ANALYSIS | What is South Africa’s Genocide Case Against Israel?

Photo Credit: Patrick Post/AP via CNN

Almost two months after the beginning of the Israel-Hamas conflict, South Africa brought forth a case to the International Court of Justice (ICJ), accusing Israel of perpetrating genocide against Palestinians in Gaza.

On Dec. 29, 2023, South Africa submitted their case, requesting the ICJ to adjudicate whether or not Israel is committing genocide in Gaza. In their application, South Africa alleged Israel’s actions in the Israel-Hamas conflict were “genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.” South Africa claimed that “[Israel] is committing genocide in manifest violation of the Genocide Convention,” subsequently requesting the enforcement of several provisional measures. 

Some of these provisions include requiring Israel to halt military operations in the Gaza Strip, and for Israel to make efforts to prevent genocide and genocide incitement, according to ICJ documents. These provisions exist under the Genocide Convention, which seeks to create and implement an international framework for the prosecution and prevention of genocide.

Israel, in response, asked for it to be removed from the General List, as well as a rejection of the provisional measures. Israel’s Ministry of Foreign Affairs released a statement in response to the initial case brought forth by South Africa, denying all allegations, claiming that South Africa was acting as lawyers for Hamas, and calling the case one of the “greatest shows of hypocrisy in history”. 

On Jan. 26, the ICJ came forth with their initial ruling, in which they decided that the ICJ was in its right to preside over the case. However, while the ICJ did order Israel to prevent genocidal actions and speech that could incite genocide, they did not commit to calling for an end to Israel’s military operations.

Even if the ICJ had ruled that Israel needed to terminate its military operations, nothing would have forced Israel to follow through. The ICJ, while providing a framework for international law, does not have any actual way to enforce its decisions, instead relying on its member states following through. However, an ICJ decision still holds weight, and in this case, experts such as Celeste Kmiotek, an international human rights lawyer, still believe that an ICJ decision against Israel could dissuade its allies from joining in the conflict. 

The case brought forth in the ICJ is not the only case in international law that exists to deal with the ramifications of the Israel-Hamas conflict. Unlike the ICJ, which instead focuses on solving disputes between countries, the International Criminal Court (ICC) exists to prosecute war crimes. The ICC has had an ongoing investigation into war crimes in the State of Palestine since 2021, however, a similar weakness of international law exists with the ICC’s investigation, as Israel is not a member of the court, and the ICC would subsequently have difficulty enforcing a decision.

South Africa’s motivation for bringing the case forward has multiple factors. South Africa has had a history of protecting humanitarian rights since ending apartheid in 1994. In the 90’s, South Africa aligned itself with the Palestine Liberation Organization (PLO), with its first president, Nelson Mandela, saying in 1990, “we identify with the PLO because, just like ourselves, they are fighting for the right of self-determination.”

 According to Vox, South Africa post-apartheid had a strong economic relationship with Israel, however, the African National Congress (ANC), the leading political party in South Africa, disapproved of Israel’s many conflicts with Palestine in recent years. This came to a head when South Africa closed Israel’s embassy after the start of the conflict, severing diplomatic ties until a cease-fire was reached.  

Part of South Africa’s decision to accuse Israel of genocide may also lie in an effort to preserve their global image, given that in 2015, the country did not arrest the Sudanese dictator Omar al-Bashir when the ICC requested he be turned in, despite him being in South Africa.