The keys to why South Africa takes the Gaza war to the UN Court

South Africa has requested United Nations International Court of Justice (ICJ) to open proceedings against Israel for allegedly violating the Convention on the Prevention and Punishment of the Crime of Genocide (1948), and ask judges to issue precautionary measures to immediately suspend military operations in Gaza. Both countries are member states of the Convention, and South Africa hopes to demonstrate that Israel has taken actions to destroy the Palestinian population that go beyond self-defense.

The TIJ has set two hearings for this Thursday and Friday in The Hague, its official headquarters. The Israeli Government has already described the lawsuit as a “blood libel.” He plans to appoint, however, a legal team to defend himself against the accusations. Precautionary provisions are usually issued quickly and, at this stage, judges only have to decide whether there is a plausible argument that the greatest crime may be being committed. South Africa will have to prove that this is the case when addressing the merits of a case that could drag on for several years. These are some keys to the lawsuit against the Government of Benjamin Netanyahu.

Why can South Africa sue?

The Convention against Genocide obliges countries to prevent it and provides for the jurisdiction in these cases of the ICJ, a UN court that resolves disputes between States. On December 29, South Africa alleged in its lawsuit that “Israel's acts and omissions (…) are of a genocidal nature, given that they are committed with the specific intention (…) of destroying the Palestinians of Gaza as an integral part of the group national, racial and ethnic Palestinian”.

South Africa, which aspires to the issuance of provisional measures for the protection of the Palestinians, hopes to demonstrate that the dispute covers both its own obligations and those of Israel, which would be failing to comply with them. To this end, it includes in its petition to the ICJ the damage caused by the Israeli military offensive since last October 7 and points out that “more than 21,110 Palestinians have been killed in the Strip.” [la cifra ha subido desde entonces a más de 23.300]among them more than 7,729 minors [ahora más de 10.000]; more than 7,780 missing; and more than 55,243 [en la actualidad, más de 59.000] “injured Palestinians.” He further says that “Israel has devastated large areas of Gaza and damaged or destroyed more than 355,000 Palestinian homes.”

Although it condemns the Hamas attacks, which caused 1,200 deaths in Israel and the hostage taking on October 7, the petition points out that “no armed attack against a State, no matter how serious, justifies violations of the Genocide Convention.” .

What more does South Africa ask of the TIJ?

In addition to the cessation of Israeli military operations in Gaza, South Africa requests that “the deprivation of access to adequate food and water” of the population be prevented. That Israel refrain from taking measures that could aggravate or expand the dispute, and that it ensure that people “under its control do not publicly and directly incite genocide.” If they do so, they must be held accountable under the Convention.

To illustrate this, numerous statements by Israeli politicians, senior officials and relevant figures are included. They include, among others, the comments of Nissim Vaturi, a member of Likud, Prime Minister Benjamin Netanyahu's conservative party, who called for “wiping Gaza off the face of the earth” after the Hamas attack on October 7. Military personnel are also quoted, such as General Ghassan Allian, who said in reference to the Gazans and Hamas: “Human animals must be treated as such. They wanted hell; They will have hell.”

Are there precedents for similar lawsuits before the TIJ?

South Africa has followed the Gambia's lead in the case against Myanmar, two countries that are also members of the Genocide Convention. According to Gambia, the Myanmar army carried out “ethnic cleansing operations” against the Rohingya minority in 2016 with the intention of destroying them as a group. The Rohingya are a stateless, predominantly Muslim Indo-Aryan ethnic community, mostly living in western Myanmar, bordering Bangladesh. The ICJ recognized Gambia as the “actual plaintiff” in the case.

For Cedric Ryngaert, professor of International Law at the University of Utrecht, “South Africa wants to show that it can call Israel to task, but any country that signs the Convention is obliged to prevent genocide.” In a telephone conversation, he recalls that “The Gambia received the support of the Organization of Islamic Cooperation, which groups 56 countries, in the case of Myanmar.” “South Africa, a country in the global south, acts alone; for now”. Another precedent is that of the Netherlands and Canada, which in 2023 presented “a complaint against Syria for torture before the ICJ.”

Ryngaert explains about the case of Syria: “Then it was alleged that the Bashar al-Assad regime had tortured thousands of civilians in violation of the UN Convention against Torture (1984), and we see that there is already a pattern of action on the part of third countries for the application of international humanitarian law.” The jurist attributes this evolution to the non-compliance “with many norms related to human rights and the law of armed conflicts”, since if the ICJ makes a statement “it is a different matter because its decisions exert pressure on the countries.”

What does Israel respond?

Israel has invoked its right to defend itself against the accusations and maintains that its military operations comply with international law. Eylon Levy, government spokesperson, has assured that unprecedented measures have been taken to reduce the number of civilian victims. In a statement to the British network Sky News, Levy said on December 28: “We try to focus on Hamas and that is why we encourage the evacuation of the population to the designated humanitarian zones.” Before the step taken by South Africa, the Israeli Executive had indicated that the crimes perpetrated by Hamas on October 7 could constitute genocide, “such as the killing of some 1,200 Israelis and foreign citizens, and the wounding, torture and mutilation of people.”

According to William Schabas, professor of International Law at the British University of Middlesex, “Israel will argue that it is not committing genocide, it is acting in self-defense and has that right.” “But the ICJ does not have to decide right now whether there is a genocide underway. What the judges must do is conclude if there is a plausible argument that something could be committed to issue precautionary measures,” he says by phone.

“The commission of a genocide will have to be proven by South Africa when the time comes,” Schabas emphasizes. After the provisional measures, which may arrive in a matter of weeks, the deadlines will be longer. South Africa will have to present the report of the case. Israel will then respond by likely challenging the ICJ's jurisdiction in a preliminary objections debate that does not address the genocide itself. Then, if the case progresses, the merits of the matter can be entered. The ruling may come within two or three years. Maybe more.

In case of precautionary measures, will Israel comply with them?

Professor William Schabas answers: “It depends on what they ask of you. South Africa requests that Israel stop its military activities in
Gaza. If the judges order that, I suspect he won't do it.” Yes, it seems feasible to allow entry of medicines, food, water into the Strip… “Although it is also possible that they say that they are already doing it. Or that they will from now on.” What is clear are the repercussions of a possible Israeli refusal to comply with the ICJ. “Countries such as Canada, the Netherlands and others, which cooperate with Israel, will be under pressure to limit their material or political aid. “It will be very difficult for them because they will have to honor the TIJ order.”

His colleague Cedric Ryngaert shares this argument, “if the ICJ says that a genocide may be being committed.” “Sending weapons, for example, could make them complicit in genocide. Precautions have been requested and the substance of the case is not addressed, but it would be a signal.” The expert concludes that genocide “can be penalized, even if it has not been committed, under the concept of incitement; But proving genocidal intent is not easy.”

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