This article was originally published in the New Arab on 10 Jan, 2024. An edited version is republished on Global Voices as part of a content-sharing agreement.
The case is one of at least three Israel is potentially facing at the ICJ and International Criminal Court (ICC) over its brutal campaign against the besieged Palestinian enclave of Gaza.
Israel's ferocious offensive has targeted schools, hospitals and residential areas and has so far killed at least 23,210 people in Gaza — two-thirds of them women and children.
This article looks at South Africa's case against Israel at the ICJ and what will happen during the legal proceedings.
What is the difference between the ICJ and the ICC?
The International Court of Justice (ICJ) is often confused with the International Criminal Court (ICC). The ICJ, also called the World Court, is the highest United Nations legal body, established in 1945 to deal with disputes between states.
The ICC, also in The Hague, handles war crimes cases against individuals.
The ICJ's 15-judge panel — which will be expanded by an additional judge from each side in the South African case against Israel — deals with border disputes and increasingly cases brought by states accusing others of breaking UN treaty obligations. Each judge is elected for a nine-year term by the UN General Assembly and Security Council.
However, the ICC is the world’s only permanent international criminal court and is governed by an international treaty called the Rome Statute.
What is the claim put forward by South Africa?
In its 84-page filing South Africa says Israel is committing genocide by killing Palestinians in Gaza, causing them serious mental and bodily harm and by creating conditions of life “calculated to bring about their physical destruction.”
It lists Israel's failure to provide essential food, water, medicine, fuel, shelter and other humanitarian assistance to the Gaza strip during the more than three-month war. It also points to the sustained bombing campaign that has laid much of the enclave to waste, forced the evacuation of some 1.9 million Palestinians and killed over 23,000, people according to Gaza health authorities.
“The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention,” the filing says, adding that Israel also failed to curb incitement to genocide by its own officials, also in violation of the convention.
While the court decides on a ruling, South Africa has also requested the court to impose emergency measures to cease alleged violations by Israel.
Such provisional measures are meant to prevent a situation from worsening until the final ruling has been announced.
What is the genocide convention?
Regarded as the first human rights treaty in UN history, the Convention on the Prevention and Punishment of the Crime of Genocide was ratified by 153 countries. It defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.”
Such acts include killing members of any named marginalised group, which causes them serious bodily or mental harm, as well as destroying their living conditions. This includes acts such as preventing them from giving birth or forcibly transferring their children to other groups.
All states that signed the Genocide Convention are obliged not only to never commit genocide but also to prevent and punish it.
When will the case proceed?
The hearings will take place on January 11 and 12.
South Africa and Israel will each have two hours on separate days to make their case for or against emergency measures. There will be no witness testimony and no cross-examinations. The presentation will be mostly legal arguments brought by state officials and their teams of international lawyers.
The request for emergency measures is a first step in a case that will take several years to complete.
Formally called provisional measures, they are meant as a kind of restraining order to prevent a dispute from getting worse while the court looks at the full case.
The court will not make a final determination on South Africa's genocide allegations until a hearing of the case on the merits, which is likely years away.
However, as this week's hearings are only about possibly granting emergency measures, it may only take either weeks or months until they decide on a ruling.
Judges at the ICJ often grant such measures, which generally consist of asking a state to refrain from any action that could aggravate the legal dispute.
For provisional measures the court only has to decide if at first glance, or prima facie, it would have jurisdiction and the acts complained of could fall within the scope of the genocide treaty. Any measures it decides would not necessarily be those requested by the complainant.
What are the possible outcomes and what happens next?
The ICJ’s ruling is final and cannot be appealed against. However, it cannot enforce its decisions.
Even if the court decides not to put in place an interim measure, the ICJ could decide it still has jurisdiction and proceed with the case.
In Ukraine’s case, despite the ICJ ordering Russia to stop its military operations in Ukraine, Russia's invasion has continued.
Since it is unclear what concrete effects an ICJ ruling against Israel would have, it may be likely to contribute to isolating the country politically and economically.
Israel’s decision to defend itself at the global court means it can present legal arguments justifying its actions in Gaza.
On the other hand, the tactic could also led to further international condemnation if it does ultimately lose the case and is found guilty of breaching the UN genocide convention.
Meanwhile, Bolivia, together with South Africa, Bangladesh, Comoros and Djibouti, presented a request to the Prosecutor of the International Criminal Court to separately investigate the situation in Palestine on November 17.