Jan. 10, 2024
By Isabel Kershner and John Eligon
Israel has categorically rejected the allegations being brought this week in the International Court of Justice by South Africa.
The Peace Palace which houses the International Court of Justice in The Hague, Netherlands. South Africa has brought a case accusing Israel of genocide against Palestinians in Gaza and is asking the court to order Israel to halt its attacks. Credit...Peter Dejong/Associated Press
The International Court of Justice, the United Nations’ highest judicial body, will begin hearings this week in a case brought by South Africa that accuses Israel of committing genocide in Gaza.
The hearings, the first step in a lengthy process should the case go forward, will be the first time that Israel has chosen to defend itself, in person, in such a setting, attesting to the gravity of the indictment and the high stakes for its international reputation and standing.
Genocide, the term first employed by a Polish lawyer of Jewish descent in 1944 to describe the Nazis’ systematic murder of about six million Jews and others based on their ethnicity, is among the most serious crimes of which a country can be accused.
In its submission to the court, South Africa cited that lawyer, Raphael Lemkin, expounding on the definition of genocide. South Africa, whose post-apartheid government has long supported the Palestinian cause, accused Israel of actions in Gaza against Hamas that are “genocidal in character.” It says Israel has killed Palestinian civilians, inflicted serious bodily and mental harm, and created for the residents of Gaza “conditions of life calculated to bring about their physical destruction.”
More than 23,000 Palestinians have been killed over the past three months, a majority of them women and children, according to health officials in Gaza. And most of the enclave’s 2.2 million residents have been displaced since the war began, increasing the danger of disease and hunger, according to international organizations.
The allegation, which Israel categorically denies, is laden with a particular significance in Israel, a country founded in the wake of the near wholesale destruction of European Jewry and that soon after became a haven for Jews expelled by the hundreds of thousands from Arab lands.
Israel, a signatory to the 1948 international Convention against Genocide, is keeping the details of its defense for the court. But Israeli leaders say South Africa’s allegations pervert the meaning of genocide and the purpose of the convention. A more fitting case, they say, could be brought against Hamas, an internationally labeled terrorist organization that is the target of Israel’s military campaign in Gaza.
A woman running to her home in Ashkelon, Israel, moments after a rocket siren was sounded during the Oct. 7 attack by Hamas. Credit...Tamir Kalifa for The New York Times
“There’s nothing more atrocious and preposterous than this claim,” President Isaac Herzog of Israel said on Tuesday. “Actually, our enemies, the Hamas, in their charter, call for the destruction and annihilation of the state of Israel, the only nation state of the Jewish people.”
Ayelet Shaked, a former Israeli justice minister, called the genocide allegations a “blood libel,” a reference to the centuries-old antisemitic trope that Jews kill non-Jewish babies to drink their blood, and asserted that the South African government was using the case to distract its own public from their country’s domestic problems.
The International Court of Justice adjudicates disputes between states, and the initial hearings in the Israel case will take place on Thursday and Friday in The Hague.
The case brings to a public forum the popular condemnation of Israel’s conduct of the war in much of the developing world. In December, the U.N. General Assembly passed a nonbinding resolution, put forth by the Arab Group and the Organization of Islamic Cooperation, calling for a cease-fire; and the Security Council passed a binding resolution, also promoted by Arab countries, calling for the delivery of more humanitarian aid.
Mourners at the funeral of multiple members of one family, who were killed in an Israeli airstrike in Khan Younis in October. Israel’s offensive in the Gaza Strip has killed more than 22,000 Palestinians. Credit...Yousef Masoud for The New York Times
South Africa filed an 84-page application to the court in December laying out its claims and citing statements by Israeli officials, which it says “constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished.”
Israelis have pointed out that some of the evidence South Africa cites is slim. Among the examples is a comment made in a television interview by an Israeli pop star, Eyal Golan, who said Israel should “erase” Gaza.
In a statement released late Tuesday, Israel’s attorney general and state prosecutor said any calls for intentional harm to civilians may amount to the criminal offense of incitement. “Currently, several such cases are being examined by Israeli law enforcement authorities,” the statement added.
South Africans have long empathized with the Palestinian people, equating their life in Gaza and under the occupation in the West Bank, with the oppression suffered under apartheid. Nelson Mandela gave explicit voice to this connection, saying in a 1997 speech, “We know too well that our freedom is incomplete without the freedom of the Palestinians.”
That sentiment is driving South Africa’s case, said Ronald Lamola, the country’s justice minister, who will lead the delegation at The Hague. “We do believe that it is important for a state like South Africa that has experienced apartheid discrimination to stand firm with the people of Palestine,” he said in an interview.
Israel, for its part, says it did not choose war but was forced into it after Hamas led a cross-border assault against it on Oct. 7. About 1,200 people, most of them civilians, were killed in the attack, according to the Israeli authorities, making it the deadliest single day in Israel’s 75-year history, and for Jews since the Holocaust. More than 100 of the 240 captives seized on Oct. 7 are still being held in Gaza.
