Genocide Case against Israel at World Court, Daily Brief January 10, 2024

Tomorrow will be an important day for the government of Israel and the people of Palestine, as well as for the history of international justice. The world’s highest court will begin hearings on accusations of genocide in Gaza.

It’s critical to realize what this case is – and what it is not – to understand where it might lead and what impacts it may have over the coming weeks, months, and years. Let me run through the basics, step by step.

On December 29, South Africa’s government filed a case with the International Court of Justice (ICJ) alleging that, by atrocities against the Palestinian people after October 7, Israel is violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The government of Israel has said it would be represented at the ICJ to oppose the allegations.

The ICJ is an independent court based in The Hague charged with settling international legal disputes between states. This is not the International Criminal Court (the ICC, also based in The Hague), which can deal with individual responsibility for atrocity crimes. The ICJ addresses issues that are one state against another, and this case seeks a legal determination of state responsibility for genocide.

The convention in question, often just called “the Genocide Convention,” is an international treaty that Israel, South Africa, and most other countries have agreed to. It defines genocide as acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

South Africa contends Israel has violated the Genocide Convention by committing genocide against Palestinians in Gaza, and by failing to prevent it. This, South Africa says, includes not holding senior Israeli officials and others accountable for their direct and public incitement to genocide. 

The South African application to the ICJ says Israel is killing Palestinians in Gaza in large numbers, causing them serious bodily and mental harm, imposing measures intended to prevent Palestinian births, and inflicting conditions of life calculated to bring about the destruction of Palestinians as a group.

South Africa cites expulsions and mass displacement; deprivation of access to adequate food and water, medical care, shelter, clothes, hygiene, and sanitation; and the destruction of the fabric of Palestinian life in Gaza.

South Africa further contends the “acts of genocide” should be placed in “the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”

These are obviously huge, complex issues, so don’t expect a quick decision. This case – and the determination one way or the other regarding genocide – could take years to reach a final ruling.

However, South Africa has asked the court to order what are called “provisional measures” and “as a matter of extreme urgency” to protect the Palestinian people in Gaza from further harm and ensure Israel’s compliance with the Genocide Convention. South Africa says Palestinians in Gaza are in “urgent and severe need of the Court’s protection.”

It’s this immediate request for provisional measures that will be the subject of the hearings on January 11 and 12.

The specific provisional measures South Africa is seeking include an immediate suspension of Israel’s military operations in Gaza and measures to prevent the destruction and ensure the preservation of evidence related to the ICJ case. This would include giving access to Gaza for fact-finding missions, international mandates, and other bodies.

South Africa also asked the court to require Israel to report to it on steps taken to carry out any provisional measures order within a week of its issuance and then at regular intervals until the court issues its final ruling. In its oral arguments tomorrow, South Africa could specifically ask the ICJ to make Israel’s reports public.

The ICJ’s decision on this urgent request for provisional measures could come relatively quickly – maybe in a week or a month.

However, governments don’t have to wait even that long. Right now, Palestinians in Gaza are facing catastrophic living conditions as a result of war crimes carried out by Israeli authorities. Leaders around the world can, and should, act immediately.

As my colleague and expert Balkees Jarrah asks: “How many more alarm bells have to ring and how many more civilians must unlawfully suffer or be killed before governments take action?”