February 21, 2024

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Israel seeks dismissal of South Africa’s case at U.N. court alleging genocide against Palestinians in Gaza

Israel seeks dismissal of South Africa’s case at U.N. court alleging genocide against Palestinians in Gaza

Israel asked the United Nations’ International Court of Justice on Friday to dismiss a case brought by South Africa accusing Israel of committing the crime of genocide with its ongoing military operation against Hamas in the Gaza Strip. On December 29, South Africa became the first country to file a suit against Israel alleging that its operations in Gaza constitute genocide.

During Thursday’s opening session, South Africa laid out its allegations and asked the court to order an immediate halt to Israel’s military operations in Gaza.

Israel has staunchly rejected the accusation of genocide, insisting that it is acting within its right to self-defense after the Palestinian militant group Hamas’ unprecedented Oct. 7 terror attack and accusing South Africa of “brazen gall” in bringing the case, which it has dismissed as a “false and baseless” defense of Hamas. 

Israel, giving its first formal response to the allegations at the ICJ in The Hague, Netherlands, on Friday, asked the court to dismiss the case, which its lawyers said was based on “grossly distorted” accusations.

South Africa Wants Israel's Gaza Strikes Ruled a Genocide at The International Court of Justice
Pro-Palestinian demonstrators protest near the International Court of Justice (ICJ) in The Hague, Netherlands, Jan. 11, 2024.

Bloomberg/Getty


Police in The Hague kept rival pro-Israeli and pro-Palestinian protesters apart outside the court as they marched through the streets on Thursday, as the case opened. There was no violence, but it was tense as some of the opposing demonstrators chanted and shouted in each others’ faces.

Gaza’s Hamas-run health ministry says more than 23,700 people have been killed during the Israeli offensive sparked by Hamas’ attack, which Israel says left about 1,400 people dead and saw the Palestinian group kidnap more than 200 others. Hamas officials do not distinguish between civilian and combatant deaths.

Israeli attacks kill over 400 Palestinians in Gaza on Sunday
Bodies of Palestinians killed amid ongoing Israeli airstrikes on the Gaza Strip are buried in a mass grave at a cemetery in Deir al-Balah, Gaza, Oct. 23, 2023.

Doaa Albaz/Anadolu/Getty


What is the crime of genocide?

The crime of genocide was codified in international law by a convention signed by 150 United Nations member states in 1948. The Convention on the Prevention and Punishment of the Crime of Genocide, commonly referred to simply as the Genocide Convention, defines it as “a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.”

Under the convention, genocide can occur “both in time of war as well as in time of peace.”

Like the U.N. itself, the Genocide Convention came into being as part of the global response to World War II and the atrocities committed against European Jews by Nazi Germany.

What is South Africa’s argument against Israel?

South Africa presented its case Thursday and the country’s lawyers asked the ICJ judges to impose a binding preliminary order on Israel to halt all military operations in Gaza.

South Africa has recruited some of the country’s most prestigious legal minds to argue that no armed attack on a state, even if that attack includes atrocity crimes, such as Hamas’ Oct. 7 rampage in southern Israel, can justify violating the Genocide Convention.

“The 2.3 million Palestinians in Gaza, including over one million children, are extremely vulnerable. There is a grave threat to their existence,” South Africa alleges in an 84-page document laying out its case, adding that the Gazans “are in urgent and severe need of the court’s protection.”

“One Palestinian child in Gaza has been killed approximately every 15 minutes since Israel commenced military action,” the document states, repeating a frequent plea from health officials in the Hamas-run territory that “thousands more are missing under the rubble.”


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The document alleges that every day brings another significant loss of life and property, with grave human rights violations being committed. It claims “clear, repeated, dehumanizing statements by Israeli government and military officials which encourage the complete destruction of Gaza.”

“South Africa contends that Israeli decision-makers have articulated a clear intent to destroy Palestinians in Gaza as a group as such,” the document states, adding that Israeli officials’ remarks “constitute clear, direct and public incitement to genocide which has gone unchecked and unpunished.”

Thousands of miles away, South Africa’s government framed the case as a broader battle over the decades of strife between Israel and its Palestinian neighbors.

“The violence and the destruction in Palestine and Israel did not begin on Oct. 7, 2023,” said South African Justice Minister Ronald Lamola. “The Palestinians have experienced systematic oppression and violence for the last 76 years.”

Israel’s reaction

“This is no genocide,” lawyer Malcolm Shaw said in the court on Friday, representing the Israeli government. 

“The appalling suffering of civilians, both Israeli and Palestinian, is first and foremost the result of Hamas’ strategy,” Israeli foreign ministry legal adviser Tal Becker added. “If there were acts of genocide, they have been perpetrated against Israel…Hamas seeks genocide against Israel.”

