South Africa’s Genocide Case Against Israel: What to Expect as Hearings Begin at The Hague

This week, the war in Israel and Gaza enters the courtroom, with a group of international judges set to hear arguments Thursday for and against the claim that Israel is engaged in genocide in its campaign against Hamas.

South Africa brought the case at the International Court of Justice, the U.N.’s top court, despite fierce opposition from Israel and the U.S.

From Washington’s point of view, the suit is “meritless, counterproductive, and completely without any basis in fact whatsoever,” U.S. National Security Council spokesman John Kirby said last week. 

Eylon Levy, an Israeli government spokesman, accused South Africa of “giving political and legal cover” to the devastating October 7 attacks on Israel by Hamas, which took 1,200 lives and were the trigger for the current conflict. 

But with the death toll in Gaza soaring past 23,000, according to the Hamas-led Health Ministry, many other nations have lined up with South Africa, including the 57-member Organization of Islamic States, which includes not just U.S. adversaries such as Iran but also allies such as Saudi Arabia. 

Malaysia, Jordan and NATO ally Turkey have also voiced support for the case, in which South Africa alleges that Israel’s military actions in Gaza “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.”

South Africa will make its argument Thursday and will be followed by Israel on Friday.

The Messenger looked at the charge, the likely defense, and its potential impact in the war itself. 

The allegation 

The 1948 United Nations convention on genocide, the first human rights treaty adopted by the U.N. General Assembly, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.”

Both South Africa and Israel are signatories to the U.N. convention. 

South Africa laid out the outlines of its case in an 84-page brief filed with the ICJ, in which it alleges that Israel has engaged in various “genocidal acts” since October 7. 

“Those acts include killing them (the Palestinian people in Gaza), causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group,” the brief says, citing Israel’s "failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people."

South Africa's brief also argues that statements by top Israeli officials have expressed "genocidal intent.”

The brief cites an Oct. 16 address by Israeli Prime Minister Benjamin Netanyahu in which he called the war "a struggle between the children of light and the children of darkness, between humanity and the law of the jungle," and Defense Minister Yoav Gallant’s statement that Israel is “fighting human animals” and would “act accordingly” against them.

“The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” the application charges.

Israel’s response

Israel has rejected the allegations for a number of reasons. This week the country’s President, Issac Herzog, said that Israel was engaged in a war of self-defense that would never have happened had Hamas not carried out the Oct. 7 massacre. South’s Africa’s allegations, he said, were “atrocious and preposterous.”

"We will be there at the International Court of Justice and will present proudly our case of using self-defense under our most inherent right under international humanitarian law,” Herzog said.

Israel has not made public the specifics of its planned rebuttal of the charges, but analysts in Israel say the defense will likely include several points that go beyond the overall argument that Hamas started the war.

Israeli lawyers are likely to note repeated statements by the country's leaders and commanders that its war is aimed only at destroying Hamas, and the fact that several Israeli officials have said recently that they have no interest in removing Palestinians from Gaza.

The Israeli defense is also almost certain to highlight Hamas’s documented practice of embedding its military installations and combatants in Gaza’s civilian infrastructure, and the fact that the Israel Defense Forces have repeatedly warned Gaza's civilians to evacuate prior to attacks.

The court—and the judges

The case will be heard by judges at the ICJ, a body that is often confused with the International Criminal Court. Both are based in The Hague, in the Netherlands, but the Criminal Court handles war crimes cases against individuals, not countries, and is not recognized by the U.S. or Israel. Both countries do recognize the ICJ, which is hearing the genocide case. 

Israel will send its own legal team to defend itself against the genocide claim. Leading the charge on behalf of Israel will be a British lawyer, Professor Malcom Shaw, a top human rights expert, and a published author on the law of genocide.

Israel also has the right—accorded to all parties to any case before the court—to nominate a judge to sit on the panel that will hear the arguments; and for that, it has turned to a former Israeli Supreme Court president, Aharon Barak. Barak also happens to be a survivor of the Holocaust, having fled ​​Nazi-occupied Lithuania as a boy.

South Africa has done the same, nominating a former deputy chief justice, Dikgang Moseneke, to sit on the panel that will hear the case.

The impact—immediate and long term

The case itself could take years to play out. A 1993 charge of genocide brought by Bosnia against Yugoslavia wasn’t resolved until 2007, for example. (In the ruling, the ICJ acquitted Serbia, the successor state to Yugoslavia, of committing genocide.) 

But in the meantime, as the war in Israel and Gaza continues, South Africa is seeking an interim ruling from the court asking Israel to pause its military campaign. As a first step, it will ask the court to decide whether “the acts complained of… are capable of falling within the provisions of the genocide convention.” In more common legal terms, it’s the equivalent of a preliminary ruling that determines whether a case has merit and should go forward.  

Even if the court rules in favor of South Africa’s application, it can’t actually compel Israel to pause the fighting. But the stakes are high nonetheless, particularly in the court of global opinion. That preliminary ruling–if it comes–will at minimum present a major PR challenge for Israel and could galvanize the already growing international calls for an end to the war in Gaza.

Israel is clearly aware of the risks. In a recent cable sent by Israel’s foreign ministry to its embassies around the world and obtained by Axios, Israel warned that “a ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications.” 

It went on to ask Israeli diplomats to ask their host countries to issue public statements refuting the allegations, and to argue that Israel was working to “increase the humanitarian aid to Gaza, as well as to minimize damage to civilians, while acting in self-defense after the horrible October 7th attack by a genocidal terrorist organization.”