Israel faces genocide charges at the International Court of Justice

Judges at the International Court of Justice (ICJ)—a principle body and subsidiary of the United Nations (U.N.)—have opened arguments in a case filed by South Africa which accuses Israel of committing genocide against Palestine for amid its military campaign in Gaza. Israel rejects the allegation.

Lawyers representing South Africa implored judges at Thursday's hearings to enforce binding ‘provisional measures’ to protect Palestinian civilians, including an immediate suspension of Israel's military operations in Gaza.

In a statement before the ICJ, Adila Hassim, advocate of the High Court of South Africa said: “South Africa contends that Israel has transgressed Article Two of the (Genocide) convention, committing acts that fall within the definition of genocide.”

“Genocides are never declared in advance, but this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies as a plausible claim of genocidal acts.”

The filing accuses Israel of violating the 1948 Genocide convention, established in the wake of the mass murder of Jewish people in the Holocaust, which mandates all countries to ensure such crimes are never repeated.

As such, all states have an international legal obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 and, as determined by the ICJ previously, under customary law. This means that the obligation to prevent is binding on all states, including those which are not party to the Convention. In November, a group of U.N. experts warned of a “genocide in the making” in Palestine and particularly in Gaza.

South Africa cites Israel’s sustained military occupation of staggering scale and destruction which, in three months, has seen more than 23,000 Palestinian fatalities in the densely-populated Gaza strip, according to Gaza health authorities. The filing further argues that these acts of genocide include killing Palestinians, causing serious mental and bodily harm, and deliberately inflicting conditions meant to “bring about their physical destruction as a group.”

Lawyers also maintain that statements by Israeli officials express genocidal intent.

​​“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said South African lawyer Tembeka Ngcukaitobi.

“What state would admit to a genocidal intent? Yet, the distinctive feature of this case has not been the silence as such, but the reiteration and repetition of genocidal speech throughout every sphere of the state in Israel.”

A principle indicator of genocidal intent is the use of language that dehumanises the target population. In October, Israeli President Isaac Herzog blamed all Palestinians in Gaza for the Hamas attack on 7th October, stating, “It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’etat.”

With the approval of the Israeli cabinet—overseen by Prime Minister Benjamin Netanyahu—Defense Minister Yoav Gallant called Palestinians "human animals" who will be treated “accordingly,” and ordered “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.”

Israel’s government quickly rejected the accusation of genocide. In a statement from the Foreign Ministry, spokesperson Lior Haiat said that South Africa’s “claim lacks both a factual and a legal basis, and constitutes a despicable and contemptuous exploitation of the court.”

Eylon Levy, a representative for the Israeli prime minister’s office, accused South Africa of granting “political and legal cover” to the 7 October attack by Hamas that triggered Israel’s offensive against Palestine. He further confirmed that an Israeli legal team will appear before the ICJ to “dispel South Africa’s absurd blood libel.”

South Africa is no stranger to the onslaught of genocide and humanitarian disaster. Its governing party, the African National Congress, has long compared Israel's policies in Gaza and the West Bank to its own history under the apartheid regime of white minority rule, which forced the relocation of Black Africans to reservations called ‘homelands’ before ending in 1994.

The preliminary hearings this week will consider whether the court should order Israel to stop fighting while it investigates the full merits of the case. A decision on South Africa’s appeal for ‘provisional measures’ against Israel will likely take weeks. The case is likely to last years.

Israel is scheduled to return to the ICJ docket next month, when hearings open into a U.N. appeal for a non-binding advisory opinion on the legality of Israeli policies in the West Bank and east Jerusalem.