by The International Court of Justice, the United Nations’ highest judicial body, will begin hearings this week in a case brought by South Africa accusing Israel of committing genocide in Gaza.
The hearings, the first step in a long process should the case move forward, will be the first time that Israel has chosen to defend itself, in person, in such an environment, demonstrating the seriousness of the accusation and how much it is in game for his country. reputation and international prestige.
Genocide, the term first used by a Polish lawyer of Jewish descent in 1944 to describe the systematic murder by the Nazis of some six million Jews and others based on their ethnic origin, is among the most serious crimes. of which a country can be accused.
In its submission to the court, South Africa cited that lawyer, Raphael Lemkin, to expand the definition of genocide. South Africa, whose post-apartheid government has long supported the Palestinian cause, accused Israel of actions in Gaza against Hamas that are “genocidal in nature.” It says Israel has killed Palestinian civilians, inflicted severe physical and mental harm, and created for Gaza residents “living conditions calculated to bring about their physical destruction.”
More than 23,000 Palestinians have been killed in the past three months, most of them women and children, according to Gaza health officials. And most of the enclave’s 2.2 million residents have been displaced since the war began, increasing the danger of disease and hungeraccording to international organizations.
The accusation, which Israel categorically denies, is fraught with particular significance in Israel, a country founded in the wake of the near-total destruction of European Jewry and which soon after became a refuge for expelled Jews by the hundreds of thousands. of Arab lands.
Israel, a signatory to the 1948 International Genocide Convention, is keeping details of its defense for the court. But Israeli leaders say South Africa’s accusations pervert the meaning of genocide and the purpose of the convention. They say a better case could be made against Hamas, an organization internationally considered terrorist and which is the target of Israel’s military campaign in Gaza.
“There is nothing more egregious and absurd than this statement,” President Isaac Herzog of Israel said Tuesday. “In reality, our enemies, Hamas, in their charter, call for the destruction and annihilation of the State of Israel, the only nation state of the Jewish people.”
Ayelet Shaked, former Israeli justice minister, called the genocide accusations a “blood libel,” a reference to the old anti-Semitic trope that Jews kill non-Jewish babies to drink their blood, and claimed that the South African government was using the case to distract his own public from his country’s internal problems.
The International Court of Justice resolves disputes between states and initial hearings in the Israel case will take place on Thursday and Friday in The Hague.
The case brings to a public forum popular condemnation of Israel’s conduct of the war in much of the developing world. In December, the UN General Assembly passed a non-binding resolution, put forward by the Arab Group and the Organization of Islamic Cooperation, calling for a ceasefire; and the Security Council approved a binding resolution, also promoted by Arab countries, calling for the delivery of more humanitarian aid.
South Africa presented a 84 pages petition to the court in December in which he sets out his claims and cites statements by Israeli officials, which he says “constitute a clear direct and public incitement to genocide, which has not been controlled or punished.”
The Israelis have pointed out that some of the evidence South Africa cites is thin. Examples include a comment made in a television interview by an Israeli pop star, Eyal Golan, who said that Israel should “erase” Gaza.
In a statement released Tuesday evening, Israel’s attorney general and state prosecutor said any call to intentionally cause harm to civilians may constitute a criminal offense of incitement. “Israeli law enforcement authorities are currently examining several such cases,” the statement added.
South Africans have long empathized with the Palestinian people, equating their lives in Gaza and under occupation in the West Bank with the oppression suffered under apartheid. Nelson Mandela explicitly expressed this connection, saying in a speech from 1997“We know very well that our freedom is incomplete without the freedom of the Palestinians.”
That sentiment is driving South Africa’s case, said Ronald Lamola, the country’s justice minister, who will lead the delegation to The Hague. “We believe it is important for a state like South Africa, which has experienced the discrimination of apartheid, to stand firmly with the people of Palestine,” he said in an interview.
