South Africa has brought Israel to the International Court of Justice (ICJ) in The Hague, accusing Israel of genocide against Palestinians during the Gaza conflict. The case has significant cultural, diplomatic, historical, and political implications. Israel has rejected South Africa’s claim and plans to contest the case. South Africa has requested provisional measures, a form of international injunction, and preliminary hearings will take place in The Hague on January 11 and 12.
A decision on South Africa’s provisional measures request is expected by the end of January, potentially impacting Israel’s military campaign in Gaza. The Genocide Convention, adopted after the Holocaust, is in question, aiming to define genocide, prevent future genocides, and hold nation states accountable. The Convention, which includes Israel and South Africa, is considered one of the pillars of the United Nations human rights system.
South Africa has initiated a case against Israel under the Genocide Convention, arguing that it has an obligation to enforce legal rights owed to all people that genocide is not allowed. The case, which began on December 29, 2023, provides a historical context of Israel’s conduct in Palestine, including the Hamas terrorist attacks and details of Israel’s subsequent Gaza military operations. South Africa details Israel’s actions and conduct, particularly their statements regarding how Israel intended to respond to the Hamas attacks and the extent and scale of Israel’s military operations in Gaza.
South Africa’s court case takes two forms: a claim that Israel has committed genocide against Palestinians in Gaza and an urgent request for provisional measures. The court has requested that Israel’s political and military leaders cease any activities that amount to an ongoing campaign of genocide against the Palestinian people. South Africa will need to prove that the case is admissible, that the World Court has jurisdiction to hear this claim, and that the application is urgent, requiring orders to prevent irreparable harm.
At this stage, South Africa does not need to conclusively prove genocide has taken place, but it must demonstrate that Palestinians face irreparable harm and that Israel’s conduct could be considered acts of genocide. This comes at the Merits phase, where South Africa does not need to conclusively prove genocide has taken place.
Israel is expected to resist any claims of genocide and argue that its leaders are acting in accordance with international law in response to Hamas’ threat. The International Court of Justice, a United Nations organ, is not being asked to settle the Israel-Hamas conflict, but will be aware of its role in the face of claims of ongoing genocide.
It has quickly moved to hear South Africa’s case, which could lead to two potential outcomes: the court may decline to order provisional measures, which would require a radical modification of Israel’s military operations in Gaza, or uphold the request and order provisional measures, which would require a radical modification of Israel’s military operations in Gaza. However, the court cannot enforce its decisions, as Russia ignored an order following its invasion of Ukraine in 2022. Regardless of the court’s decisions, Israel will retain its right of self-defense against Hamas.
