Keys to understanding South Africa's genocide claim against Israel at the ICJ

Eyes will be on The Hague, in the Netherlands, this Thursday, January 11 and Friday, January 12. A public hearing will be held there to examine the provisional measures requested by South Africa in its lawsuit before the International Court of Justice (ICJ) against Israel for committing “genocidal acts” in its military offensive in the Gaza Strip.

The lawsuit, filed on December 29, seeks emergency measures for Israel to cease hostilities. As stated by the UN, Pretoria asks that the ICJ order Israel “to stop killing and causing serious psychological and physical harm to the Palestinian population of Gaza, to stop deliberately imposing living conditions on them calculated to cause their physical destruction as a group and to allow the access to humanitarian aid.”

The resource imposed by the African country has been supported by multiple countries and even at least 900 popular movements, unions, political parties, governments and other organizations, which signed a letter urging States to support it. But what is the lawsuit about? And why has it attracted attention in different parts of the world?

What does the lawsuit filed by South Africa contain?

Is about an 84 page document in which Pretoria explicitly accuses Israel of perpetrating acts that are “genocidal in character.” because they are intended to cause the destruction of a substantial part of the Palestinian national, racial and ethnic group”.

In the document, South Africa also invokes its rights and obligations to “protect the Palestinians of Gaza from destruction.” Some that are framed in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948 —to which he subscribes, like Israel—and in which It establishes that States can take legal action “to prevent the crime of genocide from being committed.”

The text reads: “Israel's conduct – through its state organs, state agents and other persons and entities acting on its instructions or under its direction, control or influence – in relation to the Palestinians of Gaza constitutes a violation of its obligations under the Genocide Convention.”

Furthermore, according to 'elDiario.es'“much of South Africa's argument stems from the ICJ ruling on provisional measures that it handed down in the Gambia v. Myanmar case in 2020.”

It is important to emphasize that in South Africa requests precautionary measures. These are judicial decisions made for the purpose of protecting the rights of one of the parties in a legal process while it is ongoing. In that sense, they are taken before a final ruling is issued and seek to prevent irreparable damage from being caused during the time the legal process takes.

Therefore, in the document, Pretoria assures that the court is obliged to “establish whether the acts denounced are capable of falling within the provisions of the convention on genocide.”

What actions does South Africa consider genocidal?

South Africa details in the document each of the acts that it considers of a genocidal nature that Israel has carried out in Gaza since the conflict escalated on October 7 after the Hamas attacks and which led to a fierce Israeli response.

The first—of eight—is “the murder of Palestinians in Gaza”, in which it cites data from the Gazatí Ministry of Health, which reported, at the time of the complaint, more than 20,000 deaths, of which nearly 70% were women and children. As of the date of publication of this article, the figure exceeds 23,000.

Furthermore, it accuses Israel of causing serious physical and psychological harm to Palestinians in Gaza; and displace millions of people. On the other hand, it demands the deprivation of access to food and water. It points to the ineffectiveness of the delivery of humanitarian aid and warns of the deprivation of access to medical assistance.

It also accuses Israel of destroying “Palestinian life”, that is, of directing its attacks at places such as schools, homes or other types of civil infrastructure. He considers all of these as evidence of genocidal acts by Israel in Gaza.

How has Israel reacted?

Israel's reaction has been the opposite of what it had adopted decades ago—at least in its actions at the ICJ. The country was boycotting the UN court and the 15 judges who are part of the body. But this time he decided to defend himself.

Nevertheless, expressed his “displeasure” with the demand and assured that South Africa's accusations are unfounded.

“Israel rejects defamation with disgust”assured the Israeli Ministry of Foreign Affairs on the day Pretoria filed the lawsuit.

On the other hand, a spokesperson for the Government of Israel, Eylon Levy, assured that the country has taken measures to minimize civilian casualties. In this sense, he cited calls for the civilian population to evacuate to “safe zones” and the “humanitarian corridors” that have been established.

Furthermore, he questioned South Africa about allying itself with Hamas and assured: “History will judge them and judge them without mercy.”

For his part, the head of Israel's National Security Council, Tzachi Hanegbi, stated: “The State of Israel has been a signatory to the Genocide Convention for decades, and we will certainly not boycott the procedures. “We will respond and reject this ridiculous request.”

Thus, the person in charge of defending Israel is Aharon Barak, 87, who served as president of the Supreme Court of Israel.

What can the ICJ do?

The ICJ is the highest judicial body of the UN and its main functions are the resolution of “disputes in accordance with international law” and “the issuance of opinions on legal questions submitted to it by the organs or agencies of the United Nations system.” A specificity of the ICJ is that it can only judge States, not individuals.

This Thursday and Friday, the process will begin specifically of the provisional measures requested by South Africa. Thus, as pointed out elDiario.es“the ICJ is likely to issue an interim ruling within weeks, and certainly while Israeli attacks on Gaza continue.”

Provisional measures include, for example, whether the court has jurisdiction over the case and whether South Africa's arguments are admissible. Furthermore, Pretoria demanded that one of those measures be the suspension of Israeli military operations in Gaza.

This means that the determination as such of whether Israel is engaging in genocidal practices or not will not yet be known and could take much longer.

However, The ICJ has the power to sentence binding measures. That is, they have a mandatory effect and must be complied with by the affected parties.

This means that — at least on paper — if the court determines that Israel should abide by a cessation of hostilities, it should comply. However, – in practice – there are many countries that have not complied with the ruling of the ICJ, including the United States.

The ICJ also has no “coercive” means to enforce its verdicts. —as the UN itself points out on its website—; However, it is “the responsibility of the States to implement the decisions of the Court.”

Furthermore, it is the political entities of the UN, such as the United Nations Security Council or its General Assembly, that are in charge of executing the orders of the ICJ, which frequently causes the processes to be slowed down.

Despite this, the UN points out, the ICJ's provisional measures have a “strong symbolic dimension.” In this case, they could set a precedent, influence international public opinion, in the way that Israel carries out its attacks in Gaza, or even weaken the support of some Western countries. But its extent remains to be seen.

How does the UN define the crime of genocide?

At the center of the debate will surely be what the United Nations understands by “genocide” and whether Israel has engaged in practices of this nature. This definition is stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly in 1948. Article II establishes the following: “Genocide is understood to be any of the acts mentioned below, perpetrated with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group, as such:

1. Killing of group members;
2. Serious injury to the physical or mental integrity of group members;
3. Intentional subjection of the group to conditions of existence that will lead to its physical destruction, total or partial;
4. Measures aimed at preventing births within the group;
5. Forced transfer of children from the group to another group.

Likewise, the Convention establishes that genocide is a crime under international law and must be prevented and punished.

With local media