Explainer: South Africa’s Case Against Israel at the International Court of Justice
The ICJ is hearing allegations that Israel has violated the Convention on the Prevention and Punishment of the Crime of Genocide. What is the ICJ? How is the government responding? What are the implications for the war against Hamas and Israel’s international standing? All the answers in a special IDI explainer.
The Interenational Court of Justice
On December 29, 2023, South Africa instituted proceedings against Israel at the International Court of Justice, requesting that the Court rule that Israel is violating the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in the war in Gaza. South Africa is asking the Court to issue orders requiring Israel to cease the alleged violations, and in effect, to end the war.
At the outset, it is important to state clearly that the claim that Israel is committing genocide is baseless and far from the reality. In this explainer, I will outline what the International Court of Justice is, what constitutes the crime of genocide, what claims are being made against Israel by South Africa, and what are the risks associated with this case.
The International Court of Justice
The International Court of Justice (ICJ), situated in The Hague in the Netherlands, is defined in the UN Charter as the United Nations’ main judicial body. The ICJ has two main powers: First, to hear cases on conflicts between UN member states—a power that is conditional on the agreement of the state against which the case is filed. And second, to provide legal "advisory opinions" at the request of the UN General Assembly or of various organizations operating under the aegis of the United Nations.
The ICJ’s power to hear cases between states is dependent, as noted, on the agreement of the country against which the case is filed. Agreement can be given regarding a particular case, or can be given in advance in more general terms. In some international conventions—international agreements which form the basis for international law—authority is explicitly granted in advance to the ICJ to hear cases regarding disputes that relate to the particular convention or to claims of violations. When an international convention to which countries are signatories includes agreement to these judicial powers, there is no need for those countries to agree to the ICJ hearing specific related cases. In almost all such cases, sued countries have appeared in court to defend their position.
The number of cases heard by the ICJ is not large: in total, the Court has heard 191 cases since it began operating in 1947. A large number of these were border conflicts between countries, and in these cases, the rate of compliance with the ICJ’s verdict has been high.
The Judges at the International Court of Justice
The ICJ comprises 15 judges selected by the UN General Assembly, according to a geographical distribution. Currently, the ICJ judges hail from the following countries: the United States, France, Japan, Germany, Australia, Slovakia, Brazil, Jamaica, India, Uganda, China, Somalia, Russia, Lebanon, and Morocco. Because there is no Israeli judge on the Court, Israel has the right to appoint a special judge (a “judge ad hoc”) to cases against it.
Powers to Issue Provisional Measures
The ICJ has the right to issue provisional measures—immediate and urgent orders to prevent the situation from deteriorating, in situations in which prima facie (at first impression), the case presented to the Court is plausible.
Additional Cases Against Israel at the International Court of Justice
Currently, there are no other cases being handled by the ICJ in which Israel is either a claimant or a defendant. In 2004, the Court published an advisory legal opinion at the request of the UN General Assembly, in which it ruled that the construction of the separation fence in the West Bank violated international law. Other ICJ advisory opinion proceedings are underway in response to a request for a legal opinion on the legality of Israel’s occupation of the West Bank.
The Appointment of Aharon Barak to the Court
In light of Israel's right to appoint a special judge (a “judge ad hoc”) to cases against it, Israel has chosen to appoint the former president of the Supreme Court, Aharon Barak, to this role.
This appointment carries much greater weight than might normally be the case for a single appointment among 16 judges in total. Barak’s role is to bring the Israeli perspective to the proceedings. His status as one of the world’s greatest living judges, his extensive judicial experience, and his groundbreaking rulings in the field of international law will undoubtedly influence the position of other judges. His strong reputation as an independent-minded judge who is not afraid to speak truth to power contributes strongly to the great esteem in which he is held.
Of course, the appointment of Barak does not ensure success for Israel in the hearing, but it certainly improves Israel’s chances of avoiding any rulings by the ICJ which it would consider to be particularly problematic.
The Difference Between the ICJ and the International Criminal Court
It is important to distinguish between the International Court of Justice (ICJ) and the International Criminal Court (ICC), which is also located in The Hague but which has no connection with the ICJ. The ICC deals with criminal cases against individuals, not with disputes between states.
The Genocide Convention
The case being brought against Israel is based on the claim that Israel is violating the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), effective since 1951. This was one of the first conventions signed after the Second World War concerning human rights. Underlying the Convention was the desire to define the crime of genocide clearly and to prevent this crime from ever being committed again. The person who “invented” the term “genocide” and was the driving force behind the Convention was the Jewish lawyer Raphael Lemkin, who had fled Poland for the United States during the Second World War. Israel was one of the countries that pushed for the drafting of the Convention, and one of the first countries to sign up to it.
The Definition of Genocide
Article II of the Convention provides a definition of the crime of genocide, incorporating two necessary conditions:
- Intent—the intent to commit genocide. The Convention requires that the state committing the crime did so with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. This condition differentiates the crime of genocide from other serious crimes under international law, making it “the crime of crimes.”
