Everything you need to know about South Africa’s ‘genocide’ complaint against Israel

At the end of December, South Africa lodged a complaint before the International Court of Justice (ICJ), alleging that Israel’s actions in Gaza, particularly since the start of the war on Oct.7, amount to genocide. The first public hearings of the case will be held at the Peace Palace in The Hague on Jan. 11 and 12.

About the complaint filed with the ICJ

After having expressed its concerns repeatedly and publicly, and through diplomatic channels, South Africa filed before the ICJ on Dec. 29 “an application instituting proceedings against Israel concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide [the 'Genocide Convention] in relation to Palestinians in the Gaza Strip,” according to an ICJ press release.

In the 84-page document, South Africa condemned Israeli acts as “genocidal in character as they are committed with the requisite specific intent.” The country accused Israel of being “in violation of its obligations under the Genocide Convention.”

The application stated that since Oct. 7 particularly, when Hamas launched a surprise attack on Israel that according to Israeli authorities killed almost 1,200 people and triggered the start of the war in Gaza, Israel “has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide.”

”It has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza,” it continued.

A fervent supporter of the Palestinian cause, the plaintiff country, where apartheid reigned until the 1990s, has given priority to the application of “provisional measures” to “protect against further, severe and irreparable harm to the rights of the Palestinian people,” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”

These measures would remain in place while the case is ongoing. In particular, South Africa called upon Israel “immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention .”

Intensive bombardment of the landlocked Gaza strip has already claimed more than 22,400 lives and injured nearly 60,000 in less than three months, according to Palestinian authorities.

What is the complaint based on?

For the complaint to succeed, “it will be necessary to show that Israel has failed to fulfill its obligations under the Convention by providing proof of the material elements constituting genocide, the intentional element of the desire to destroy the group in question, and the link between the violation of the obligation and the Israeli State apparatus,” said Marjorie Beulay, a lecturer at the University of Picardie Jules Verne specializing in international public law.

The judges of the International Criminal Court in session in 2018 in The Hague. (Credit: AFP archive photo)

Based on media investigations and facts relayed by various authorities, South Africa’s case denounces the deaths in Gaza. According to the document submitted to the ICJ, nearly one in every 100 inhabitants was killed in the Israeli bombing campaign, in which unguided projectiles were allegedly used, decimating entire families.

The document also condemned the serious attacks on the physical and mental integrity of Gazans, mentioning, in particular, the trauma inflicted on children. They cited the collapse of the health system and the lack of access to water, food, hygiene and shelter, among other things.

In addition to underscoring the destruction of life and heritage in Gaza, South Africa underlined the mass expulsions and displacement of Gazans, while evacuation orders have been issued by the Israeli army without the zones being made safe.

In addition to the acts and allegations listed, Pretoria emphasized the genocidal intent conveyed in the statements of the Israeli authorities and the state of public opinion.

“The situation in Israel should enable the Court to analyze the action of the Israeli State in a cross-cutting manner, i.e. with regard to both the prohibition on committing genocide or being complicit in it and the obligation to prevent or punish genocidal acts,” warned Beulay.

“In terms of the facts themselves, the concept of genocide primarily involves demonstrating an intention to destroy an ethnic, racial, national or religious group. It is not necessary for the destruction to constitute a proven material fact; intent may suffice,” said Beulay.

Why the ICJ and not the International Criminal Court?

The ICJ was established as the UN’s civil court for disputes between states, while the ICC handles criminal cases against individuals. Operational since 1946, the ICJ deals mainly with inter-state disputes over maritime or land borders, as well as the interpretation of international treaties.

But it is also based on the Convention on the Prevention and Punishment of the Crime of Genocide, drawn up in 1948 in the wake of WWII and the Holocaust. Genocide is defined as acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Israel is a signatory to the Convention, which means that it is committed to preventing genocide, and as a UN member state, it can appear before the ICJ.

While the Court’s decisions are final and legally binding, they are not always enforced, as the ICJ has no means of enforcing them. This was the case in 2022 when the Court ordered Russia to suspend its operations in Ukraine in another case brought before it on grounds of genocide.

While some in Israel are already criticizing the impartiality of the Court, which is made up of 15 judges from different countries — each party to the case being able to nominate a judge to represent it — it is the American judge Joan Donoghue who presides over the Court, and its vice-president, Kirill Gevorgian, is Russian.

Washington is Tel Aviv’s closest ally, supplying it with additional arms and munitions since the start of the war.

“The Court has already had to deal with legal disputes with a strong political connotation on numerous occasions, but it confines itself to a legal analysis of the facts submitted to it,” said Beulay.

What were the reactions to this accusation?

Israel reacted swiftly, dismissing South Africa’s accusations. In a statement, Israel’s Ministry of Foreign Affairs rejected “with disgust the blood label” spread in the legal case, which was denounced as having no legal basis and constitutes “despicable and contemptuous exploitation” of the ICJ.

Prime Minister Benjamin Netanyahu retorted that the Israeli army demonstrated “unparalleled justice and morality” in the war.

