When will ICJ rule on South Africa’s genocide case against Israel?

By Semir Sejfovic

SARAJEVO, Bosnia and Herzegovina (AA) – The death toll in the Gaza Strip continues to mount by the day as the world awaits a decision from the International Court of Justice (ICJ) in South Africa’s genocide case against Israel.

Around 24,500 Palestinians have now been killed in Israeli attacks, with more than 61,500 injured. Millions more displaced people are living through what UN experts said again on Wednesday is an “unfolding genocide,” warning that “Gazans now make up 80% of all people facing famine or catastrophic hunger worldwide.”

This death and destruction inflicted on Gaza by Israel since Oct. 7 is precisely what South Africa has asked the ICJ to stop, putting in a special emergency request for provisional measures to halt the deadly Israeli campaign.

When the hearing concluded on Jan. 12, the ICJ put out a statement saying that its judges will now begin deliberations and their decision will be delivered at “a public sitting, the date of which will be announced in due course.”

Speaking to Anadolu, Tiersisto Mariniello, an Italian lawyer who was at The Hague for the hearing, said the decision on South Africa’s request for provisional measures “will come early because this is what the procedure requires.”

“We are talking about an urgent procedure. Provisional measure means priority over all the other cases the ICJ is dealing with,” said Mariniello, who is also part of the legal team representing Gaza victims at the International Criminal Court (ICC).

“We have had cases at the ICJ related to provisional measures in which the court has decided in eight days. So, I think that the decision could be expected in February, if not before.”

Another factor, according to Mariniello, is that “some of the judges are going to be replaced in February because of the natural end of their mandate.”

There are currently 15 judges on the case – from Australia, Brazil, China, France, Germany, India, Jamaica, Japan, Lebanon, Morocco, Russia, Slovakia, Somalia, Uganda, and the US – along with one ad hoc judge each from South Africa and Israel.

The judges from Jamaica, Morocco, Russia and the US are leaving next month, and will be replaced by others judges from Mexico, Romania, South Africa and the US.

“I personally, without speculating too much, believe that the decision will be issued before the replacement of the judges,” said Mariniello.

Then there is the potential intervention in the case “by third-state parties … as announced by Germany, for instance,” he continued.

“In this regard, the question is what is the court going to do? Are they going to accept submissions from them, inviting them to present their hearings? We will see,” he said.

“This is up to the judges now to decide in this relation.”

- Assessing the arguments

The charges South Africa laid out against Israel at the ICJ focused on five main “genocidal acts” – the mass killing of Palestinians, infliction of serious mental and bodily harm, forced displacement and blockade on essential supplies, complete destruction of Gaza’s healthcare system, and preventing births in Gaza by blocking life-saving medical treatment and aid.

Israel’s response was centered on its right to self-defense against Hamas, denying that it has “genocidal intent,” asserting it has been trying to “minimize” civilian harm, and questioning the ICJ’s jurisdiction to handle the case.

“The South African submission and arguments are very, very compelling and persuasive,” said Mariniello.

“The application is solid and provides quite strong evidence in relation to all the elements of genocide.”

One particularly important point was how the South African showed the statements given by Israeli political and military leaders, all of which have been “typical genocidal statements,” he said.

“The Israeli defense tried to underestimate the statements … while the South Africans showed clearly how these statements received a concrete and effective implementation in Gaza,” he explained.

- Double standards

Mariniello, who is involved in cases on behalf of Gaza victims at the ICC, was highly critical of the ICC’s lack of commitment when it comes to Palestine.

“I don’t think anyone can deny what we can call the double standards when it comes to the way in which Palestine and Palestinian victims have been treated by the international community, compared to other situations,” he said, citing as an example the urgency shown by the ICC on the Ukraine war.

“There have never been any statements, nor had any (ICC) investigator ever visited Israel or Palestine before December 2023. The Palestine investigation was receiving the smallest budget among all the active investigations before the ICC; one-fourth of the Ukraine budget, which gives you an idea of which is a priority for the court.”

While the ICC seems to have changed its approach a bit during the current conflict, with the current prosecutor, Karim Khan, visiting Rafah and “showing an interest in this investigation,” there are still many clear problems in its attitude, said Mariniello.

Even when Khan has spoken about the issue, “he never mentioned the context in which the Gaza war is taking place” and failed to link settler violence to “any state policy,” he said.

“So, the concern is that these double standards are going to continue to characterize future investigations as well,” he added.