The International Court of Justice (ICJ), the highest judicial body of the United Nations, held public hearings earlier this month in the case South Africa brought against Israel at the end of 2023. South Africa alleges that Israel is violating the Convention on the Prevention and Punishment of the Crime of Genocide (usually called the Genocide Convention)—through its actions inside Gaza. Court proceedings could take years, but South Africa is requesting an immediate order for Israel to halt military operations in the Gaza Strip.
What is the International Court of Justice?
The ICJ was established alongside the United Nations in 1945 as the judicial body for the U.N. The court handles disputes between member states within the scope of international law. The ICJ is made up of 15 judges elected for nine-year terms. Each member state’s government appoints a panel of international law experts to nominate ICJ judges. Those panels can nominate candidates outside their country. Sarah Cleveland, a Columbia Law School professor newly elected to the ICJ, was nominated by 50 national groups, for example. The U.N. Security Council and the General Assembly then vote on the nominations separately until the bodies have consensus.
Five judges are scheduled to retire at the beginning of February 2024, so an initial decision on South Africa v. Israel is expected before then. Beyond that, if the court decides to take up the case, a decision will likely take years.
Like the International Criminal Court, which was created by the U.N. but exists separately from it, the ICJ operates from The Hague in the Netherlands. The ICJ is a body of the U.N., and adjudicates disputes between states, typically breaches of treaties or the right to self-determination. It has no authority to investigate individuals or determine outcomes in criminal cases, which is the purview of the International Criminal Court. In recent years, the ICJ has been brought in on more human rights issues and also issues advisory opinions regarding international law at the behest of various U.N. agencies.
What is South Africa alleging?
The case of South Africa v. Israel in the ICJ is based on the Genocide Convention, a treaty signed in 1948 that outlined the legal framework for defining genocide and tasked signatories “to prevent and to punish” the atrocity. The Genocide Convention defined genocide as: “Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
On October 7, 2023, Hamas terrorists crossed the border between Gaza and Israel and killed approximately 1,200 people, and took more than 200 hostage. Some Hamas militants who partook in the attack wore cameras, recording—with some live-streaming—themselves intentionally targeting civilians for slaughter. Hamas is still holding approximately 100 hostages.
Israel formally declared war against Hamas the following day, responding with airstrikes and ground forces in Gaza. The Hamas-operated Gaza Ministry of Health estimates more than 25,000 people have been killed in Gaza since October 7, 2023, including more than 6,000 children. The Ministry of Health does not distinguish between civilians and combatants. The Israeli military believes it has killed 9,000 combatants, but does not deny a high civilian casualty rate.
The Gaza Strip is a densely populated, urban environment home to more than 2 million people. Israel asserts that Hamas has embedded its own infrastructure within civilian buildings, including schools and hospitals, making it difficult to avoid civilian casualties.
South Africa, however, alleges that “Israel’s acts and omissions in relation to Palestinians violate the Genocide Convention.” In keeping with the definition of genocide, South Africa alleged that “Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.” The scope of Israel’s alleged crimes, according to South Africa, span “Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter, and other humanitarian assistance for the besieged and blockaded Palestinian people,” to reports that Israeli soldiers performed summary executions in Gaza City, killed Palestinians along evacuation routes, and executed airstrikes on refugee camps.
In their opening remarks during last week’s public hearing, South Africa’s legal team discussed the military operations in Gaza as an effort to eradicate the entire population of Palestine. They focused heavily on Israeli airstrikes targeting civilian infrastructure, but did not mention Hamas’ use of civilian infrastructure for housing its military operations.
In its attempt to prove intent to commit genocide, South Africa highlighted the various ways it alleges Israeli leadership conflates Hamas with the general population in the Palestinian territories, arguing that Israel’s self-proclaimed mission to destroy Hamas is in reality a mission to destroy all Palestinians. South Africa submitted evidence such as Israeli Minister of National Security Itamar Ben-Gvir stating: “When we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy—they’re all terrorists, and they should also be destroyed.” South Africa also submitted as evidence statements from Israeli soldiers calling for the eradication of villages, destroying homes, or celebrating deaths.