Washington denied the allegations made to the ICJ, saying it has “not at this point seen acts that constitute genocide,” according to State Department spokesman Matthew Miller.

Attorney Alan Dershowitz. (Credit: AFP archive photo)

Other supporters of Israel had different opinions. Nicolas de Rivière, France’s representative to the UN, said that violations of international law had occurred since Oct. 7, and France, being a strong supporter of the ICJ, would back the case’s outcome.

Turkey, where some Hamas leaders reside, officially backed South Africa’s complaint. Turkish President Recep Tayyip Erdogan, close to the Muslim Brotherhood, increased his criticism of Netanyahu’s government after the Gaza war.

Who will represent Israel?

Israel, which usually avoids complying with international justice directives, has chosen to defend itself in court, marking its first case at the ICJ that goes beyond seeking an advisory opinion.

Eylon Levy, a member of Netanyahu’s government, confirmed that Israel would send a legal team to The Hague “to refute South Africa’s baseless ‘blood accusation,’ addressing anti-Semitic claims of Jews being involved in ritual murders of non-Jews.”

This defense is crucial for Israel, which played a role in creating the Genocide Convention. Additionally, an unnamed Israeli official, as reported by the Associated Press, expressed confidence in the case.

As reported by Israeli daily Haaretz, Israel’s decision to appoint a representative serves two main purposes. First, to prevent the ICJ from issuing an order for Israel to immediately cease fighting in Gaza. Second, to avoid accusations of genocide, as such a decision could carry significant diplomatic and economic repercussions.

Israeli officials, quoted on Jan. 2 by Barak Ravid via X, suggest that Netanyahu prefers to have lawyer Alan M. Dershowitz represent Israel at the ICJ during the upcoming public hearings.

Dershowitz told Ravid, he could not comment about the matter at this time, according to the post on X.

However, Dershowitz, who is a Harvard professor, told the university newspaper, The Harvard Crimson, that he had been defending Israel for more than half a century and that he would “continue to defend Israel when it is right” to do so.

Dershowitz also noted South African’s accusations of genocide were “totally false,” as “Israel is not at war with civilians, it is at war with Hamas, which is at war with its own civilians.”

Dershowitz is known for having been part of OJ Simpson’s legal team in the 1990s, and then Donald Trump’s in 2020 against his impeachment.

Dershowitz is also known for his controversial association with the billionaire Jeffrey Epstein. Dershowitz assisted Epstein in reaching a settlement with legal authorities when facing accusations of pedophilia and human trafficking. One of Epstein’s accusers, who later tragically died in custody by suicide, alleged that she had engaged in sexual relations with Dershowitz when she was a minor. Dershowitz denies these allegations.

What are the possible consequences of a decision in favor of South Africa?

The initial step involves addressing any preliminary objections, which allow the raising of concerns about a lack of jurisdiction or inadmissibility to potentially dismiss the legal proceedings.

In the South Africa vs. Israel case before the ICJ, the Court’s jurisdiction appears secure. This is because, even if the claimant lacks a personal interest in pursuing the case, the prohibition of genocide is non-derogable and applies universally. Moreover, both countries involved in the case are signatories to the Convention on the Settlement of Disputes between Member States of the United Nations.

The next step involves reviewing the application to halt Israeli attacks. According to Marjorie Beulay, considering the current circumstances and the requirement to demonstrate the need to prevent imminent irreparable harm, the Court should adopt provisional measures.

However, a challenge arises concerning the effectiveness of ICJ decisions since the Court lacks direct means of enforcement. Recent cases, including those related to Nagorno-Karabakh and Myanmar, indicate that the ICJ has limited mechanisms to compel states to comply with its decisions, as cautioned by the lawyer.

Non-compliance by Israel with the provisional measures, amounting to a violation of international law, may lead to its accountability. If proven, this could trigger requests for suitable reparations. In response to the Court’s decision, other states might be compelled to take independent measures against Israel to uphold their obligations to international justice, as reported by Haaretz.

In a few weeks, the ICJ is expected to issue provisional measures aimed at preventing genocide in Gaza, according to Johann Soufi, an international lawyer and director of strategy at the Institute for International Legal and Advocacy Training (IILAT), via X. He added that continuing military support for Israel at that point would be viewed as an unprecedented legal, moral, and political mistake in Western history.

With the increasing calls for a boycott of Israeli products or brands supporting the Jewish state since Oct. 7, concerns are growing that Israel may face greater isolation on the international stage or even be subject to economic and international sanctions.

“This could have significant political consequences, especially in terms of image,” said Marjorie Beulay. She acknowledges the difficulty of predicting the impact on Israel’s partnerships. From a legal perspective, a conviction for violating the Convention against Genocide would serve as a potent argument against Israeli policy.

Nevertheless, the legal proceedings for this case might extend over several years. In the end, the ICJ’s decision could impact the ongoing investigations at the ICC, which, since 2021, has been looking into allegations of war crimes and crimes against humanity related to the Israeli-Palestinian conflict.

Haaretz suggests that the International Criminal Court could potentially take action against specific Israeli leaders implicated in the acts for which Israel is accused.

This article was originally punished in French in L'Orient-Le Jour.