Top UN court opens hearings on South Africa’s allegation that Israel is committing genocide in Gaza

Judges at the International Court of Justice have opened two days of legal arguments in a case filed by South Africa accusing Israel of genocide in its Gaza war

Demonstrators hold pro-Palestinian banners as they protest near the International Court of Justice (ICJ) on the day judges hear a request for emergency measures to order Israel to stop its military actions in Gaza, in The Hague, Netherlands. | Photo Credit: REUTERS/Thilo Schmuelgen

Judges at the International Court of Justice on January 11 opened two days of legal arguments in a case filed by South Africa accusing Israel of genocide in its Gaza war. Israel rejects the allegation.

Lawyers for South Africa asked judges at the January 11 hearing to impose binding preliminary orders on Israel, including an immediate halt to Israel’s military campaign in Gaza. Ahead of the proceedings, hundreds of pro-Israeli protesters marched close to the courthouse with banners saying “Bring them home”, referring to the hostages still held by Hamas. Among the crowds, people were holding Israeli and Dutch flags. Outside the court, others were protesting and waving the Palestinian flag in support of South Africa’s move.

The dispute strikes at the heart of Israel’s national identity as a Jewish state created in the aftermath of the Holocaust. It also involves South Africa’s identity: 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 restricted most Blacks to “homelands” before ending in 1994.

Although it normally considers UN and international tribunals unfair and biased, Israel has sent a strong legal team to defend its military operation launched in the aftermath of the October 7, 2023, attacks by Hamas. South Africa immediately sought to broaden the case beyond the narrow confines of the ongoing Israel-Hamas war. “The violence and the destruction in Palestine and Israel did not begin on October 7. The Palestinians have experienced systematic oppression and violence for the last 76 years,” said South African Justice Minister Ronald Lamola.

Vusimuzi Madonsela, the co-leader of South Africa’s delegation said that “at the outset, South Africa acknowledges that the genocidal acts and omissions by the state of Israel inevitably form part of a continuum of illegal acts perpetrated against the Palestinian people since 1948,” when Israel declared its independence.

Israeli Prime Minister Benjamin Netanyahu issued a video statement on the night of January 10 defending his country’s actions. “Israel has no intention of permanently occupying Gaza or displacing its civilian population,” he said. “Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law.” He said the Israeli military is “doing its utmost to minimise civilian casualties, while Hamas is doing its utmost to maximise them by using Palestinian civilians as human shields”.

In the opening session in The Hague, South Africa called for the court to issue an interim order for an immediate halt to Israel’s military actions. A decision will likely take weeks.

Israel’s offensive has killed more than 23,200 Palestinians in Gaza, according to the Health Ministry in Hamas-run Gaza. About two-thirds of the dead are women and children, health officials say. The death toll does not distinguish between combatants and civilians. “Mothers, fathers, children, siblings, grandparents, aunts, and cousins are often all killed together. This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No one is spared. Not even newborn babies,” said South African lawyer Adila Hassim. “Nothing will stop the suffering except an order from this court. Without an indication of provisional measures, the atrocities will continue with the Israeli Defense Forces indicating that it intends to pursue this course of action for at least a year,” she said.

Finding food, water, medicine, and working bathrooms has become a daily struggle for Palestinians living in Gaza. On January 5, the UN humanitarian chief called Gaza “uninhabitable” and said, “People are facing the highest levels of food insecurity ever recorded (and) famine is around the corner.” Israel itself has always focussed attention on the October 7 attacks themselves, when Hamas fighters stormed through several communities in Israel and killed some 1,200 people, mainly civilians. They abducted around 250 others, nearly half of whom have been released.

US Secretary of State Antony Blinken dismissed the case as “meritless ” during a visit to Tel Aviv on January 9. “It is particularly galling, given that those who are attacking Israel—Hamas, Hezbollah, the Houthis, as well as their supporter Iran—continue to call for the annihilation of Israel and the mass murder of Jews,” he said.

The World Court, which rules on disputes between nations, has never judged a country to be responsible for genocide. The closest it came was in 2007 when it ruled that Serbia “violated the obligation to prevent genocide” in the July 1995 massacre by Bosnian Serb forces of more than 8,000 Muslim men and boys in the Bosnian enclave of Srebrenica.

The International Criminal Court, based a few miles (kilometres) away in The Hague, prosecutes individuals for war crimes, crimes against humanity, and genocide. South Africa “will have a hard time getting over the threshold” of proving genocide, McIntyre said. “It’s not simply a matter of killing enormous numbers of people,” she said in an email to The Associated Press. “There must be an intent to destroy a group of people (classified by race or religion for example) in whole or in part, in a particular place.”

The case revolves around the genocide convention that was drawn up in 1948 in the aftermath of the Second World War and the murder of six million Jews in the Holocaust. Both Israel and South Africa are signatories. In its written filing, South Africa says it wants the court “to establish Israel’s responsibility for violations of the Genocide Convention; to hold it fully accountable under international law for those violations” and to “ensure the urgent and fullest possible protection for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of genocide”. A team of lawyers representing South Africa will present three hours of arguments in the court’s wood-panelled Great Hall of Justice. Israel’s legal team will have three hours on the morning of January 12 to respond.

Human Rights Watch said the hearings will provide scrutiny of Israel’s actions. “South Africa’s genocide case unlocks a legal process at the world’s highest court to credibly examine Israel’s conduct in Gaza in the hopes of curtailing further suffering,” said Balkees Jarrah, the group’s associate international justice director.

Israel is back on the International Court of Justice’s docket in February when hearings open into a UN request for a non-binding advisory opinion on the legality of Israeli policies in the West Bank and East Jerusalem.