Win or lose, South Africa’s case against Israel matters

On 12 January, the International Court of Justice (ICJ) – the highest UN legal body – will hear Israel’s defence in court against South Africa’s case accusing the former of genocide. The lawsuit claims Israel has violated the 1948 Genocide Convention.

An “unprecedented case,” according to experts, the suit has renewed interest in international courts again. 

The lawsuit by South Africa, which has its own rich history of apartheid, is an attempt to hold Israel accountable for its actions in Gaza. Although the ICJ case can take years to see a court ruling, it did not deter the fanfare. 

This has drummed up a lot of attention in the international community for several reasons. 

The 1948 Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” The intent to commit genocide by Israel is well-evidenced, according to experts. 

More importantly, perhaps, a win for South Africa in this case can have rippling implications. For instance, even if Israel ignores the ICJ ruling, it will establish the US’ complicity in this genocide, according to experts.  

This case, even if not won, will bring Israel to a court to hold it accountable for its actions – a task that has not been possible in any other international framework. 

A case to fight impunity 

The past three months saw Palestinian journalists, medical staff and civilians on the ground documenting the death and destruction caused by Israel making the world privy to perhaps the first televised “genocide” in real time. 

Israel engaged in indiscriminate killings of civilians and bombed not only residential blocks, but also hospitals, mosques, churches, schools and even refugee camps. 

Another unique breach of international humanitarian law is the onslaught against Palestinian journalists and the targeted killings of their families. The number of killed Palestinian journalists stands at over 70, according to Reuters, in three months – an exceptional figure in the history of wars and conflicts. 

While many in the international community continue to debate over the use of the term “genocide,” Israel’s targeting of civilian facilities and journalists, indiscriminate killings of civilians and siege on Gaza – resulting in “a famine around the corner” according to UN relief chief – all point to the conventions of committing genocide. 

Israel continues to reject any assertion that it is targeting civilians or engaged in anything other than a campaign for its security. Currently, Israel has killed more than 23,000 Palestinians with nearly 10,000 children since 7 October 2023. Meanwhile, thousands not included in the figures are believed to be still trapped under the rubble. 

So why and how is South Africa’s filing against Israel at the ICJ making a mark? If one remembers, on 17 November 2023, five countries (South Africa, Bangladesh, Bolivia, Comoros and Djibouti) called for an International Criminal Court (ICC) investigation into the situation in Palestine, according to ICC Chief Prosecutor Karim A A Khan KC.  

Additionally, a 2021 ICC investigation was launched to mainly look into war crimes committed during the 2014 Gaza war. 

However, Israel does not recognise the ICC. This means it does not have jurisdiction over Israel. But, Israel and South Africa are both signatories of the 1948 Genocide Convention, giving ICJ legal jurisdiction to adjudicate cases between member states. All signatories are obliged to not commit genocide and also prevent and punish perpetrators. 

Secondly, this is the first time that Israel will be tried under this convention. Additionally, if South Africa is successful, this will be the court’s first ruling of this nature. In the past, the ICJ ruled in 2007 against Serbia that it failed to prevent a genocide against Bosnians but none that said a state is guilty of committing genocide, according to experts.  

Experts also say that South Africa has a strong case. 

“It [the filing] is a substantive, tightly argued 80-page claim, replete with detailed references to senior UN officials and reports, which only rarely strays from its chief necessary purpose of seeking to prove Israel’s genocidal intent. The lawyers South Africa is sending to The Hague are its best,” wrote Patrik Wintour, The Guardian’s diplomatic editor. 

The nine lawyers will present South Africa’s case at The Hague on 11 January while Israel will be represented by a British lawyer Professor Malcolm Shaw KC, according to The Times of Israel. 

Human Rights Watch wrote South Africa further contends in its lawsuit that the “acts of genocide” should be placed in “the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.” 

Criticism of ‘genocide’ termed ‘blood libel’ 

A common notion that labels criticism of Israel as anti-semitism found a new life following the 7 October attack by Palestinian militant group Hamas on southern Israel. Targeting civilians, which is deemed a war crime, the attack killed and kidnapped scores of Israelis. What followed was an overwhelming “retaliatory” response by the Israeli government to “destroy” Hamas in Gaza. 

And in the following weeks, Israel lived up to its words. 

South Africa’s ICJ filing – which by far is the sole action to take Israel to court – has been labelled as “blood libel” by Israel. The US and the UK have rejected or refused to support South Africa while the EU mostly remains silent. 

While many – mostly Muslim-majority countries, including Turkey, Jordan, OIC, Malaysia and Bolivia (the first Latin American country to back the ICJ filing) – have shown support for South Africa’s case, time will tell what follows the “unprecedented” case against Israel in an international court.