With insights from Just Security, CNN, The Mail & Guardian, and The Conversation.
South Africa accused Israel of committing genocide against Palestinians in Gaza in its opening arguments at the United Nations International Court of Justice on Thursday.
“The intent to destroy Gaza has been nurtured at the highest level of state,” Tembeka Ngcukaitobi, advocate of the High Court of South Africa, told the court. He called Israel’s political and military leaders, including Prime Minister Benjamin Netanyahu, “genocidal inciters,” adding that Israel’s intentions are “evident from the way in which this military attack is being conducted.”
The case brought by Pretoria over Israel’s bombing campaign in Gaza, which followed Hamas’ Oct. 7 attack on Israel, also demands an end to Israel’s military operations in the enclave. Lawyers for Israel, which has called Pretoria’s claims “baseless,” will present the nation’s defense on Friday.
South Africa’s apartheid history informs this case
South Africa sees parallels between its apartheid history and Israel’s treatment of Palestinians. In the 1960s, South Africa was subject to an ultimately unsuccessful ICJ case arguing against its then apartheid rulers — something that now informs the case Pretoria has brought to The Hague, legal scholar Christopher Gevers wrote for South African newspaper the Mail & Guardian. The case “is about more than just the present legal dispute,” Gevers noted. But “by bringing it South Africa has offered the ICJ the chance to place itself and International Law on the right side of Dr King’s moral arc.”
Court decision could impact Israel-Hamas war’s future
The ICJ is likely to provide a decision on South Africa’s request for provisional measures — a form of international injunction against Israel’s strikes on Gaza — by the end of January, a move that could impact how the war proceeds. If the ICJ upholds South Africa’s request, Israel might have to make major changes to its military operations in the enclave. The court, however, doesn’t have any right to enforce any orders, so Israel could choose to ignore its findings. Few Israelis are willing to accept the genocide claims against the nation, Tel Aviv-based law professor Eliav Lieblich told CNN. “Some view the proceedings as just another case of international bias against Israel,” he said. “They mostly view the war as one of self-defense against Hamas, which due to the latter’s tactics result in wide but unintended harm to civilians.”
The case is a test of human rights doctrines
South Africa, thousands of miles away from Israel, is not directly affected by the war in Gaza, but it was still able to bring forward the case because of a legal doctrine called s. The doctrine allows a state party to a treaty to begin legal proceedings that would protect common rights. The use of the doctrine has major implications: It’s a huge development in human rights law, Alaa Hachem and Oona Hathaway wrote for Just Security, but comes with risks, as the ICJ could increasingly find itself in the middle of “vexing legal and political disputes,” they argued.
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