By Emre Basaran
ISTANBUL (AA) – Thursday will mark the start of a high-stakes legal battle at the UN’s International Court of Justice (ICJ), where South Africa has filed a case against Israel, accusing it of committing genocide in its ongoing deadly assault on the Gaza Strip.
Hearings will begin in The Hague with South Africa laying out its arguments explaining how Israel has violated the 1948 Genocide Convention during its military campaign in Gaza, which has killed more than 23,200 Palestinians and injured over 59,100 others, mostly women and children.
- What does the convention say?
The Convention on the Prevention and Punishment of the Crime of Genocide, or Genocide Convention for short, is an international treaty that criminalizes genocide and obligates state parties to work for its prohibition.
The convention was the first legal instrument to codify and recognize genocide as a crime against humanity. It was also the first human rights treaty unanimously adopted by the UN General Assembly, which happened on Dec. 9, 1948.
It entered into force on Jan. 12, 1951 and has 153 signatories as of April 2022, according to the UN.
The convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
“Killing members of a national, racial, ethnical or religious group, causing serious bodily or mental harm to members of it, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within it and forcibly transferring children of the group to another group” constitute genocide when “committed with intent to destroy, in whole or in part,” according to the convention.
Both Israel and South Africa are parties to the convention, under which the ICJ has the power to rule on disputes over the treaty.
- What does South Africa’s case assert?
As a country that suffered and overcame apartheid, South Africa has long been opposed to Israel’s practices in the illegally blockaded Gaza Strip and the West Bank, which also remains under Israeli occupation.
In its 84-page case, South Africa has asked the ICJ for urgent steps to stop Israel from committing more crimes in Gaza.
The suit also provides details on how Israel failed to deliver water, food, medicine, fuel, shelter and other types of humanitarian assistance to Gaza since it launched the devastating assault on Gaza last October.
It brings to light the impact of Israel’s indiscriminate aerial bombardment of Gaza, with has left large swaths of the besieged territory in ruins and displaced millions of people.
“The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip,” reads the South African filing.
Israel’s actions include “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction,” it reads.
“The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention,” the document adds.
It says Israel has also “violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.”
It asks the ICJ to impose emergency measures to stop Israel’s aggression.
- How will the case proceed?
The hearings on Jan. 11-12 will not feature any witness testimony or cross-examinations.
Both South Africa and Israel will have two hours each on separate days to make their case, in which they will bring forth their arguments prepared by their respective lawyers under the supervision of state officials.
As with many other trials, South Africa’s case is expected to take years before a final decision is reached. The request for emergency measures is a first step in the otherwise lengthy lawsuit and is meant as a rapid move to halt Israel’s ongoing aggression.
“Provisional measures,” as emergency measures are officially called, function like restraining orders, aimed at preventing disputes while the case continues.
This week’s hearings are expected to only focus on emergency measures, with South Africa’s charge that Israel is committing genocide in Gaza likely to be evaluated years from now.
South Africa has asked the ICJ to order Israel to cease its campaign in Gaza within the scope of the emergency measures, and the court is expected to decide on it in the weeks following the hearings.
Though the court’s rulings are legally binding and without appeal, the ICJ has no way of actually enforcing them.
Nevertheless, a possible ruling ordering Israel to suspend its military campaign in Gaza or a later one asserting that it has indeed committed genocide in Gaza could seriously hurt the country’s global reputation, in addition to setting a legal precedent that could damage Israeli interests for years to come.
According to legal experts, South Africa can take the ICJ order to the UN Security Council and General Assembly for enforcement, where there can be various actions taken against Israel, from Israel’s possible suspension to imposition of economic sanctions.
If the ICJ rules that it has “prima facie jurisdiction” – the test of first impression in international adjudication – in South Africa’s case that initially seeks emergency measures, the case will move forward even if the judges strike them down in a ruling.
In such a case, Israel would be granted another opportunity to legally assert that the ICJ has no legal basis to investigate South Africa’s claim and to file a “preliminary objection,” a formal step by which a respondent contends the case should be dealt with in a separate manner, before any other issue in the proceedings is looked into.
The preliminary objection can only deal with issues of jurisdiction.
Should the court reject it, the judges could finally investigate the case in further public trials, which can take several years to finalize.