On 29 December, South Africa submitted a case against Israel to the International Court of Justice, accusing Israel of genocide of the Palestinian people in Gaza and calling for an immediate ceasefire.
Since 7 October, Israel has killed at least 23,469 Palestinians living in Gaza. Almost half of the people killed have been children and infants. In the same time period, Israel has gravely injured at least 59,604 people living in Gaza. Another 7,000 people are missing under the rubble and are presumed to be dead.
The International Court of Justice
The International Court of Justice, also known as the ICJ or the World Court, is the main judicial organ of the United Nations. The Court was established in 1945 to settle legal disputes between UN Member States in accordance with international law and to give advisory opinions on legal questions.
The International Court of Justice differs from the International Criminal Court (ICC), which was established in 2002 to investigate and try individuals charged with the crimes of genocide, war crimes, crimes against humanity, and crimes of aggression.
Some differences between these courts:
- The ICJ deals with disputes between countries and crimes perpetrated by governments (rather than individuals), while the ICC deals with cases against individuals for war crimes or crimes against humanity.
- The ICJ is one of the United Nations’ six principal bodies. The ICC is not a United Nations organisation, but it has a cooperation agreement with the UN and is endorsed by the UN General Assembly.
- The ICJ allows UN Member States to file legal cases against other countries for violating international law, while the ICC internally examines crimes to determine if there is enough evidence to begin a trial.
Both Courts have been accused of bias and Eurocentrism. The majority of ICC investigations have been in African countries, which has led to claims of selective justice, bias against Africans, and upholding European colonial power over the Global South. The ICJ has also been accused of bias. A 2005 study showed strong evidence that judges in the ICJ are more likely to vote in the interests of the states that appointed them to the Court. The same study found strong evidence that judges also favour states with similar wealth levels to theirs.
Both Courts have no power to enforce their rulings. While ICJ rulings are considered final, the Court relies on the UN Security Council to enforce judgements. The ICJ also gives veto power to UN Security Council Permanent Members, which are China, France, Russia, the UK, and the US, which is Israel’s strongest ally. The ICC relies on the cooperation of member states to bring individuals to trial.
What South Africa’s claim can do
The International Court of Justice could take months, or years, to reach a decision on this case.
- Regardless of what the Court rules, South Africa’s decision to bring charges to the ICJ against Israel both highlights and reaffirms the solidarity between Black South Africans and Palestinians. South Africa’s decision has also shown solidarity between people of the Global South and Palestinians, and is a clear statement of international support for Palestine amidst the genocide.
- This case being brought to the ICJ by South Africa in particular, with their recent history of struggling against and overcoming colonial violence and apartheid, adds another element of solidarity in submitting this case.
- South Africa is fulfilling its duty to prevent genocide by initiating proceedings against Israel, as a State party to the Genocide Convention.
- The ICJ could issue an order for an immediate ceasefire in Gaza after hearing initial legal arguments. Israel doesn’t have to comply with this order, but it could make their allies less inclined to continue to support their attack on Gaza.
- The Court could approve South Africa’s provisional request for Israel to allow humanitarian aid into Gaza.
- An ICJ ruling (and trial) adds to the historical record of Israel’s crimes against humanity and against the Palestinian people. This could benefit international support for Palestine and could encourage countries to politically isolate Israel.
- If the ICJ rules that Israel is committing genocide against Palestinians in Gaza, the International Criminal Court could issue arrest warrants for individuals guilty of genocide without having to conduct their own preliminary examinations and investigations.
- If the ICJ rules that Israel is committing genocide, foreign governments like the US (who has sent tens of billions of dollars in additional military aid to Israel since 7 October) will be in violation of the Genocide Convention for their complicity in and aiding of the genocide.
“In reality, you will see that states do fail to comply with legal rulings, but it’s still really important that an international institution like the ICJ adjudicates these cases and publicly validates international norms.” — Amanda Ghahremani, international criminal lawyer and research fellow at the Human Rights Center at the University of California, Berkeley
Why Israel’s actions have been referred to as ‘genocide’
South Africa’s case against Israel outlines how Israel’s actions in Gaza violate the Convention on the Prevention and Punishment of the Crime of Genocide. South Africa’s legal team found that Israel is in violation of 4 out of the 5 acts listed in the Convention that define genocide when committed with “intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” These four acts that are listed in the ICJ case are:
- Killing members of a group;
- Causing serious bodily or mental harm to the members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- Imposing measures intended to prevent births within the group.
The fifth act listed in the Convention on the Prevention and Punishment of the Crime of Genocide that is not listed in South Africa’s ICJ case is “forcibly transferring children of the group to another group.”
Although this act is not listed in South Africa’s case, some reports have emerged alleging that Israeli soldiers have abducted Palestinian children and forcibly transferred them out of Gaza.