What is Israel’s response?
The following day, Israel used its opening remarks to declare that Israel is in “a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.” While acknowledging the tragedy of civilian casualties, Israel accused South Africa of minimizing Hamas’ responsibility for civilian suffering in Gaza. “The harsh realities of the current hostilities are made especially agonizing for civilians given Hamas’ reprehensible strategy of seeking to maximize civilian harm to both Israelis and Palestinians, even as Israel seeks to minimize it.”
The defense team’s first arguments focused heavily on the plight Palestinians face because of Hamas, such as the diversion of international aid, creation of tunnels beneath civilian infrastructure, and Hamas’ decision to entrench itself within civilian populations for protection.
The defense denied Israeli forces have broken the laws of armed conflict, calling Israel’s response “in accordance with international humanitarian law in a proportionate manner.” Attorneys did say that individual service members who do breach the code of conduct would be held accountable in Israeli courts. The team also acknowledged that some public figures, such as the Minister of Heritage Amihai Eliyahu, have made statements that were “completely outside the policy- and decision-making processes in the war” and “immediately repudiated.” The team provided documentation of directives to the Israeli Defense Forces that “attacks will be solely directed towards military targets, while adhering to the principles of distinction, proportionality, and the obligation taking precautions in attacks in order to reduce collateral damage.”
Israel’s team also highlighted the relationship between South Africa and Palestinian leadership, which, during the post-apartheid era, South Africa itself has not been shy about. South Africa maintains diplomatic relations with Hamas, alongside Iran, Russia, Qatar, and Turkey. In their remarks, South Africa’s attorneys quoted Nelson Mandela: “In extending our hands across the miles to the people of Palestine, we do so in the full knowledge that we are part of a humanity that is at one.” Israel’s team, however, highlighted that South Africa hosted a senior Hamas delegation in Johannesburg for a “solidarity gathering” in December.
In recent years, South Africa—which itself is in dire economic straits and is rife with corruption—has faced backlash for its mixed responses to human tragedy, not least of which is its official position of neutrality in the Ukraine-Russia war, while maintaining close ties to Moscow. South Africa invited Russian President Vladimir Putin to attend the BRICS (Brazil, Russia, India, China, and South Africa) summit in Johannesburg last spring, despite an outstanding warrant for his arrest from the International Criminal Court. South Africa is party to the court and would be expected to execute the arrest warrant. South African President Cyril Ramaphosa requested permission from the International Criminal Court not to arrest Putin if he attended, though Putin eventually decided to attend virtually.
What kind of process will the ICJ follow?
South Africa is seeking a preliminary emergency ruling—stating that genocide is plausibly occurring in Gaza—and a court order to Israel to cease military operations immediately. While Israel is cooperating with the court proceedings, it is unclear if Israeli leadership would respect demands for an immediate cessation of military operations. “We will restore security to both the south and the north. Nobody will stop us—not The Hague, not the axis of evil, and not anybody else,” Israeli Prime Minister Benjamin Netanyahu said earlier this month. The ICJ does not have an enforcement mechanism for rulings.
The 2019 ICJ dispute between Gambia and Myanmar may be an example of how the South Africa/Israel case may play out. In November 2019, Gambia filed a case in the ICJ against Myanmar, alleging Myanmar breached the conditions of the Genocide Convention, failing to “prevent and punish” acts of genocide committed against the Rohingya people. At the end of January 2020, the ICJ issued an order to Myanmar to prevent and punish any further acts of atrocity, preserve evidence related to the case, and submit regular reports to the ICJ to prove compliance.
This case is still ongoing, with oral arguments scheduled in both May and December 2024. While South Africa is requesting an initial ruling for Israel to cease military operations in Gaza immediately, the full case could take years to adjudicate. The International Criminal Court has been separately investigating accusations of war crimes within territories controlled by the Palestinian Authority—by both Israel and Palestinian leadership—since 2021, including violence perpetrated since October 7, 2023.
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