by Anna Violante
On 29 December, South Africa submitted an 84-page document to the International Court of Justice accusing Israel of violating its obligations under the 1948 Genocide Convention in its crackdown in Gaza. The convention defines genocide as acts intended to destroy a national, ethnic, racial or religious group. South Africa’s case requires proof of both intent and action taken by the Israeli government. The International Court of Justice, which hears disputes between states, can order interim measures such as halting military operations and allowing in humanitarian aid while awaiting a verdict on genocide, which can take years. Cases currently pending at the ICJ are Gambia v Myanmar and Ukraine v Russia.
Prof Petrelli, why did South Africa choose the crime of genocide over ethnic cleansing and the ICJ over the ICC for prosecution?
“South Africa is taking Israel to the ICJ for genocide because both countries are signatories to the Genocide Convention and because of the ICJ’s role in inter-state disputes. South Africa claims that Israel’s actions in Gaza have a ‘genocidal character’ and are aimed at the destruction of the Palestinian people. This is in line with South Africa’s historic anti-discrimination stance. Israel denies genocide, citing national security. South Africa’s main intention is to persuade the ICJ to quickly consider interim measures, in priority a ceasefire.”
How does this case affect the national identity of both countries, given their respective histories?
“The case has significant implications for the national identities of both Countries. For Israel, founded in the aftermath of the Holocaust, allegations of genocide raise serious concerns about its moral and historical standing. Conversely, South Africa, with its history of anti-apartheid struggle and support for the Palestinian cause, sees the case as an extension of its commitment to human rights and international justice.”
How is the International Court of Justice (ICJ) dealing with South Africa’s case against Israel, and what are its powers and limitations in resolving conflicts?
“The ICJ is dealing with the technical and legal aspects of the case. It is currently focusing on provisional measures and hasn’t ruled on genocide. The legal doctrine of ‘erga omnes partes’, which allows a state to enforce universal rights, is crucial. Unlike the UN Security Council, the ICJ can intervene when the Genocide Convention is involved. Decisions depend on the plausibility of the allegations, and if the case proceeds, it could take years to reach a final verdict.”
What are the possible directions the Court could take?
“Predicting the ICJ’s specific decision is difficult, but key factors include the legal standard for genocide under the Genocide Convention. The Court has historically required clear and convincing evidence of genocidal intent. Israel’s arguments on self-defence and compliance with humanitarian law are crucial (after South Africa’s genocide file, the Israeli government released photos of the 7 October massacre for the first time to assert its right to self-defence. Ed). The carnage in Gaza is obvious, but the intent is harder to pin down as some political leaders uttered words to exterminate the Palestinians of Gaza, but they were not part of the executive power. The decision may take into account the international political context and the dynamics within the UN Security Council.”
What legal and political consequences could this case have (depending on the legal outcome)?
“Legally, the case underscores state accountability to international norms, particularly the prohibition of genocide. Although the ICJ has no coercive powers, an unfavourable ruling could affect Israel’s global standing. Politically, it could incur reputational costs, influence public opinion and exert pressure. The ICJ could impose provisional measures, potentially isolating Israel, with global reactions affecting the international importance of the case.”
Can Israel succeed in blocking the trial?
“Israel’s success in blocking the case is uncertain. While the ICJ’s rulings are binding, enforcement unfortunately depends on the UN Security Council, where the US, a supporter of Israel, has veto power, which could affect compliance.”
What is the impact of this case on public opinion and media coverage, and how might this affect the perception and resolution of the case?
“Media coverage and public opinion are crucial in shaping the narrative of the case. The media’s emphasis on allegations of genocide has raised global awareness of Israel’s actions in Gaza, influencing public opinion and government responses around the world. This polarisation is central to the resolution of the case and reflects the evolving political dynamics in the region.”
How does the case brought by South Africa against Israel in the ICJ affect international relations, especially between Israel, South Africa and the United States?
“Beyond its legal significance, the case marks a pivotal moment in shaping global perceptions and interactions. Given South Africa’s commitment to human rights, it extends its foreign policy and moral responsibilities. Israel, which denies the allegations, faces diplomatic challenges and potentially strained relations. The US, a key ally, is walking a fine line between support for Israel and human rights concerns.”
Cover photo ©BERMIX STUDIO/Shutterstock.com