Israel, for its part, says it did not choose war but was forced to do so after Hamas led a cross-border attack against it on October 7. Around 1,200 people, most of them civilians, were killed in the attack, according to the Israeli authorities, making it the deadliest day in Israel’s 75-year history and for Jews since the Holocaust. More than 100 of the 240 captives captured on October 7 remain detained in Gaza.
The UN rapporteurs said in a declaration on Monday that the Hamas-led attack, which included murder, hostage-taking, rape and mutilation, could constitute war crimes and, given its magnitude, perhaps also crimes against humanity.
A final ruling could take years, but as an emergency provision, South Africa is asking the court to order Israel to immediately stop its military operation.
“All South Africa has to do to obtain a provisional measures order is convince the court that its charge of genocide is ‘plausible,'” said William Schabas, former chairman of a U.N. commission of inquiry into South Africa’s military operations. Israel in the Gaza Strip. in 2014, professor of international law at Middlesex University in London.
South Africa, Professor Schabas said, had so far only laid out “the skeleton of its case” and it would be months before it assembled all its evidence. “Only then can we truly assess the full strength of the South African case,” he said.
The court’s decisions are usually binding, although it has few means to enforce them. In 2004, the court issued a non-binding opinion that Israel’s construction of its security barrier within the occupied West Bank was illegal and should be dismantled. Twenty years later, the system of walls and fences still stands.
But Hamas cannot be a party to the case, because the International Court of Justice only deals with disputes between states. So even if the court orders Israel to stop or change its fighting, it could not impose the same obligation on Hamas.
Israel’s military insists it is carrying out the war in accordance with international law. Officials point to the millions of messages, sent by various means, asking Gazan civilians to evacuate to safer areas ahead of the bombings, and say they are constantly working to increase the amount of aid coming into Gaza.
The death toll in Gaza, they say, is partly attributable to Hamas’s use of residential areas and civilian structures, including schools and hospitals, to launch attacks, store weapons and hide fighters.
Rear Admiral Daniel Hagari, the army’s chief spokesman, categorically refuted the genocide charge and said the court should focus on how the war began on October 7. “We were the ones massacred,” Admiral Hagari said.
In Israel, the case is being handled at the highest level. The government has appointed one of the country’s most prominent jurists, Aharon Barak, as a judge ad hoc to join the court on its behalf. (To hear the Gaza case, the court’s usual 15-judge panel will be expanded to 17, with each side appointing an additional judge.)
Barak was given the task even though he criticized Israel’s right-wing government last year over a planned judicial reform. Barak, retired president of Israel’s Supreme Court, is a Holocaust survivor who fled Nazi-occupied Lithuania as a child.
Israel’s legal team in The Hague will be led by Malcolm Shaw, a British expert chosen for his experience in litigation before the World Court. The South African team will be led by John Dugard, a renowned scholar of international law and former United Nations special rapporteur on human rights in the occupied Palestinian territories.
In a statement, Hamas welcomed South Africa’s decision to bring the case and called on “all countries to submit similar files and requests to the competent national and international courts against this Nazi entity,” referring to Israel.
The United States, Israel’s most important ally, denounced South Africa’s request. John Kirby, spokesman for the National Security Council, described it as “unfounded, counterproductive and completely baseless.”
While the South African government maintains it is pursuing its case to stop a genocide, analysts say officials were most likely motivated by domestic political and diplomatic pressures.
In the two years that Russia has waged its war in Ukraine, South Africa has vigorously resisted condemning Russia, a crucial ally. In taking that stance, South African officials often pointed to what they say is a double standard: U.S. officials demanded support for Ukrainian sovereignty but paid little attention to Palestinian demands, they said.
“South Africa wanted to make a point very clear: to point out these contradictions in the global, institutional and multilateral order,” said Priyal Singh, senior researcher at the Institute for Security Studies, a think tank.
Support for the Palestinians has long been a popular rallying point in South Africa, and Singh said politicians from the ruling African National Congress are exploiting that support ahead of a major national election this year.
Patrick Kingsley, Marlis Simons and Myra Noveck contributed reports