At a press conference earlier this week, after meeting U.S. Secretary of State Antony Blinken, Israel’s President Hertzog said there was “nothing more atrocious and preposterous” than the case brought by South Africa. He vowed that Israel would “present proudly our case of using self-defense under our most inherent right under international humanitarian law.”

“Every single U.N. agency and body has been weaponized against Israel, and South Africa’s baseless and libelous case at the ICJ proves this exactly,” Israel’s U.N. Ambassador Gilad Erdan told the General Assembly this week.

In a statement issued Thursday, Israeli Foreign Ministry spokesperson Lior Haiat slammed South Africa’s case as “one of the greatest shows of hypocrisy in history, compounded by a series of false and baseless claims.”

“South Africa, which is functioning as the legal arm of the Hamas terrorist organization, utterly distorted the reality in Gaza following the October 7 massacre and completely ignored the fact that Hamas terrorists infiltrated Israel, murdered, executed, massacred, raped and abducted Israeli citizens, simply because they were Israelis, in an attempt to carry out genocide,” said Haiat.

“We are fighting terrorists, and we are fighting lies,” Israeli Prime Minister Benjamin Netanyahu said in a statement Thursday. “Today, again, we saw an upside down world, in which the State of Israel is accused of genocide at a time when it is fighting genocide.”


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Since launching its retaliatory military operation against Hamas in Gaza, Israel has insisted that it takes all possible measures to avert harming civilians and it accuses the militant group — long designated a terrorist organization by Israel, the U.S. and European nations — of using innocent Palestinians as human shields. The group’s history of positioning weapons and fighters amid civilian infrastructure is well-documented.

Netanyahu, in a video statement issued Wednesday, insisted that his country was “fighting Hamas terrorists, not the Palestinian population.” He said Israel’s military was adhering to international law and “doing its utmost to minimize civilian casualties, while Hamas is doing its utmost to maximize them by using Palestinian civilians as human shields.”

The Biden administration has remained a vital global ally to Israel, providing funding, weapons and, crucially, diplomatic defense at the United Nations of the country’s right to self-defense. But along with the death toll in Gaza, pressure has also been mounting on Israel to reduce the number of civilian casualties in the Palestinian territory. 

According to the State Department, in his discussions with Israeli leaders on Tuesday, Blinken “stressed the importance of avoiding further civilian harm and protecting civilian infrastructure in Gaza.”

Israel has alleged that the case is motivated in part by antisemitism, which has soared globally since the war in Gaza began.

What is the International Court of Justice and what can it do?

Established in June 1945 by the Charter of the United Nations, the ICJ started its work in April the following year. It is described by the U.N. as the global body’s “principal judicial organ.”

The court consists of a panel of 15 judges, all elected by U.N. members for nine-year terms. Both South Africa and Israel were permitted to appoint a judge to the panel for this case, bringing the total to 17 judges for the trial.

Anticipating that the ICJ will take its time in ruling on the genocide case, the South African lawyers asked the court to issue the injunction ordering an immediate stop to the Israeli military’s operations in Gaza. Some legal experts say the threshold for the court to issue such injunctions is low, and the ICJ could even respond within a week. 

But even if South Africa is successful, it’s highly unlikely that Israel would heed an order to stop its campaign in Gaza, which the government has said will continue at least through this year.

Still, one legal expert told CBS News that even having to fight the case at the ICJ is a symbolic defeat for Israel.

“South Africa has already won by getting the hearing, and Israel knows it,” said American human rights lawyer Francis Boyle, a professor at the University of Illinois who represented Bosnia at the ICJ and won two orders from the court demanding that Yugoslavia cease committing genocide against the Bosnian people.

Boyle told CBS News that the Israel case could drag on for years, but based on his “careful review of South Africa’s documents and knowledge and my experience with the ICJ court, I believe South Africa will win an immediate order against Israel to cease and desist all acts of genocide against Palestinians. I would believe such an order from the court would come within a week, and no more than two weeks.”

NETHERLANDS-ISRAEL-PALESTINIAN-CONFLICT-PROTEST
Pro-Israeli demonstrators take part in a protest during a hearing at the International Court of Justice (ICJ) on a genocide complaint by South Africa against Israel, in The Hague, Netherlands, Jan. 11, 2024.

ROBIN UTRECHT/ANP/AFP/Getty


The ICJ generally rules on disputes between U.N. member states, but it is a civil, not a criminal court, and by definition has no jurisdiction to try individuals accused of war crimes or crimes against humanity. Its decisions are binding and there is no avenue for appeals, but the court also has no means to enforce its rulings.

One recent example of a ruling was the ICJ’s 2022 order for Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine,” after the Ukrainian government brought a case alleging that Russia’s military was also committing genocide.

Russia’s invasion of Ukraine has continued despite the ruling.

CBS News’ Pamela Falk at the U.N. contributed to this report.