Could the genocide case against Israel at the UN's top court have an impact on the war in Gaza?
by Audrey Courty, ABC News · RNZThe first public hearings in South Africa's genocide case against Israel are set to take place in a high-stakes showdown at the United Nations' top court.
South Africa claims Israel is intending to destroy "a substantial part" of the Palestinian population in Gaza, and will present its argument before the International Court of Justice (ICJ) in the Netherlands on Thursday (local time).
Israel - which has flatly rejected the allegation it is deliberately targeting civilians in its war against Hamas - will then present its defence against the genocide claim on Friday.
"South Africa's claim has no factual and judicial basis, and constitutes despicable and contemptuous exploitation of the court," the Israeli foreign ministry has said in a statement.
But deciding the allegation of genocide will likely take years.
This week's hearings are about deciding whether provisional measures are needed - like a ceasefire or suspension of hostilities in Gaza - until the court reaches a verdict on the genocide case.
To make this interim ruling, the court only needs to be satisfied that a genocide occurring is plausible and that there's a risk of irreparable harm if provisional measures are not set in place.
But even if the court does order a pause on combat operations, Israel can ignore it.
The court has no power to enforce such measures, instead relying on the political pressure that would come from such a ruling.
Still, international law experts say any provisional judgment could still have some important ramifications. Here's why.
What is genocide?
The 1948 Genocide Convention defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".
The convention states such acts include:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
Juliette McIntyre is a law lecturer at the University of South Australia who specialises in international court proceedings.
She says the "trickiest part" of proving genocide is providing evidence of intent that meets the strict standards of the court.
"It's not enough to simply kill enormous numbers of people," she says.
"You need to have this intention behind those acts of killing to wipe out, in whole or in part, a particular religious, racial or ethnic group."
Markus Wagner, a law professor at the University of Wollongong, says there is a "very high threshold" for this legal standard because genocide is the "crime of crimes".
Evidence of genocidal intent "has to be very direct" and "fully conclusive," he says. "It has to be persuasive, consistent evidence of a pattern of atrocities."
Both Israel and South Africa are bound by the Genocide Convention because they have signed and ratified it.
Why has South Africa filed this case?
Even though South Africa is not directly involved in the Israel-Hamas war, the 84-page filing to the ICJ argues South Africa has a responsibility to prevent and punish genocide under the terms of the Genocide Convention.
The convention states that disputes between nations over this convention can be submitted to the ICJ.
At a UN general assembly, South Africa's Ambassador to the UN, Mathu Joyini, compared Israel's policies regarding Palestinians in Gaza and the West Bank with South Africa's past apartheid regime of racial segregation.
"As a UN Member State and owing to South Africa's painful past experience of a system of apartheid, this impresses on us, as Member States, to take action in accordance with international law," Joyini said.
South Africa's filing to the ICJ argues Israel's actions "are genocidal in character because they are intended to bring about the destruction of a substantial part" of the Palestinian population in Gaza.
"The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction," the filing says.
It further claims those genocidal conditions include:
- Expulsions from homes and mass displacement
- Deprivation of access to adequate shelter, clothes, hygiene and sanitation
- The destruction of the life of the Palestinian people in Gaza
- Imposing measures intended to prevent Palestinian births
South Africa has asked the ICJ to declare Israel "has breached and continues to breach its obligations under the Genocide Convention".
It has also asked Israel to be ordered to end hostilities in Gaza that could amount to breaches of the convention, to offer reparations, and to provide for reconstruction of what it says Israel has destroyed in Gaza.
In the filing, South Africa has quoted dozens of public statements by Israeli officials - including the president, prime minister and minister of defence - which it says show "clear intent to destroy Palestinians in Gaza as a group".
"They also constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished," the document says.
McIntyre says the evidence South Africa has provided forms "a strong legal basis" for the ICJ proceedings.
"Without question, the facts that South Africa has presented meet the criteria of a plausible case," she says.
"South Africa has to meet this very strict standard [of genocidal intent], which is usually very difficult. But given some of the rhetoric that's coming from Israeli politicians at the moment, it may not be as difficult."
Professor Wagner - who used to serve as a clerk to the then-president of the Israeli Supreme Court of Justice, Aharon Barak - says although South Africa "goes a long way" toward proving intent, it's ultimately "a weak case".
Aharon Barak was this week nominated by Israel to be its ad hoc judge on the ICJ panel to hear the case.
Wagner says some of the cited comments from Israeli officials - like references to "fighting human animals" - may constitute hate speech, but not genocidal intent.
"I don't think it's a direct appeal to commit genocide. I really struggle to see it," he says. "Direct incitement cannot be a mere vague or indirect suggestion."
But he says there are some comments that do "border on genocidal in their language" and it's "a real problem" for Israel because "it hasn't genuinely, criminally investigated these specific public calls".