The Convention also states that genocide, the conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide are all punishable crimes that perpetrators should be tried for.
Previous examples of genocide cases being brought to the ICJ
In 2019, Gambia filed a case to the International Court of Justice against Myanmar for their genocide of the Rohingya people.
In November 2023, Canada, France, the UK, Germany, Denmark, and the Netherlands filed a declaration to join the genocide case against Myanmar at the ICJ. The UK has been accused of double standards in their support of the Rohingya people and their disregard of Palestinians who have been made victims of the same crime.
Although the UK is not supporting South Africa in their claim against Israel, one of the arguments they used to support Gambia in their case against Myanmar was the involvement of children. The UK argued that the violence against children in Myanmar makes the crimes more significant and requires less evidence to prove compared to violence against adults.
However, as of 11 January, Israel has killed more than 10,000 children in only 96 days through airstrikes on Gaza. That means that over 42% of the people killed have been children. More than 10 children per day, on average, have lost one or both of their legs from Israeli airstrikes. More than 1,000 children in Gaza have had one or both legs amputated since 7 October. Because of Israel’s direct attacks on hospitals and the healthcare system in Gaza, many of these amputations have been done without anaesthesia.
“The suffering of children in this […] is unimaginable and even more so because it is unnecessary and completely avoidable. This suffering, the killing and maiming of children is condemned as a grave violation against children, and perpetrators must be held to account.” – Jason Lee, Save the Children’s Country Director for the occupied Palestinian territory.
Despite evidence of Israel committing 4 of the 6 grave violations of children’s rights against Palestinian children in Gaza, the UK has yet to give their support to South Africa in their case against Israel.
As of 9 January 2024, the legal proceedings against Myanmar are still ongoing.
Role of the Global South in pushing this case forward
Despite the UK not giving their support for South Africa’s case against Israel, other countries have joined the case in support of Palestine.
As of 12 January, other countries that support holding Israel accountable for their crimes through this case submission are:
- Jordan
- Bolivia (the first Latin American country to back the case)
- Malaysia
- Turkey
- Namibia
- The Maldives
- Pakistan
- Colombia
- Brazil
- Venezuela
The regional bodies of the Arab League and the Organisation of Islamic Countries (which includes Saudi Arabia, Iran, Pakistan, and Morocco) have also given their support for the case.
Many Western countries have stayed silent about the genocide and have thus far chosen to not support South Africa’s case. The support for this case has come from the Global South, where many countries have similar histories of struggle against western imperialism and colonialism.
South Africa’s submission of this case, and the Global South’s support of it, also highlights how international law and human rights have not been adequately upheld by the West. These human rights bodies and international legal frameworks were built and are upheld by Western powers, but this case shows how they are not qualified to speak on human rights because they have not been willing to stand against colonialism, which is at direct odds with human rights.
Initial ruling
On 26 January, four weeks after South Africa submitted their case against Israel, the International Court of Justice made an initial ruling. The final decision is expected to take years.
Most notably, the ruling did not call for an immediate ceasefire in Gaza, or any suspension of Israel’s attacks. This was South Africa’s first and most important requested provisional measure. However, the ruling stated that Israel’s genocide of Gaza is plausible, which gives the case a legal basis to proceed.
The Court also ordered the following:
- For Israel to take all measures to prevent genocide and genocidal acts against Palestinians
- For Israel to ensure that their military does not commit any genocidal acts
- For Israel to prevent and punish public incitement of genocide against Palestinians
- For Israel to ensure that humanitarian aid is able to reach Palestinians in Gaza
- For Israel to ensure that evidence related to the allegations of genocide are preserved
- For the release of Israeli hostages held in Gaza
- For Israel to submit a report to the ICJ in one month showing its compliance with these orders
The ICJ has historically called for a ceasefire in 2022, against Russia in its attack on Ukraine. This was also a case of allegations of genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide.
Without a ceasefire, these orders are difficult to achieve or prove. Israel has been bombing residential blocks, hospitals, schools, and even tents of sheltering people who have lost their homes. The most important measure needed in order to prevent the continued genocide of Gaza is to stop the bombing. Failing to demand an immediate ceasefire only ensures the murders of more Palestinians in Gaza, and the continuation of genocide.
These orders also come at a time where there are more internet blackouts in Gaza and declining international engagement over what’s happening. This means that there is less connection between Gaza and the outside world, which could give Israel the ability to continue their genocide without repercussions. Failing to call for a ceasefire has also given Israel and its supporters a metaphorical ‘green light’ in continuing the genocide against Palestinians.
“Even if the ICJ had ordered a ceasefire, it seems unlikely Israel would have abided by the ruling. That said, by failing to call for an end to the hostilities, the ICJ has no doubt left many Palestinians expecting only more brutality in the days and weeks to come.” – Danylo Hawaleshka for Al Jazeera