SA v Israel: Five questions answered

Henry

On Friday afternoon, the International Court of Justice will issue a landmark ruling in South Africa’s charge of genocide against Israel due to that country’s actions in Gaza after an unprecedented attack by the Hamas terrorist group.

These are some of the key issues:

Will the court decide whether Israel is committing genocide?

No.

At this stage, the court is only deciding whether to impose emergency measures on Israel; in the court’s words, “provisional measures”.

A decision on whether Israel is indeed guilty of genocide in Gaza will be dealt with in the second part of the application – and this is a process that will probably last for years.

The war broke out on October 7 when Hamas launched the unprecedented attack on Israel. Almost 1,140 people died, most of them civilians, according to a survey by APF based on Israeli figures.

Israel’s merciless military assault on Gaza has claimed at least 25,900 lives; about 70% of these are women, children and young people, according to the Hamas-controlled health department.

“At this stage, South Africa does not have to prove that Israel is committing genocide,” says Juliette McIntyre, a lecturer in international law at the University of South Australia.

“They simply have to establish that there is a credible risk of genocide occurring.”

Even if the court rules against Israel, “it means there is a credible danger of genocide. Not that genocide is being committed,” she says.

What can the court do?

South Africa asked the court to impose nine orders on Israel. These include the immediate suspension of military operations and allowing more humanitarian access.

The court can make all nine orders, none of them, or make completely different orders.

“It seems likely that the court will grant some of South Africa’s requests,” says Cecily Rose, a professor of international law at Leiden University.

Israel argued that a ceasefire is unrealistic because the court can only instruct one party to do so; Hamas – on the other side of the conflict, is not part of the court proceedings.

“The court can decide that a ceasefire is established, but in my opinion it is more likely that an order is made that Israel does everything in its power to ensure proper access to food, water and humanitarian aid,” says McIntyre.

What happens next?

Seen from the court’s side, the case now moves to the “merits” phase, where it must be determined whether Israel is in fact committing genocide in Gaza.

Decisive will be whether Israel will abide by any ruling of the International Court of Justice. Prime Minister Benjamin Netanyahu has already hinted that he does not feel bound by a verdict at all.

Regardless of Israel’s reaction to the verdict, it will still have an important “ripple effect”, says McIntyre.

If the court decides there is a “risk” of genocide, “it is much more difficult for other states to maintain their support for Israel… countries may withdraw military or other support”.

The court’s rulings are binding, but there are few ways in which it can enforce them – and some countries simply ignore them completely. For example, Russia was ordered to stop its invasion of Ukraine.

The judgment nevertheless creates an “important historical record which may not currently change things on the ground, but may be essential in future negotiations under new governments”, says McIntyre.

“Finally, there is also the symbolic aspect, which within Israel’s context, is enormous.”

Why South Africa?

South Africa brought the case against Israel because both countries are signatories to the United Nations (UN) Genocide Convention; it was lifted in 1948 after the world was determined that an event like the Jewish genocide should “never again” be repeated.

His application states that Pretoria is “thoroughly aware” of the “particular weight of responsibility” in accusing Israel – of all countries – of violating the Genocide Convention.

But South Africa also argues that no attack can justify alleged violations of the convention and that Israel has “its own obligation” as a signatory to prevent genocide.

South Africa has long been an outspoken supporter of the Palestinian cause, with the ruling ANC often comparing this struggle to its own struggle for freedom.

The two countries have already suspended diplomatic ties over the issue.

What other matters are there?

The International Court of Justice rules on disputes between countries and is often confused with the International Criminal Court, which is also based in The Hague. This court deals with war crimes committed by individuals.

The criminal court’s chief prosecutor, Karim Khan, has already started an investigation into events in Gaza and has undertaken to “intensify” it.

In November, five countries, including South Africa, asked for an investigation by the International Criminal Court into the war in Gaza; Khan says his team has already collected a “significant amount” of evidence.

International legal experts say war crimes were likely committed by both camps.

The UN has also asked the International Criminal Court to investigate the legal consequences of Israel’s actions in Palestinian territories.

An advisory opinion will be given and it will not focus on the military action after October 7, when Hamas militants invaded Israel.