Orders of battle drawn up for legal battle between SA, Israel

Henry

The South African government set the stage for a ground-breaking legal battle in the International Court of Justice when it accused Israel of committing acts of genocide in the Gaza Strip.

This is one of at least three cases that Israel faces in the midst of ongoing violence in this area.

More than 22,000 people, most of them civilians, have died in Gaza since Hamas, a Palestinian terrorist group, attacked Israel on October 7 last year and triggered a war.

Israel has launched several deadly attacks in response and says the war will continue until Hamas and its structures are completely wiped out.

The case between South Africa and Israel will be heard this week by more than 15 judges in the United Nations’ highest court in The Hague.

What can the court do?

Among other things, South Africa is asking the court to urgently introduce emergency measures to stop the violence. This means that the court does not necessarily have to agree with South Africa’s substantive case. It must only assess whether there is a risk of “irreparable violation” of the rights of Palestinians.

“At the interim measure level of the case, the court will not make a decision that genocide is unfolding in Gaza,” said Cecily Rose, assistant professor of public law at Leiden University.

“The court will only assess whether there is a risk of irreparable violation of rights in terms of the Genocide Convention, specifically regarding the rights of Palestinians in Gaza, who must be protected against any acts that could threaten their survival as a population group,” explains Rose.

South Africa asked the court to issue several orders, including ordering Israel to immediately halt its Gaza offensive, halt forced deportations and allow humanitarian access.

The court of justice can grant all these measures as requested by South Africa, or reject the country’s application in its entirety.

The court can even make a completely different decision, or decide that it is not empowered to make a judgment.

What then?

After the court has decided whether or not to grant interim measures, the judges will assess the merits of the wider case – namely South Africa’s complaint that Israel is violating the UN Genocide Convention.

The decisions of the court of justice, also known as the World Court, are binding on countries and cannot be appealed.

However, the court has no way to enforce its decisions and is sometimes just ignored completely.

After all, this court ordered Russia to stop its actions a month after it invaded Ukraine. Almost two years later, this war continues.

Celine Bardet, international law and war crimes expert, says any decision will be on a “symbolic level”.

“It will remind the world that states are also accountable, and that is important,” she told AFP.

“This may also allow other states to take steps based on this decision – including the introduction of sanctions.”

How long before decision?

The International Court of Justice is not known for lightning judgments. However, applications for urgent interim measures should be given priority and judgment in this case should be delivered within weeks.

As for the broader case against Israel, a decision may still take years.

Why South Africa?

South Africa brought the case against Israel because both countries are signatories to the UN Genocide Convention of 1948. This convention was drawn up after the world undertook that there would never be a repeat of the Jewish genocide like during the Second World War.

South Africa argues that Israel violates this convention and that it is its responsibility as a signatory to hang Israel’s actions on the big bell to stop another genocide.

The ANC-controlled government has long been an open supporter of Palestine and its people, with the ANC regularly making comparisons to apartheid in South Africa.

South Africa and Israel have already suspended diplomatic ties over this issue.

Other matters

The International Court of Justice’s decision on disputes between countries is often confused with the International Criminal Court, which is also located in The Hague. The International Criminal Court prosecutes individuals for war crimes.

The criminal court’s chief prosecutor, Karim Kham, is currently investigating the events in Gaza and has pledged to intensify his investigation.

Five countries, including South Africa, already requested the criminal court in November to investigate events in Gaza. According to Khan, a wealth of evidence has already been collected.

International legal experts told AFP that war crimes were likely committed by Israel and Hamas.