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EXPLAINER
News


CAN SOUTH AFRICA’S ICJ CASE AGAINST ISRAEL STOP WAR IN GAZA?

South Africa’s case might take years, but it could add weight to growing
international calls for Israel to stop the war.


Thousands of people protest as part of the International Day of Solidarity with
the Palestinian People in Johannesburg, South Africa, on November 29, 2023 [Kim
Ludbrook/EPA-EFE]
By Shola Lawal
Published On 3 Jan 20243 Jan 2024

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Last week, South Africa became the first country to file a suit against Israel
at the International Court of Justice (ICJ) in The Hague, ramping up
international pressure on Tel Aviv to stop the deadly and relentless bombardment
of the Gaza Strip that it launched on October 7, 2023, and which has killed more
than 22,000 civilians, a significant number of them children.

In the 84-page suit which South Africa filed with the court on December 29, it
details evidence of brutality being perpetrated in Gaza and asks the Court – the
United Nations body for resolving interstate disputes – to urgently declare that
Israel has breached its responsibilities under international law since October
7.

The move is the latest in a long list of actions that Pretoria has taken since
the start of the war on Gaza, including loudly and persistently condemning
Israel’s attacks on Gaza and the West Bank, recalling the South African
ambassador from Israel, referring the suffering of Palestinians to the
International Criminal Court (ICC) and calling for an extraordinary meeting of
BRICS countries to deliberate the conflict. The ICC takes on cases of alleged
crimes committed by individuals, not states.

Here’s a breakdown of the ICJ case:


WHAT ARE SOUTH AFRICA’S ALLEGATIONS AGAINST ISRAEL?

South Africa has accused Israel of committing genocide in Gaza, in violation of
the 1948 Genocide Convention which defines genocide as “acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or
religious group”.

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Genocidal actions listed in the suit include the killing of Palestinians in Gaza
in large numbers, especially children; the destruction of their homes; their
expulsion and displacement; as well as enforcing a blockade on food, water and
medical assistance to the strip.


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They also include the imposition of measures preventing Palestinian births by
destroying essential health services crucial for the survival of pregnant women
and babies.

All these actions, the suit reads, are “intended to bring about their
[Palestinians] destruction as a group”.

Pretoria further blames Israel for failing to prevent and prosecute incitement
to genocide, with specific reference to statements coming from Israeli officials
throughout the war that have sought to justify the killings and destruction in
Gaza.

South Africa has also specially requested that the ICJ move urgently to prevent
Israel from committing further crimes in the strip – likely by issuing an order
for Tel Aviv to halt its invasion. That request will be prioritised, the ICJ
said in a statement, but did not specify a timeline.

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South Africa’s documentation is particularly needed amid heightened
disinformation around the war, and for other, wide-reaching purposes, said Mai
El-Sadany, a human rights lawyer and director of The Tahrir Institute for Middle
East Policy.

“The proceedings are important in slowing the normalisation of any mass
atrocities committed by Israel; they send a message that if a country commits
mass atrocities, as Israel is doing, it must expect to be brought before an
international court, for its record to be critiqued against international norms,
and for its reputation on the international stage to take a hit,” she said.

Members of the Palestine Solidarity Campaign protest outside the Israeli
consular office in Cape Town, South Africa, October 11, 2023 [Nic
Bothma/Reuters]


WHAT EVIDENCE HAS SOUTH AFRICA CITED?

South Africa asserts that statements made by Israeli officials, including Prime
Minister Benjamin Netanyahu, have demonstrated “genocidal intent”.

For example, the suit cites Netanyahu’s comparison of Palestinians to the
Amalek, a biblical nation that God instructed the Israelites to destroy. The
biblical verse states: “Now go and smite Amalek … kill both man and woman,
infant.”

Furthermore, in his December 26 statement, Netanyahu said that despite the
extensive destruction of Gaza and the killing of thousands, “we are deepening
the fighting in the coming days, and this will be a long battle”.

