Ina Fassbender Agence France-Presse Protesters gathered in Dortmund, Germany, on October 28 to call for a ceasefire in the war between Israel and Hamas.
- Middle East
The legal proceedings will begin far from the battlefield, in The Hague, Netherlands, but they could deal a severe blow to Israel's reputation and even force the country to change its military strategy in the Gaza Strip.
It is in fact on Thursday that the International Court of Justice (ICJ), the highest judicial body of the United Nations (UN), will examine the request filed by South Africa on December 29, accusing Israel of genocide in its ongoing military campaign against Hamas. Israel's strikes follow the attack carried out by the terrorist group on Israeli territory on October 7. The assault was described as a “pogrom” by Israel and many of its international allies.
But what is Pretoria really seeking with this trial ? And how the decision of the 15 ICJ judges could change the trajectory of the Israeli response against Hamas ? Explanations.
What does South Africa argue before the International Court of Justice ?
In a substantial 84-page document, Pretoria accuses Tel Aviv of genocide against the Palestinian people and attempts to prove through its arguments that the military response launched against Gaza goes beyond self-defense and seeks above all to destroy the inhabitants of the enclave, “as part of the larger Palestinian national, racial and ethnic group,” the petition summarizes.
South Africa has put its best lawyers on the case, including John Dugard, an expert in international law and former UN special rapporteur on human rights in Gaza and the West Bank. Mr. Dugard claimed in 2019 that Israel was reproducing in “occupied Palestine an apartheid regime against the Palestinians” characteristic of that imposed on the black population of South Africa in the last century, with “acts of torture and brutalities surpassing the worst practices of the South African security apparatus” of the time, he wrote.
Since the start of the new conflict between Israelis and Palestinians, “Israel's conduct […] towards the Palestinians in Gaza constitutes a violation of its obligations under the  Convention of the UN] on genocide,” the document continues. South Africa's approach is partly based on the ICJ judgment handed down in 2020 against Myanmar. The court then ordered the Southeast Asian country to “take all measures in its power” to protect its Rohingya ethnic minority population from genocide, after a complaint filed by Gambia.
How long can this legal process last ?
The entire case is likely to drag on for several years before reaching a court decision. But an interim measure could however be pronounced more quickly by the ICJ, even within a few weeks.
The intention to commit genocide, however, remains the most difficult element to determine, under the Genocide Convention, ratified by 153 countries, including Israel. According to the definition, this includes acts aimed at killing members of a group, causing them serious physical or mental harm, destroying their living conditions to bring about their destruction, preventing them from giving birth or forcibly transferring their children to other groups.
According to the Hamas health ministry, more than 23,000 Palestinians have been killed by Israeli military interventions in the 13 and a half weeks of conflict following the October 7 attack. More than 85% of Palestinians in Gaza have taken the route of exile on orders from the Israeli army. According to several independent experts, up to 40% of housing in Gaza has already been damaged or destroyed by the Israeli army. Separately, the UN has already declared that famine threatens 40% of Gaza's population due to the limited humanitarian aid arriving in the territory.
What did Israel say about this legal procedure launched by South Africa ?
On Tuesday, Israeli President Isaac Herzog declared that “there was nothing more atrocious and absurd” than this lawsuit filed before the International Court of Justice (ICJ) accusing his country of genocidal actions against Palestinians in the Gaza War.
The case is taken very seriously by Tel Aviv, which has decided to send its best lawyers to the Netherlands to orchestrate its defense. This puts an end to an old policy of the country which for several decades has consisted of boycotting the highest court of the UN and its 15 judges.
Last week, Israel's spokesperson, Eylon Levy, reaffirmed his country's right to self-defense in a new framework where “innovative measures” are being adopted to reduce civilian losses.
“We have made it clear, in words and deeds, that we are targeting the monsters of October 7 by innovating in accordance with international law, on the principles of proportionality, precaution and distinction, and this, in the context of a counter-terrorism battlefield that no army has faced before,” he said.
The risk of a provisional measure against Israel is high, according to past decisions of the ICJ, which increasingly favors this type of request. In the last 10 years, it has decreed in 11 cases, compared to 10 in the first 50 years of the existence of this international court.
An interim measure from the ICJ would then be binding and would in theory force a freezing of the conflict so as to guarantee the integrity of a future final judgment. It also has a high potential to damage the credibility and reputation of Israel, but also of its current coalition government led by Benjamin Netanyahu. He and several members of his government are accused by South Africa of having increased direct and public statements inciting “to commit genocide”. Israel's prime minister has threatened to make Gaza “permanently uninhabitable” as his far-right ministers Bezalel Smotrich and Itamar Ben-Gvir called for Palestinians to be resettled outside the Gaza enclave.
Remains that even if the Court's decision is binding, it could easily be ignored by Tel Aviv. In fact, provisional measures have been respected in just 50% of cases since 2001, indicates a recent analysis conducted by American lawyer Matei Alexianu and published in the blog of the European Journal of International Law.
Worse, in the most high-profile recent cases, such as the case brought against Russia by Ukraine for the deportation of its children or against Azerbaijan against Armenia to ensure a safe return of the inhabitants of Nagorno-Karabakh in 2022 or against Myanmar by the Gambia in 2020, the country sanctioned by the UN justice chose to defy the court's decision, and this, according to it, to protect the existence of its state or its regime. An existential cry presented by Israel as a justification for its response, since the first hours of its war launched against Hamas.