Israel To Face Genocide Case In International Court Over Gaza Strikes: Q&A

(Bloomberg) -- Israel’s three-month military campaign against the Hamas group, a response to the Oct. 7 attacks on its own country, has led to growing international pressure on Prime Minister Benjamin Netanyahu to pull back Israel’s armed forces. South Africa, among the most vocal critics of the devastating war in the Palestinian territory of Gaza, has now called on the United Nations’ International Court of Justice to rule that Israel’s actions constitute genocide. 

The case marks the first time a court will examine Israel’s recent operation in the territory as well as being a high profile test of a court that has no power to enforce its rulings. The hearing starts on Thursday with two days of arguments over whether judges should immediately impose orders on Israel to cease any military operations while the case is pending.

1. What’s the case?

South Africa alleges that Israel’s military operations in Gaza violate the country’s obligations under the United Nations Genocide Convention and that its actions mean it’s committing genocide. Authorities in Hamas-run Gaza say more than 22,000 Palestinians have been killed since the start of the war.

South Africa is seeking a ruling that states Israel has violated the convention, must stop its campaign, and ultimately that those responsible should be prosecuted. 

Israel has denied the allegations, saying the campaign is in defense of its own territory and that it has worked to prevent civilian casualties in its war against Hamas, which is designated a terrorist organization by the US and EU. Israel says Hamas killed some 1,200 people in the Oct. 7 attack. 

2. What’s the Genocide Convention?

The “Convention on the Prevention and Punishment of the Crime of Genocide” is an international treaty passed in 1948 as a reaction to Germany’s attempt to kill all Jews in the Holocaust. Israel and South Africa are among the 153 states which ratified the treaty, though genocide is now banned under international law regardless of whether a country signed up to the agreement.

The convention protects national, ethnic, racial and religious groups and defines the killing of members, causing them serious bodily harm, and deliberately inflicting conditions meant to harm them as crimes. However, any such acts only count as genocide if they are committed with intent to destroy the group, in whole or in part. 

The treaty makes genocide a crime under international law and signatory states must work to prevent genocide and include it as a crime in their national laws.

3. What kind of court is the ICJ and what are its powers?

The Hague-based ICJ is the main judicial body of the United Nations, sometimes dubbed the “World Court.” The tribunal only hears cases between UN member states over conflicts of public international law, and UN organs can also ask the judges for advisory opinions. Individuals cannot file cases or be sued.

For resolving cases, the ICJ issues judgments but cannot enforce them itself. It usually relies on the international community and the relevant parties to comply.

“Enforcement possibilities are vanishingly small, and that’s even more so for preliminary orders,” said Lea Brilmayer, a professor at Yale Law School. “There’s no real body that takes care of that. The UN could step in, but then we’d likely see a member of the Security Council blocking any such action.”

4. What’s the difference between the ICJ and the International Criminal Court?

While the ICJ can declare that a state violates rules of war or the Genocide Convention, it can’t try or punish anybody. That task was given to the International Criminal Court, which has a prosecutor who can investigate and charge individuals with war crimes, crimes against humanity and genocide. These cases are then tried by the ICC, which is also based in The Hague.

Israel hasn’t ratified the ICC’s statute and doesn’t recognize its jurisdiction. However, the “State of Palestine” is listed as a state that became a member of the ICC in 2015. Karim Khan, chief prosecutor of the ICC, has said he has the power to investigate any alleged crimes in Gaza, including the attack and hostage-taking by Hamas that prompted the Israeli campaign, and any other war crimes that may have been carried out.

5. What happens if South Africa wins at the ICJ?

The ICJ’s judgments are binding with no right of appeal and the UN Charter says that each party in the case “undertakes to comply with the decision.” Legally, that means Israel — in case of an adverse ruling — has to do whatever the court rules, but there is no mechanism to enforce any such order.  

For its part, South Africa could take a positive ruling and use it to pressure other nations in the UN General Assembly to change their position on Israel. The country’s ruling African National Congress has historic ties and sympathies with the Palestinian cause, saying the issue mirrors its own struggle against apartheid rule.

In a suit filed by Ukraine under the Genocide Convention after Russia’s full-scale invasion in 2022, the ICJ on March 16 issued a provisional order telling Russia to immediately suspend its military operations. Russia ignored the order.

“There was a time when it was unthinkable that a government wouldn’t obey an ICJ ruling,” Brilmayer said. “Unfortunately, in recent decades, we’ve seen more and more cases where judgments were simply ignored.”

If the court dismisses the action, Israel could get a boost, according to Brilmayer. “A dismissal would increase its standing with its allies, who have been warily looking at what’s happening in Gaza. Israel could capitalize on the ruling to keep their support.” 

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