South Africa accused Israel at the International Court of Justice (ICJ) of actions 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.”
Both parties to a case may nominate a judge to join the deliberations. South Africa sent a representative, as did Israel, which announced that retired Supreme Court President Aharon Barak would be its appointee to the 15-judge panel. The president of the court is Judge Joan Donoghue from the United States. Other judges are from France, Germany, Australia, India, Slovakia, Jamaica, Japan, Brazil, Russia, China, Morocco, Somalia, Lebanon, and Uganda. Decisions are made by a simple majority of the presiding judges.
The choice of Barak was ironic since the government of Benjamin Netanyahu had spent the previous year attacking his legal decisions as a Supreme Court judge to justify reforming the judiciary. While most Israeli political leaders praised the choice some members of the government were critical.
State Department spokesman Matt Miller said:
Irwin Cotler, former Minister of Justice and Attorney General of Canada, said the proceedings were “inverting reality and effectively undermining international justice and the rules-based international order” and a “cynical weaponization of international law.” He acknowledged the “humanitarian tragedy” in Gaza but clarified that “Israel’s actions in Gaza are impossible to reconcile with the intention to commit genocide — a necessary element of the crime. Israel consistently seeks to minimize harm to civilians using measures including leaflets, messages and phone calls to urge civilians to evacuate targeted areas, creating humanitarian zones and corridors, and facilitating humanitarian aid.”
In his opening statement to the tribunal, Tal Becker concluded:
On January 26, 2024, the Court issued a decision.
First, it found that it had jurisdiction because South Africa and Israel are parties to the Genocide Convention (Hamas as a non-state actor is not). Second, it ruled that the Palestinian people were a distinct group within the meaning of the Genocide Convention and entitled to protection. Third, it said some of Israel’s actions could fall within the terms of the Genocide Convention and that it must “take all measures within its power” to prevent genocide against the Palestinians, including avoiding the killing or injuring of civilians and preventing conditions that would lead to such harm. Israel was also instructed to prevent “the expulsion and forced displacement” of Gazans and deprivation of their access to food, water, medical supplies, and other humanitarian assistance. It further ordered that the state prevent and punish incitement to genocide. Israel was asked to report within one month on its compliance with the Court’s order.
The Court did not find that Israel had violated or was violating the Genocide Convention, and Israel argued it was already taking the steps outlined by the Court.
To rule against Israel, the South African case was supposed to prove that Israel had the intent to commit suicide. It partly relied on statements by Israeli officials, some taken out of context and others made by people who had no authority to determine policy regarding the prosecution of the war.
Nevertheless, the Court found some of South Africa’s claims “plausible” and, therefore, will continue to probe Israel’s actions. Such investigations have typically taken years to conclude. In the meantime, the decision is likely to damage Israel’s image and provide ammunition for its enemies to further demonize it.
Prime Minister Benjamin Netanyahu rejected the ruling. calling it a “vile attempt to deny Israel this fundamental right [of self-defense]” and “blatant discrimination against the Jewish state.” He said the charge of genocide against Israel was “not only false, it’s outrageous,” and that “decent people everywhere should reject it.”
Nicholas Rostow noted, “There are no direct enforcement provisions for ICJ decisions, although lack of compliance could lead the parties to turn to the UN Security Council. In this specific case, however, the U.S. would almost certainly veto any resolution against Israel.”
On February 16, 2024, the ICJ rejected South Africa’s request for urgent measures to safeguard Rafah from the expected Israeli offensive.
Sources: Lazar Berman, Michael Horovitz, and Jeremy Sharon, “Israel tasks ex-Supreme Court chief Aharon Barak to serve at Hague genocide hearings,” Times of Israel, (January 7, 2024).
“This Week’s International Court of Justice Hearings,” Press Statement, U.S. Department of State, (January 10, 2024).
Irwin Cotler, “Irwin Cotler: South Africa is inverting reality by accusing Israel of genocide,” National Post, (January 10, 2024).
Jeremy Sharon, “ICJ tells Israel to ‘prevent genocide’ in Gaza, rejects ordering immediate ceasefire,” Times of Israel, (January 26, 2024).
Nicholas Rostow, “Legal Briefing: Israel and the ICJ,” inSIGHT, (January 26, 2024).
“ICJ Rejects South African Requestor Urgent Measures to Safeguard Rafah From Israeli Offensive,” AP, (February 16, 2024).