An Israeli family grieving during a funeral for victims of Hamas’s attack in October last year. Israel says it did not choose the path of war but the incursion by Hamas forced the country into conflict. Credit...Tamir Kalifa for The New York Times
U.N. rapporteurs said in a statement on Monday that the Hamas-led rampage, which included murder, hostage-taking, rape and mutilation, could amount to war crimes and, given their scope, perhaps also crimes against humanity.
A final ruling could take years, but as an emergency provision, South Africa is calling on the court to order Israel to immediately halt its military operation.
“All that South Africa has to do to win a provisional measures order is convince the court that its charge of genocide is ‘plausible,’” said William Schabas, a former chairman of a U.N. commission of inquiry into Israel’s military operations in the Gaza Strip in 2014, who is a professor of international law at Middlesex University London.
South Africa, Professor Schabas said, had so far only set out “a skeleton of its case,” and it would be months before it gathers all of its evidence. “Only then can we really assess the full strength of the South African case,” he said.
The court’s decisions are typically binding, though it has few means of enforcing them. In 2004, the court issued a nonbinding opinion that Israel’s construction of its security barrier inside the territory of the occupied West Bank was illegal and that it should be dismantled. Twenty years later, the system of walls and fences is still standing.
Even if Israel was to comply with an injunction, Hamas, which is not bound by the laws of war, would not be compelled to similarly stop fighting.
Israel’s military insists that it is prosecuting the war in line with international law. Officials point to the millions of messages, sent by various means, telling Gaza’s civilians to evacuate to safer areas ahead of bombings, and say they are constantly working to increase the amount of aid entering Gaza.
Displaced Palestinians walking from the north of the Gaza Strip to its south in November. Israel points to its warnings to Palestinians ahead of bombing campaigns as a sign that it is abiding by international law. Credit...Samar Abu Elouf for The New York Times
The death toll in Gaza, they say, is attributable in part to the use by Hamas of residential areas and civilian structures, including schools and hospitals, to launch attacks, store weapons and hide fighters.
Rear Adm. Daniel Hagari, the chief spokesman for the military, categorically refuted the genocide accusation and said the court should instead focus on how the war started on Oct. 7. “We were the ones who were butchered,” Admiral Hagari said.
In Israel, the case is being dealt with at the highest levels. The government has appointed one of the country’s most prominent jurists, Aharon Barak, as the ad hoc judge to join the court on its behalf. (To hear the Gaza case, the court’s regular 15-judge panel will be expanded to 17, with one additional judge appointed by each side).
Mr. Barak was given the assignment even though he criticized Israel’s right-wing government last year over a planned judicial overhaul. A retired Israeli Supreme Court president, Mr. Barak is a Holocaust survivor who fled Nazi-occupied Lithuania as a boy.
Aharon Barak, a former president of Israel’s Supreme Court and a Holocaust survivor, has been tapped to represent the nation on the panel of judges in the International Court of Justice case. Credit...Avishag Shaar-Yashuv for The New York Times
Israel’s legal team at The Hague will be led by Malcolm Shaw, a British expert chosen for his experience in litigation at the World Court. The South African team will be led by John Dugard, a highly regarded scholar of international law and a former United Nations special rapporteur on human rights in the occupied Palestinian territories.
In a statement, Hamas welcomed South Africa’s decision to bring the case, and called on “all countries to submit similar files and requests to competent national and international courts against this Nazi entity,” referring to Israel.
The United States, Israel’s most important ally, denounced South Africa’s petition. John Kirby, the National Security Council spokesman, described it as “meritless, counterproductive, completely without any basis in fact whatsoever.”
While the South African government maintains that it is pursuing its case to stop a genocide, analysts say officials were more likely motivated by domestic and diplomatic political pressures.
In the two years that Russia has pursued its war in Ukraine, South Africa has vigorously resisted condemning Russia, a crucial ally. In taking that stance, South African officials often pointed to what they say is a double standard: American officials demanded support for Ukraine’s sovereignty but paid little attention to Palestinian demands, they said.
“South Africa wanted to make a very clear point — to point at these contradictions in the global, institutional, multilateral order,” said Priyal Singh, a senior researcher at the Institute for Security Studies, a think tank.
Support for the Palestinians has long been a popular rallying point in South Africa, and Mr. Singh said, politicians for the governing African National Congress are exploiting that support ahead of an important national election this year.
Patrick Kingsley, Marlise Simons and Myra Noveck contributed reporting
Isabel Kershner reported from Jerusalem and John Eligon from Johannesburg
Isabel Kershner, a correspondent in Jerusalem, has been reporting on Israeli and Palestinian politics since 1990. Her latest book is “The Land of Hope and Fear: Israel’s Battle for its Inner Soul.” More about Isabel Kershner
John Eligon is the Johannesburg bureau chief for The Times, covering a wide range of events and trends that influence and shape the lives of ordinary people across southern Africa.
Copyright 2024 The New York Times Company