South Africa-Israel Genocide Case: Charges, Evidence & Possible Outcomes at ICJ

South Africa has called on the ICJ to investigate whether Israel is committing genocide against Palestinians.

The hearing of South Africa’s International Court of Justice (ICJ) petition against Israel, calling on the court to investigate whether Israel was committing genocide against Palestinians, began at The Hague in Netherlands on Thursday, 11 January.

“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 a plausible claim of genocidal acts,” South African lawyer Adila Hassim told the ICJ on Thursday.

An extensive 84-page document, South Africa's petition is the most significant effort to categorise Israel’s actions as genocide and was filed on 29 December 2023, at a time when the death toll in Gaza had reached a reported 23,000 people, many of whom were women and children.

South Africa further told the United Nations body that Israel’s conduct was in violation of the Genocide Convention, adding that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide.”

“Israel has killed an unparalleled and unprecedented number of civilians [...] with the full knowledge of how many civilian lives each bomb will take. More than 1,800 Palestinian families in Gaza have lost multiple family members and hundreds of multi-generational families have been wiped out with no remaining survivors … This killing is nothing short of destruction of Palestinian life.”

South African lawyer Adila Hassim at the ICJ hearing

In response, Israel has dismissed South Africa's petition as “blood libel". Israeli Prime Minister Benjamin Netanyahu said, "No, South Africa, it is not we who have come to perpetrate genocide, it is Hamas.”

The Allegations

Before we get into the allegations against Israel, why would South Africa, out of all the global stakeholders, file such a petition in the UN’s top court? Pretoria's recent action adds to a series of steps taken since the 2023 escalation of the conflict in Gaza.

These steps include consistent condemnation of Israel's assaults on Gaza and the West Bank, recalling its ambassador from Israel, referring the plight of Palestinians to the International Criminal Court (ICC), and urging an unprecedented meeting among BRICS nations to discuss the ongoing “genocide”.

In its petition, South Africa accused Israel of committing genocide in Gaza, alleging a breach of the 1948 Genocide Convention, which defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group."

The allegations of genocidal actions laid out in the petition include the killing of a significant number of Palestinians in Gaza, a large number of whom are children, alongside the destruction of their homes, forced mass displacement, and the imposition of a blockade on essential resources like food, water, and medical aid in the Strip.

In addition to the loss of life, South Africa pointed out that Israel has caused injuries to over 55,000 Palestinians, arguing that these actions align with the Genocide Convention's definition of "causing bodily harm" to a specific group of people.

“Acts and omissions by Israel . . . are genocidal in character, as they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”

South Africa's petition

South Africa emphasised that the breadth of Israel's military operations, characterised by indiscriminate bombings and “summary executions” of civilians, combined with the blockade of essential humanitarian resources, has pushed Gaza to the "brink of famine."

Beyond the accusation of genocide, South Africa alleged that Israel is violating other aspects of international law in Gaza, including the Geneva Convention and customary international law in relation to proportionality.

By allegedly targeting religious, educational, artistic, scientific sites, historical monuments, hospitals, and places where the sick and wounded seek refuge, South Africa said that Israel’s actions were an assault on Palestinian culture.

It alleged that Israel's bombardment has left 70 percent of all homes in Gaza destroyed or damaged, forcing 85 percent of the 2.3 million population into mass displacement.

South Africa has urgently called upon the ICJ to step in and prevent Israel from continuing to commit the alleged crimes in Gaza and West Bank, by issuing an order for Tel Aviv to cease its military action.

The Evidence

The legal case includes specific instances where Israeli officials' statements are cited as evidence of alleged genocidal intent. One such example that has been offered occurred on 12 October, when Israeli President Isaac Herzog declared that there was no differentiation between armed fighters and civilians in Gaza.

"It's an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved. It’s absolutely not true. … and we will fight until we break their backbone."

Israeli President Isaac Herzog was quoted as saying.

The suit also includes statements made by top Israeli officials, including Prime Minister Benjamin Netanyahu, as evidence of "genocidal intent."

For instance, it refers to Netanyahu's comparison of Palestinians to the biblical Amalek, a nation instructed by God to be destroyed entirely.

Moreover, statements by Netanyahu indicating an intent to intensify the conflict despite extensive destruction and casualties have been highlighted by South Africa.

Several other statements allegedly portraying the people of Gaza negatively, while portraying Israel as a force of "light" have also been cited in the petition.

Israeli Defense Minister Yoav Gallant on 9 October 2023, announced a complete siege on Gaza, cutting off electricity and water to the enclave. He further referred to the residents of Gaza as "human animals."

On 10 November 2023, Israeli National Security Minister Itamar Ben Gvir, in a televised address, asserted that when Israel vows to destroy Hamas, it encompasses "those who celebrate, those who support, and those who hand out candy – they're all terrorists, and they should also be destroyed."

The following day, on 11 November, Israel's agriculture minister remarked, "[W]e are now actually rolling out the Gaza Nakba," referring to the killing and forced displacement of hundreds of thousands of Palestinians during the creation of Israel in 1948.

These statements, according to South Africa, are evidence that Israeli officials have expressed genocidal intent during the conflict in Gaza.

How Effective Is an ICJ Hearing?

While the ICJ has the authority to settle disputes between countries, it has no power to enforce its decisions – despite them being legally binding.

Moreover, hearings conducted by the ICJ are not fast-paced, to say the least. Proceedings can take years in some cases (Gambia’s petition against Myanmar has been deliberated upon since 2019 and the verdict is still pending).

However, given South Africa’s request to expedite proceedings, its call for the ICJ to issue an emergency order may speed up the case, similar to Ukraine’s case against Russia.

In Ukraine’s case, the ICJ sided with Kyiv on its application accusing Russia of genocide amid Moscow’s invasion and ordered Russia to halt its military operations in Ukraine. But, nothing actually changed.

Additionally, the case for genocide is quite difficult to prove, predominantly due to the definition in the UN's Genocide Convention, which requires that the intent to commit such acts must be made clear. Israel's military insists it does not intend to harm civilians and only wants to target Hamas.

It is also worth noting that Israel seems to have forgone its decades-long policy of ignoring the ICJ and has put up a defence against South Africa's allegations.

Israel's Ministry of Foreign Affairs has denied the allegations and called the case a “despicable and contemptuous exploitation” of the court. It further accused Pretoria of being “criminally complicit” in Hamas’ attacks.

Israeli Foreign Affairs Ministry spokesperson Eylon Levy said, “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy.”

Both sides have drummed up support from other countries.

The US has rejected South Africa's petition with White House National Security Council spokesperson John Kirby saying, "We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.”

Meanwhile, Turkey, Jordan, and Malaysia are some of the countries that have thrown their weight behind South Africa.