Wagner cites as an example the Israeli Heritage Minister's suggestion that Israel drop a nuclear bomb on Gaza.
"That person was suspended but not fired and not prosecuted. That's where I think you can make an argument that it's not taken as seriously as it should have been."
What was Israel's response?
The Israeli government has categorically rejected South Africa's genocide accusation.
The foreign ministry blamed the Hamas militant group for the suffering of Palestinians in Gaza "by using them as human shields and stealing humanitarian aid from them".
More than 1200 Israelis and foreigners died in Hamas's 7 October attack on southern Israel, which the ministry says triggered the military operation in Gaza.
According to Gaza's health ministry, more than 22,000 Palestinians have died in the past three months of war.
The Israeli foreign ministry reiterated that Israel "acts in accordance with international law" and directs its military efforts only against Hamas and "other terrorist organisations" that cooperate with the group.
"Israel has made it clear that the residents of the Gaza Strip are not the enemy, and is making every effort to limit harm to the non-involved and to allow humanitarian aid to enter the Gaza Strip," the statement goes on to say.
Eylon Levy, a spokesperson for the Israeli prime minister's office, has confirmed Israel will send a legal team to The Hague this week "to dispel South Africa's absurd blood libel".
Another Israeli official told the Associated Press that part of the reason Israel would attend the legal proceedings was because "we have a strong case".
The official - who spoke on the condition of anonymity because he was discussing behind-the-scenes deliberations - also noted Israel's role in promoting the original genocide convention after the Holocaust.
The US has backed Israel's response, saying it has not observed any acts in Gaza that constitute genocide.
"Those are allegations that should not be made lightly," US State Department spokesperson Mathew Miller said. "We are not seeing any acts that constitute genocide."
What are this week's public hearings about?
These hearings will be about deciding whether to implement interim measures to stop combat operations in Gaza while the ICJ deliberates over the question of genocide, which could go on for several years.
"At this early stage of the case, South Africa doesn't have to prove that Israel has committed genocide. It needs to really establish that there's a plausible legal question," McIntyre says.
"Provisional measures are designed to basically tell everyone to stop what they're doing and allow the court to rule on the legality of certain actions before anyone proceeds any further."
She says this system is basically set up to ensure the court can make an effective judgment without the parties involved in the dispute causing irreparable damage in the process.
"The proceedings are usually very grandiose and, oftentimes, rather dull because very lengthy speeches are read out."
Based on the turnaround in previous cases, the international court is likely to deliver its interim ruling by the end of January, McIntyre says.
Wagner predicts the court will decide in favour of implementing some of the provisional measures that South Africa has requested but not on the question of genocide.
"That threshold for provisional measures is much more relaxed because all that those requirements are trying to do is freeze the legal situation in play," he says.
"I think it's much harder to prove that Israel has committed genocide ... and I think there is a risk of losing sight of the larger picture.
"Even if Israel were found to not be responsible for genocide, it may still be liable for committing war crimes or crimes against humanity."
Israel has also rejected allegations that it has committed war crimes and crimes against humanity, saying it has acted with proportionality against Hamas.
What impact could the hearings have?
Although the UN has limited capacity to enforce a potential ruling in favour of provisional measures, it could put political pressure on Israel and its allies.
"Unfortunately, the court doesn't have the power to enforce [a ceasefire] itself. In the same way that a court in a domestic context doesn't itself really have the power to enforce its judgments and we look to other mechanisms, such as police forces," McIntyre says.
"What the UN system allows for is a state who has a judgment to petition the Security Council to step in and enforce the judgment, using sanctions or military action if that's required.
"What we have here, of course, is a situation where that's not likely to happen due to the US veto on the UN Security Council."
In a genocide case filed by Ukraine against Russia, the ICJ voted in favour of provisional measures that ordered Russia to "immediately suspend" its military operations in March 2022.
Russia, which has veto power on the Security Council, did not participate in the hearings and has ignored the order.
Wagner says although a ceasefire is unlikely to happen in Gaza, Israel "contradicting the world court is going to make life more difficult" for it.
According to McIntyre, that's because a judgment in favour of provisional measures would still put political pressure on Israel.
"The decision would allow for even allies like the US to say to Israel, 'look, actually, you need to tone it right down on the military part right now'," she says.
"[It] can offer cover and a reason for doing so that's not perceived as backing down against Hamas.
"It could also motivate Israel's allies to withdraw their support or military aid for fear of the "risk of aiding and abetting an internationally wrongful act."
Ultimately, whatever the court finally decides, McIntyre says the case is important in terms of the overall maintenance of international law.
"It puts the evidence before a court who tests that evidence and then if the court accepts that evidence, it ceases to be a matter for debate," McIntyre says.
"It's important that states are continuing to have recourse to the court to make sure they are not getting away with acts, even if it doesn't necessarily translate into changes on the ground."
- This story was originally published by the ABC.