Key Points
- South Africa has accused Israel of committing genocide, launching a case at the International Court of Justice.
- South Africa made its arguments on Thursday, with Israel still set to present its case.
- The court ruling may take years but has the power to implement provisional measures.
South Africa has alleged to the International Court of Justice (ICJ), also known as the World Court, that .
“Our opposition to the ongoing slaughter of the people of Gaza has driven us as a country to approach the ICJ,” said South African President Cyril Ramaphosa.
The ICJ heard South Africa’s arguments on Thursday. Israel has denied the accusations and will give its response on Friday from 8pm AEDT. Here’s what to know about the trial so far.
What is the ICJ?
The International Court of Justice is the highest UN court and is based in The Hague, Netherlands. It was established in 1945 to settle disputes regarding breaches of international law. The court also provides advisory opinions on legal questions that have been referred to it by other authorised UN bodies.
“It was considered that it would be useful to have an organ that could resolve disputes between states in a fair and equal manner,” said Juliette McIntyre, an international law expert at the University of South Australia.
The ICJ is comprised of 15 judges, appointed for nine-year terms through elections at the UN General Assembly (UNGA) and the Security Council (UNSC), with rulings decided by the majority.
The ICJ is not to be confused with the International Criminal Court – the ICC – which is also based in The Hague. While ICJ cases involve member states, the ICC is a criminal court that brings cases against individuals for war crimes, crimes against humanity and genocide.
What is South Africa accusing Israel of?
South Africa’s application to the ICJ was 84 pages long, and much more detailed than those typically submitted to the court.
South Africa and Israel are both parties to the 1948 Genocide Convention, which obliges them to take measures to prevent and punish the crime of genocide.
South Africa claims that Israel has violated the 1948 convention through its bombardment and siege of Gaza. The treaty defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”.
Emily Crawford, a professor of international law at the University of Sydney, told SBS News: “There needs to be a deliberate policy by the government to commit the act of genocide.
“It’s not just enough that genocidal acts have been met, there needs to be the mental element behind the act.”
Tembeka Ngcukaitobi, an advocate of the High Court of South Africa, told the ICJ on Thursday that “the evidence of genocidal intent is not only chilling, it is also overwhelming and incontrovertible”.
In its court filings, South Africa cited Israel’s failure to provide food, water, medicine and other essential humanitarian assistance to the Palestinian enclave.
It also pointed to its sustained bombardment, which has killed more than 23,000 people, according to Gaza health authorities.
“South Africa contends that Israel has transgressed Article Two of the (Genocide) convention, committing acts that fall within the definition of genocide. The actions show a systematic pattern of conduct from which genocide can be inferred,” Adila Hassim, another advocate of the High Court of South Africa, said.
Why does South Africa support the Palestinian cause?
Post-apartheid South Africa has long defended the Palestinian cause, a relationship forged when the African National Congress’ struggle against white minority rule was cheered on by Yasser Arafat’s Palestine Liberation Organisation.
Former South African president Nelson Mandela and other South African leaders have compared the restrictions Palestinians in Gaza and the West Bank face to the restrictions black South Africans experienced during apartheid.
What has Israel said?
Israel has rejected the accusations of genocide as false and baseless and claimed South Africa was speaking on behalf of Hamas – which South Africa has denied.
Hamas is a Palestinian political and military group, which has governed the Gaza Strip since the most recent elections in 2006.
Hamas’ stated aim is to establish a Palestinian state and stop the Israeli occupation of Gaza and the West Bank. A UN Commission of Inquiry in 2022 found Israel’s occupation of the Palestinian Territories to be unlawful under international law.
Israel’s retaliatory offensive in Gaza was triggered when, on 7 October, Hamas militants launched a coordinated land, sea and air attack on Israel, killing 1,200 people and taking 240 hostages.
Israeli Prime Minister Benjamin Netanyahu has described the ICJ case against it as “upside-down”.
“Israel is accused of genocide while it is fighting against genocide,” he said.
Israel’s prime minister has described accusations of genocide against it as “upside-down”. Source: AAP
“Israel is fighting murderous terrorists who carried out crimes against humanity: They slaughtered, they raped, they burned, they dismembered, they beheaded – children, women, elderly, young men and women,” he said.
Israeli President Isaac Herzog has said: “We will be there at the International Court of Justice and will present proudly our case of using self-defence under our most inherent right under international humanitarian law.”
What can the ICJ do?
The ICJ will not rule on the genocide allegations immediately – such proceedings could take years. However, provisional measures can be implemented just weeks after a hearing.
South Africa has asked the ICJ to place provisional measures to order Israel to protect Palestinians in the Gaza Strip from further harm, and for Israel to suspend its military operations in the Gaza Strip.
“What provisional measures are essentially a kind of an emergency ruling by the court that there is a substantial risk of a breach of international law taking place so,” Crawford explains.
“When the ICJ does make a final ruling, it can’t be appealed. While judgements are legally binding – they are often difficult to enforce.”
– additional reporting by Rayane Tamer, Anna Bailey and Finn McHugh
