Israel with the International Court of Justice (ICJ), accusing the latter of genocide under the terms of the 1948 Genocide Convention. The Convention classifies genocide as, the intentional destruction of a protected national, religious, ethnic, or racial group, in whole or in part, by means of murder, physical or mental harm, the imposition of destructive living conditions, the prevention of births within the group, and the forcible transfer of children from that group to another.
Genocidal acts and intentions have been categorically denied by Israel, and an official ruling will most likely take years to come into place, but the Court has decided to act by ordering Israel to adopt provisional measures: short-term acts that aim to regulate the situation. South Africa initially appealed for nine such measures, namely insisting on an immediate ceasefire. That specific request was denied, even though such an order was given to Russia in a similar situation just two years ago. Only six official measures were imposed on Israel on January 26th.
The measures include the following:
- Israel must “take all measures within its power” to prevent acts prohibited in the Convention towards the Palestinian people;
- Ensure that the military forces align their actions with this objective;
- Prevent and punish public encouragement to commit genocidal or related acts;
- Take immediate and effective measures to provide humanitarian relief to Gaza;
- Prevent the destruction of evidence relevant to the allegations brought forward by South Africa; and
- Submit a report within a month of all the measures taken.
Orders one, two, five, and six passed with a vote of 15-2, with only the Israeli and Ugandan judges opposing them, while three and four passed with a vote of 16-1, only resisted by the Ugandan judge Sebitunde who was subsequently fired.
The measures were passed despite indecisiveness over the Court’s jurisdiction to handle the case. It may be a long time before its jurisdiction is confirmed, but the orders were issued in the meantime due to the conclusion that the case was “plausible and urgent,” among other legal prerequisites. South Africa’s right to present the case was also reaffirmed by acknowledging that the Genocide Convention’s obligations are “erga omnes,” meaning that they concern the entire international community. Regardless, Israel is arguing that the ICJ lacks authority to handle the case; the matter of jurisdiction will be decided in the ensuing stages of the proceedings.
Legally speaking, a war crime that involves the death of civilians, no matter how many, can only be declared “genocide” if genocidal intent is proven. Since that is very difficult to achieve, this case could be tried for years with little development. Another similar case being tried for genocide has been going on since 2019 when Gambia accused Myanmar of mass killing and displacement of Rohingya Muslims.
South Africa’s case is based on the claim that Israel has committed acts with clear genocidal intent, and it has presented patterns of actions conducted by political and military leaders as evidence. Israel countered that its actions are simply an answer to Hamas’ October 7th attack, insisting that it “may be seen as the real genocide in this situation.”
Statements made by Israeli officials during the past several months regarding Israeli actions in Gaza are being considered as possible incitement for the commission of genocidal acts This consideration has played a part in swaying the Court to South Africa’s side. Some of the notable statements examined include the Israeli Defense Minister Yoav Gallant’s claim that Israel is fighting “human animals” and that it aims to “eliminate everything.” President Isaac Herzog displayed a similar sentiment by stating, “It’s an entire nation out there that is responsible.” Both announcements inherently imply that the safety of civilians seems not to be the priority.
The country’s leaders have remained consistent in their stance after the Court’s rulings, insisting on fighting until Hamas is defeated and the Israeli hostages are released. Prime Minister Benjamin Netanyahu shows no sign of cooperative spirit, with the promise that his office will “continue to do what is necessary to defend our country and our people.” Yoav Gallant has expressed a similar attitude, disagreeing with the Court’s decision and attesting that “the state of Israel does not need to be lectured on morality to distinguish between terrorists and the civilian population in Gaza.”
There is an open possibility that other nations may join the case in support of either side. On January 11th, Germany stated that it would look to intervene by stepping in on Israel’s side, just as 32 states are involved in support of Ukraine in its case against Russia. This entire situation has put diplomatic pressure on the United States to push Israel toward the negotiating table and to call for a ceasefire. The US therefore finds itself at a crossroads; it is faced with potential domestic trouble in the case of not supporting Israel and with possible isolation on the worldwide political scene if it prevents an immediate ceasefire. President Joe Biden has reacted, expressing plans to appoint CIA Director William J. Burns to the Middle East in an attempt to help Hamas and Israel reach a deal that would lead to the release of hostages and a complete ceasefire.
Although the Court’s ruling could be viewed as a diplomatic victory for South Africa and its supporters, there is no concrete way of ensuring that Israel follows the provisional measures since there are no international enforcement measures in place. The only way for a more direct intervention to become possible would be to involve the United Nations Security Council, where members could vote for military action or economic sanctions. However, this vote would most likely be vetoed by the USA, as similar ones have been historically. Nonetheless, as the measures are legally binding, Israel’s potential transgressions could affect public opinion and make them lose support worldwide. Although the case could take many years to close, the situation is urgent enough that developments that take place in the near future could bear great significance for either side.
