On December 30, South Africa appealed to the International Court of Justice in The Hague (ICJ), alleging that Israel is committing genocide in the Gaza Strip and demanding interim measures to stop the fighting immediately. Though accusations of genocide have been leveled against Israel in the past, they have gained momentum since the start of the war in Gaza. The Convention on the Prevention and Punishment of Genocide from 1948 (the Genocide Convention), in which South Africa and Israel – like most countries of the world – are members, gives the Court jurisdiction to hear claims concerning its application. A separate proceeding is already underway at the Court stemming from a resolution by the UN General Assembly in December 2022 requesting an advisory opinion on the legality of Israeli occupation.
Genocide is considered the most serious crime under international law. The Genocide Convention establishes two basic elements for genocide: intent "to destroy, in whole or in part, a national, ethnical, racial or religious group,” and acts committed to achieve this goal. According to the convention, achievement of the goals of extermination is not a prerequisite, and acts of “direct and public incitement to commit genocide;" "attempt to commit genocide;" and "complicity in genocide” are also punishable.
South Africa alleges that the extent of the widespread killing and harming of civilians, including many women and children, the mass expulsion of Palestinians from their homes, and the creation of conditions of extreme deprivation, are all actions aimed at bringing about the genocide of the Palestinians in the Gaza Strip by Israel. South Africa bases the intention to commit genocide on various statements by government members and other public figures, including remarks by the Prime Minister invoking the Biblical reference to Amalek; by the Minister of Defense on the imposition of a total blockade and the removal of any restriction on the fighting forces; by the Minister of National Security, who declared that anyone who supports Hamas must be destroyed; and by many other officials and advisers who said that there are no innocent bystanders in Gaza and spoke in favor of Gaza’s destruction.
Statements by the Court that imply that Israel is committing genocide will serve as important ammunition in the legal campaign waged against Israel in the international arena. The purpose of this campaign is not only to influence “the day after the war” through the prosecution of Israeli officials and the initiation of sanctions against Israel, but already now to erode the practical support that Israel receives from its allies. Tools at hand include pressure on governments, and in particular the US administration in an election year, to reduce support for Israel by portraying it as committing genocide.
Israel has good arguments to refute the serious accusations, and it is hoped that the judges of the Court, who are leading jurists, will apply the law in a professional and fair manner. However, the risk inherent in the procedure should not be underestimated. Experience shows that the judges may ignore the difficult security reality that engulfs Israel, as happened in the 2004 opinion regarding the legality of the security barrier (the so-called separation wall).
On December 30, South Africa appealed to the International Court of Justice in The Hague (ICJ), alleging that Israel is committing genocide in the Gaza Strip and demanding interim measures to stop the fighting immediately. Though accusations of genocide have been leveled against Israel in the past, they have gained momentum since the start of the war in Gaza. The Convention on the Prevention and Punishment of Genocide from 1948 (the Genocide Convention), in which South Africa and Israel – like most countries of the world – are members, gives the Court jurisdiction to hear claims concerning its application. A separate proceeding is already underway at the Court stemming from a resolution by the UN General Assembly in December 2022 requesting an advisory opinion on the legality of Israeli occupation.
Genocide is considered the most serious crime under international law. The Genocide Convention establishes two basic elements for genocide: intent "to destroy, in whole or in part, a national, ethnical, racial or religious group,” and acts committed to achieve this goal. According to the convention, achievement of the goals of extermination is not a prerequisite, and acts of “direct and public incitement to commit genocide;" "attempt to commit genocide;" and "complicity in genocide” are also punishable.
South Africa alleges that the extent of the widespread killing and harming of civilians, including many women and children, the mass expulsion of Palestinians from their homes, and the creation of conditions of extreme deprivation, are all actions aimed at bringing about the genocide of the Palestinians in the Gaza Strip by Israel. South Africa bases the intention to commit genocide on various statements by government members and other public figures, including remarks by the Prime Minister invoking the Biblical reference to Amalek; by the Minister of Defense on the imposition of a total blockade and the removal of any restriction on the fighting forces; by the Minister of National Security, who declared that anyone who supports Hamas must be destroyed; and by many other officials and advisers who said that there are no innocent bystanders in Gaza and spoke in favor of Gaza’s destruction.
Statements by the Court that imply that Israel is committing genocide will serve as important ammunition in the legal campaign waged against Israel in the international arena. The purpose of this campaign is not only to influence “the day after the war” through the prosecution of Israeli officials and the initiation of sanctions against Israel, but already now to erode the practical support that Israel receives from its allies. Tools at hand include pressure on governments, and in particular the US administration in an election year, to reduce support for Israel by portraying it as committing genocide.
Israel has good arguments to refute the serious accusations, and it is hoped that the judges of the Court, who are leading jurists, will apply the law in a professional and fair manner. However, the risk inherent in the procedure should not be underestimated. Experience shows that the judges may ignore the difficult security reality that engulfs Israel, as happened in the 2004 opinion regarding the legality of the security barrier (the so-called separation wall).