A complaint was filed by Pretoria with the International Court of Justice. According to this South African request to the highest UN court, the Jewish state seeks to “provoke the destruction of a substantial part of the Palestinian national, racial and ethnic group”.
Of the “genocidal acts” have they been committed in the Gaza Strip since the start of the war between Israel and Hamas? Hearings are expected at the International Court of Justice (ICJ), Thursday January 11 and Friday January 12, regarding a request filed at the end of December by South Africa. In his request (in PDF)the South African government judges that the Hebrew State “has engaged, is engaged in, and risks continuing to engage in acts of genocide against the Palestinian people in Gaza” since the start of its operations in the Palestinian enclave, in retaliation for the atrocities committed by Hamas on October 7.
South Africa is a long-time supporter of the Palestinian cause. “Our freedom is incomplete without that of the Palestinians”, declared Nelson Mandela in 1997. What does South Africa reproach and ask of Israel? What can the highest court of the UN do? How are the Israeli authorities reacting? Franceinfo answers all these questions.
Why was the matter referred to the International Court of Justice?
South Africa and Israel are parties to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. As the UN explains, the text “provides that States may take legal action to prevent a crime of genocide from occurring” And “obligates States parties to the Convention to take measures to prevent and punish the crime of genocide”.
South Africa thus condemns “unequivocal” Hamas terrorist attacks, but judges that an attack, “no matter how serious it is” and even if it includes atrocities, “cannot justify or defend violations of the Convention” on the genocide. For Pretoria, Israel’s response to these attacks includes acts “genocidists” because “they aim to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group”.
This is the definition of the crime of genocide, according to the Rome Statute of the International Criminal Court: the murder of members of a group, “serious harm to their physical or mental integrity”or even a “intentional submission of the group to conditions of existence before cause its total or partial physical destruction”, “with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”.
To support these accusations, South Africa cites “the killing of Palestinians in Gaza”, “serious physical and psychological damage” And “living conditions likely to cause their physical destruction” since the beginning of a “exceptionally brutal military campaign” in the Gaza Strip. In three months, after the attack which left around 1,140 dead in Israel, according to an AFP count, the war has left at least 23,357 dead, according to the Ministry of Health administered by Hamas. An unverifiable assessment due to the lack of an independent source on site, but taken up by the UN.
What can this jurisdiction do?
Through its request, Pretoria asks the International Court of Justice to take “provisional measures”, “necessary to protect [les Gazaouis] against further serious and irreparable violations of the rights of the Palestinian people under the Genocide Convention. While the Court examines the heart of the matter, South Africa calls for an immediate suspension of Israeli operations in the Gaza Strip. She also calls for an end to forced displacement of Gazans, sufficient access to humanitarian aid, food and water, and even preservation of evidence that could be studied in this case.
If the ICJ takes provisional measures, these are legally binding, recalls the UN. They cannot be appealed, but the court has no power over their application. In March 2022, the International Court of Justice called on Russia to “suspend immediately” the invasion of Ukraine… but this measure was never respected by Moscow. As The Conversation website points out, the ICJ’s decision on provisional measures regularly comes one to two months after the hearings.
“The International Court of Justice may pronounce provisional measures before declaring itself competent” on the merits of the case, specifies Yann Jurovics, lecturer in international law at Paris-Saclay University. By pronouncing provisional measures, “she says that there are elements which lead her to take the question of her competence seriously”adds this former jurist for the international tribunals for the former Yugoslavia and Rwanda.
This process, if it continues, is expected to last several years. “It is very difficult to establish the facts of genocide. It is a crime which requires many constituent elements. It is necessary to establish that there is a desire to destroy a group, only because it exists”, recalls Yann Jurovics. The latter, however, doubts that the action initiated by Pretoria will succeed.
What are the reactions?
South Africa decided to suspend diplomatic relations with Israel on November 21. Unsurprisingly, the Jewish state reacted strongly to the South African accusations. These are a “absurd defamation”, castigated the spokesperson for the Israeli government. For Eylon Levy, Pretoria is on the contrary “criminally complicit in Hamas’ campaign of genocide against our people” And “fights voluntarily for anti-Jewish racists”. “History will judge you”the spokesperson further declared.
Israeli Prime Minister Benjamin Netanyahu also responded to Pretoria’s request to the International Court of Justice. He mentioned “a false accusation” and expressed his “disgust”. “No, South Africa, it is not us who came to perpetrate genocide, it is Hamas”, declared the head of government. Hamas, he continued, “would kill us all if it could. On the contrary, the IDF acts in the most moral manner. It does everything possible to avoid harming civilians, while Hamas does everything possible to harm them, using them as human shield”.
The South African request was also rejected by the United States, Israel’s historic allies. The spokesperson for the National Security Council, John Kirby, thus estimated that it was “without merit, counterproductive and devoid of any factual basis”. US State Department spokesperson Matt Miller said the United States was not observing “no act that could constitute genocide” in operations carried out by Israel.