-
Action (actus reus)—the commission of genocidal acts. The Convention defines a series of acts, the commission of any of which meets the condition of actus reus:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
States’ Obligations Under the Convention
According to Article III of the Convention, states are obliged to prevent and punish not only the commission of genocide or complicity in the commission of genocide, but also conspiracy to commit genocide; direct and public incitement to commit genocide; and attempts to commit genocide. Article IX of the Genocide Convention states that disputes between countries that are parties to the Convention are to be heard by the International Court of Justice.
How Can Intent to Commit Genocide Be Proved?
Intent to commit genocide can of course be proved by explicit statements made by the country’s leadership or those who commit the crime. But a state can also conceal its intent to commit genocide. The ICJ has ruled that it is possible to prove intent even without explicit statements, as intent can be inferred from actions. However, the Court set a very high threshold for making such an inference: It can only reached if crimes are committed in a systematic fashion such that there is no way of explaining them other than that an ordered plan is in place for committing genocide.
Why is South Africa Accusing Israel of Committing Genocide?
There is both a legal answer and a political answer to this question.
From a legal perspective: As noted, South Africa is accusing Israel of committing the crime of genocide so that it can force it to participate in a hearing at the ICJ. According to Article IX of the Genocide Convention, South Africa alleges Israel—as a party to the Convention—has already accepted the jurisdiction of the ICJ for any disputes regarding violations of the Convention; and in any case, it is obligated under international law to attend the hearing at the ICJ.
From a political perspective: South Africa has been a partner of the Palestinians in international activity against Israel for many years. This is partially in response to the fact that Israel cooperated with the apartheid regime in South Africa, and it also reflects South Africa’s view of Israel as a colonialist state that denies the Palestinians their right to self-determination.
South Africa’s Claims Against Israel
Intent: South Africa is basing its claims mainly on a long series of statements made by Israeli politicians and military commanders in the present and the past, which it interprets as calls to commit genocide. Recent examples include the call by Minister Amihai Eliyahu to drop an atomic bomb on Gaza, and the statements made by several politicians that “there are no uninvolved civilians” in Gaza.
Actus reus: South Africa is claiming that as part of the war in Gaza, Israel is committing violations of international law which meet the actus reus condition for the crime of genocide. These include the number of civilians killed in Gaza, the humanitarian crisis, and the extensive damage to infrastructure in Gaza City which have made the city essentially uninhabitable.
Israel’s Counter-Arguments
As a preliminary matter, Israel will likely present arguments of a more technical nature against the jurisdiction of the court and the applicability of the Genocide Convention. According to the Court's jurisprudence, these arguments have a limited chance of convincing the court not to discuss the substance of the case. Therefore, Israel main claims will likely focus on the substance of the Genocide claim:
Intent: Israel will argue that the quotations presented were taken out of context, and that in any case, those who have made such statements are not in decision-making positions. Israel’s decision-makers—the members of the war cabinet, the IDF chief of staff, and senior IDF officers—have taken pains to emphasize that Israel is fighting only against Hamas, and that it does not seek to harm Palestinian citizens.
Actus reus: Israel argues that it is acting in accordance with international law, both in terms of the war being a war of self-defense, and in terms of how the fighting itself is being conducted.
It is important to emphasize the considerable problem facing Israel regarding the issue of “incitement to commit genocide,” which, as noted, itself constitutes a crime, regardless of whether acts of genocide are actually committed. Some of the statements quoted by South Africa, and which occasionally surface in Israeli public discourse, do constitute incitement to genocide. The fact that no sanctions—criminal or political—have been imposed by Israel in response to such statements could be interpreted as a violation by Israel of its duty to prevent incitement to genocide. In this context, it is important to mention that Israel's attorney general issued a warning against calls to harm uninvolved civilians, and that some of these cases are now under review in her office.
The Significance of the Hearings on Thursday
South Africa’s petition is part of an ongoing effort by the Palestinians and several other countries to position Israel as a pariah state, making law-abiding countries wary of collaborating with it. Losing the case could place Israel in a very problematic position in the international arena.
In addition, the ICJ has the power to issue provisional orders in urgent cases. Such provisional measures can be fairly vague, such as an order for Israel not to commit genocide, or more significant, such as an order for Israel to cease fire immediately or to allow unlimited entry of humanitarian aid into Gaza. It would seem that Israel’s main focus in the proceedings is on ensuring that the measures instituted by the ICJ will not be seen as interfering with the war effort in Gaza.
What Will Happen if Israel Does Not Abide by ICJ Court Orders?
The ICJ does not have a police force or military force that can enforce its rulings. But violation of a direct Court order would be viewed in a highly negative light by many countries and would worsen Israel’s standing in the international arena. For example, it is reasonable to assume that many countries might refrain from selling weapons to Israel if it contravenes a Court order to impose a ceasefire.
Conclusion
South Africa’s case against Israel presents a considerable challenge to Israel at the current time. Israel is treating this challenge seriously and is investing sizable legal and financial resources in countering the case. To increase its chances of success, the authorities in Israel should act more forcefully against calls made by public figures from time to time which could be interpreted literally as calls for genocide. This is not only because of the case brought by South Africa, but also because such discourse undermines the principles of the State of Israel as Jewish and democratic state.