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What you need to know about South Africa’s genocide case against Israel at the ICJ

The International Court of Justice begins hearing arguments on Thursday in a case that could damage Israel’s reputation amongst allies
Palestinians in Rafah in the southern Gaza Strip mourn relatives killed during Israeli bombardment, on 10 January (AFP)

The International Court of Justice (ICJ) in the Hague will hold hearings on Thursday and Friday in response to South Africa's accusation of genocide against Israel.

More than 23,000 Palestinians have been killed in the ongoing war on Gaza, including more than 9,000 children.

South Africa wants an emergency order calling on Israel to suspend its military campaign, which it launched after an attack by Hamas-led Palestinian fighters on 7 October, which killed 1,140 people, according to Israeli officials.

The state filed the lawsuit at the end of December, citing statements made by Israeli public officials and the actions of its military.

It is the first time Israel is being tried under the United Nations’ Genocide Convention, which was drawn up after the Second World War in light of the atrocities committed against Jews and other persecuted minorities during the Holocaust.

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While any ruling is unenforceable, a ruling against Israel carries enormous symbolic significance.

Here Middle East Eye answers some commonly asked questions about the case.

So what is the ICJ? 

The ICJ is the UN’s top court, established in 1945, which deals with disputes between countries and provides advisory opinions.

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It has 15 judges who are elected for nine-year terms by the UN General Assembly and Security Council.

The court can be expanded with the addition of a judge from each side of the case, in this case, South Africa and Israel. 

South Africa has appointed Dikgang Moseneke, the country’s former deputy chief justice, and Israel has named Aharon Barak, ex-president of the country’s Supreme Court.

The current judges at the ICJ are from the US; Russia; China; Slovakia; MoroccoLebanonIndiaFranceSomalia; Jamaica; Japan; Germany; Australia; Uganda; and Brazil.

What is the case that South Africa has brought against Israel?

In an 84-page application to the ICJ, South Africa said Israel's actions in Gaza were "genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group".

Israel has rejected the filing, calling it "blood libel" -  a reference to antisemitic lies that originated in the Middle Ages, which claimed that Jews murdered Christian boys to use their blood for religious rituals.

Experts have called the application a very serious and well-researched case brought by South Africa.

"Against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination, Israel, since 7 October 2023 in particular, has failed to prevent genocide," the application says.

Is the court political? 

In theory no. However, in practice, judges are selected by their states of origin and those are political choices.

Academic research on the biases of the court suggests that “judges vote for their home states about 90 percent of the time. When their home states are not involved, judges vote for states that are similar to their home states - along the dimensions of wealth, culture, and political regime. Judges also may favour the strategic partners of their home states.”

Judges, in their rulings, are motivated by more than just the law, the study found.

The US, German and French governments, who each have a judge on the court, have been staunch supporters of Israel’s campaign of destruction in Gaza - giving it not only political cover but also in the case of Germany and the US, weapons. 

Slovakia, Morocco, India, Jamaica, Japan, Australia and Uganda are also all close American allies - whose vote might be swayed by backroom deals.  

Why haven’t Arab countries initiated proceedings against Israel? 

When Israel accepted the jurisdiction of the ICJ, it said that it would not comply with applications from states that do not “recognize Israel or which refuses to establish or to maintain normal diplomatic relations with Israel”.

Only one Arab country, Jordan, has backed the ICJ petition by South Africa.

Egypt’s ex-interim vice president and former director of the International Atomic Energy Agency, Mohamed ElBaradei, said the fact that Arab states refrained from joining the ICJ proceedings against Israel did not represent their people.

In a post that ElBaradei shared on X, he described the Arab countries’ abstention as “a stain of shame that cannot be erased”.

Egypt, Morocco and the United Arab Emirates recognise Israel and are party to the Genocide Convention but have not made supporting statements to the ICJ. 

Who else backed South Africa's case at the ICJ?

The Organisation of Islamic Cooperation (OIC), a 57-member bloc that includes Saudi Arabia, Iran, Pakistan and Morocco, voiced its support for the case on 30 December.

Malaysia, Turkey and Jordan have all backed South Africa's case by making supporting submissions to the ICJ. 

Bolivia also backed the case, becoming the first Latin American country to do so.

What is the legal definition of genocide?

When it comes to the issue of genocide, international law recognises the definition laid out in Article II of the UN's Genocide Convention and the Rome Statute of the International Criminal Court.

This definition, accepted by more than 130 countries including the US, Germany, France, and the UK, states that genocide means acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".

Both Israel and South Africa are parties to the Genocide Convention, meaning that they are obligated to "take measures to prevent and to punish the crime of genocide", such as enacting legislation or punishing those deemed guilty of the crime.

What significance will a ruling have?

Israel was a founding member of the ICJ in the 1950s, following the murder of six million Jews by Germany during the Second World War. Israel defending itself from accusations of genocide at the same court is likely to have tremendous symbolism.

The Polish-Jewish lawyer Raphael Lemkin coined the word genocide in 1944 and lobbied tirelessly for its inclusion as a crime under international law. His efforts paid off when, in 1948, the United Nations approved the Convention on the Prevention and Punishment of Genocide.

The Genocide Convention to which Israel is a signatory was created because of the Holocaust. Now Israel is having to defend itself against such accusations.

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