Published: 4 January 2024
Last updated: 5 March 2024
South Africa is leading the allegation against Israel, claiming the war against Hamas which followed the October 7 massacre is ‘genocidal’ in character.
The first hearing at the International Court of Justice (ICJ) on the South African filing accusing Israel of perpetrating genocide against the Palestinians in the ongoing war with Hamas in Gaza is scheduled for next week.
A January 11 hearing will see South African representatives lay out their case against Israel, while Israel will present its defence against the charges on January 12, according to a schedule announced by an Israeli government spokesman.
The spokesman said Israeli representatives will appear before the court to defend Israel’s position, which he described as “a blood libel” against the Jewish state.
In its application filed last week, South Africa accused Israel of actions during its war against Hamas in Gaza that 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.”
The accusation is vehemently denied by Israel. “The State of Israel emphatically condemns South Africa’s decision to play devil’s advocate and make itself criminally complicit with the perpetrators of the October 7 massacre,” said Israeli government spokesperson Eylon Levy during a press conference on Tuesday.
If the court rules that Israel committed genocide, the damage will be largely in the court of public opinion, though it could empower the BDS movement.
Levy said it was “tragic” that South Africa was “fighting pro bono for anti-Jewish racists,” and said that “history will judge South Africa for abetting the modern heirs of the Nazis”.
But a group of prominent Israelis has accused the country’s judicial authorities of ignoring “extensive and blatant” incitement to genocide and ethnic cleansing in Gaza by influential public figures.
In a letter to the attorney general and state prosecutors, the group of academics, former diplomats, former members of the Knesset, journalists, scientists and activists demanded action to stop the normalisation of language that breaks both Israeli and international law.
“For the first time that we can remember, the explicit calls to commit atrocious crimes, as stated, against millions of civilians have turned into a legitimate and regular part of Israeli discourse,” they write. “Today, calls of these types are an everyday matter in Israel.”
In the past Israel has refused to appear before the ICJ. In 2004, Jerusalem declined to appear before the ICJ when it heard and eventually ruled against the legality of the West Bank security barrier.
But Israel is a signatory to the Genocide Convention adopted by the United Nations General Assembly in 1948 and is therefore subject to the jurisdiction of the ICJ, a UN organ, and its rulings. Under the terms of the convention, Israel is obliged to send representatives to the court following the submission of a filing against it.
American lawyer Alan Dershowitz has been suggested as one of the possible representatives.
While the ICJ is a civil tribunal that hears disputes between countries, the International Criminal Court (ICC) investigates and prosecutes individuals accused of planning and directing war crimes.
The ICC is already investigating alleged war crimes committed by both Israel and Hamas stemming from the October 7 attacks. Israel denies jurisdiction with the ICC and with the UN Human Rights Council probes.
The ICJ has no enforcement mechanism. If the court rules that Israel has committed genocide, the damage will be largely in the court of public opinion, though it could empower the BDS movement. The US and a number of EU allies will probably express public disagreement with the ruling.
By contrast, the ICC can demand that its member states, virtually all of Europe, arrest any Israeli who it might charge with a crime.
“The feeling that we will stop soon is incorrect. Without a clear victory, we will not be able to live in the Middle East.”
Israel's Defence Minister Yoav Gallant
War is expanding
The death toll in Gaza has passed 22,000, according to the Palestinian health ministry and Israel is now fighting on two fronts, with further expansion feared.
Among those recently declared dead are an Australian Israeli and an Israeli hostage kidnapped by Hamas on October 7. Sahar Baruch, 25, was killed on December 8 in connection with an IDF rescue attempt, the military revealed on Wednesday. The IDF did not reveal whether Baruch was killed by Hamas or by accident by friendly fire.
Israeli defence minister Yoav Gallant said this week that the government was planning for a long war. “The feeling that we will stop soon is incorrect. Without a clear victory, we will not be able to live in the Middle East,” he said.
Israel announced the first drawdown of troops from Gaza this week, in order to redirect troops to fight in the north of Israel. The war against Lebanese-based Hezbollah and Hamas escalated significantly with an Israeli drone strike that killed the senior Hamas official Saleh al-Arouri late on Tuesday afternoon. Hamas called off all hostage negotiations in protest and his death is seen as a blow not only to Hamas but the broader network.
Al-Arouri's death follows last week’s killing of Brigadier General Sayyed Razi Mousavi, a senior adviser to Iran’s Islamic Revolutionary Guards Corps, responsible for the shipping of arms to Hezbollah. Mousavi was killed in a missile strike outside Damascus, which Iran blames on Israel.
Tensions were further heighted on Wednesday with the bombing of a ceremony to mark the fourth anniversary of the US’s assassination of Qassem Suleimani, the Revolutionary Guards commander. Iran has reported the deaths of more than 95 people.
The risk of war south of Israel is also growing. Houthi attacks on ships in the Red Sea had already spurred grave concerns about escalation. US intelligence says Iran is involved and US President Joe Biden has said he wanted to avoid direct clashes with the Houthis for this reason.
But on Sunday, the US military said that its helicopters had killed fighters who fired on them when they came to the aid of a container ship, and the US and UK are reportedly considering attacking bases in Yemen.
READ MORE
Israel confirms it’ll defend itself from Gaza genocide claims in The Hague next week (Times of Israel)
ICJ vs ICC: Why Israel defends itself against Gaza genocide claim - analysis (Jerusalem Post)
Israeli public figures accuse judiciary of ignoring incitement to genocide in Gaza (Guardian)
Gaza death toll passes 22,000 as Israel steps up war against Hamas (Guardian)
Hamas hostage Sahar Baruch killed during IDF rescue attempt (Jerusalem Post)
The Guardian view on escalation in the Middle East: the danger of a regional war is growing (Guardian)
More than 100 people killed in twin blasts near slain Iran commander’s grave (CNN)
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