Several other statements, including ones in which Israeli officials have
portrayed the people of Gaza as a force of “darkness” and Israel as a force of
“light”, have also been cited in the suit.

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South Africa adds that the “scope of the Israeli military’s operations – its
indiscriminate bombings and executions of civilians, as well as Israel’s
blockade of food, water, medicine, fuel, shelter and other humanitarian
assistance”, are proof of its claims. Those actions have pushed the strip to the
“brink of famine”, the suit claims.

Besides genocide, South Africa claims that Israel is committing other violations
of international law in the Gaza Strip, including launching an assault on
Palestinian culture by attacking sites of “religion, education, art, science,
historic monuments, hospitals and places where the sick and wounded are
collected”.


HAVE SIMILAR CASES BEEN FILED BEFORE?

Yes. Under the Genocide Convention, nation-states may file charges of genocide
against other countries whether or not they are directly involved in the
conflict. In 2019, The Gambia, on behalf of the Organisation of Islamic
Cooperation, petitioned the court against Myanmar over its atrocities against
the Rohingya people.

Israel and South Africa are both parties to the ICJ, meaning its rulings are
binding on both of them. But while the ICJ has more weight than the UN Security
Council where Israel is tightly shielded by the US, the court lacks enforcement
power. In fact, the ICJ’s orders have been ignored in some cases with no serious
consequences.

In March 2022, for example, one month after Russia invaded Ukraine, Kyiv filed a
case against Russia at the Court. In that case, Ukraine also asked the ICJ to
lay down emergency measures to stop Russia’s aggression.

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The court did indeed order Moscow to halt military operations shortly after,
stating that it was “profoundly concerned” by the assault on Ukraine.
Nevertheless, more than a year later, the war in Europe continues.


WHAT HAPPENS NEXT?

South African authorities confirmed Tuesday that the ICJ has fixed a hearing for
January 11-12. “Our lawyers are currently preparing for this,” Clayson Monyela,
spokesperson for South Africa’s Department of International Relations and
Cooperation, posted on X, formerly Twitter.





But proceedings can take time – years, even. The court is still deliberating on
Gambia’s case against Myanmar from 2019, for instance. There have been
evidential hearings in that case – the latest one in October 2023, when the
court asked The Gambia to respond to Myanmar’s counterarguments.

South Africa proactively requested an expedited process in its December
submission. Its call for an emergency order from the ICJ could produce fairly
swift results – in a matter of weeks – as happened in the Ukraine case.

Responding to the suit, Israel’s Ministry of Foreign Affairs has vehemently
denied allegations of genocide and has described Pretoria’s case as “blood
libel” and a “despicable and contemptuous exploitation” of the court. A
statement from the ministry also accused South Africa of being “criminally
complicit” in Hamas attacks.

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On Tuesday, spokesperson Eylon Levy confirmed that Tel Aviv will defend itself
at The Hague hearings. “We assure South Africa’s leaders, history will judge
you, and it will judge you without mercy,” Levy told reporters.

Sarang Shidore, director of the Washington-based Quincy Institute, a think tank,
said this stance could mean that Tel Aviv is taking the complaint as a serious
challenge to its policies in Gaza.

While any rulings by the ICJ may have little bearing on the war itself, a ruling
in favour of South Africa and the Palestinians would pile significant pressure
on Israel’s number one backer and de facto weapons depot – the US government.

“The Biden Administration is increasingly vulnerable to domestic opponents of
the war and international charges of double standards,” Shidore said, alluding
to the stark difference between the US’s stance on the Russia-Ukraine war and
its position on the Gaza war. A ruling against Israel though, could have
“implications for the standing of the United States”, he said.

“My sense is that the Biden Administration and some key European allies will
strongly back Israel at the ICJ,” Shidore added. “But we shall see how this
support is precisely worded.”

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Source: Al Jazeera

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