KEY POINTS:
- South Africa has accused Israel of committing genocide toward Palestinians in Gaza.
- Its motion is being put before the International Court of Justice in The Hague.
- Israel denies the allegations and says it will defend itself in court.
With roughly 22,500 Palestinians killed by Israel's bombardment of Gaza, the United Nations' (UN) main court is now considering whether the assault amounts to genocide.
South Africa has alleged to the International Court of Justice (ICJ) that Israel's are just that, demanding it urgently intervene to prevent more bloodshed.
But Israel flatly rejects allegations it is , insisting it is attempting to obliterate Hamas, which is operating among Palestinian civilians.
The Gaza Strip has been bombarded by Israel since Hamas launched its attack on 7 October. Source: Getty / John Macdougall
The US also says Israel's actions are not genocidal, describing South Africa's motion as "meritless, counterproductive, and completely without any basis in fact".
But is that true, when will the court rule, and could the case really change anything?
What is South Africa doing?
Israel is a signatory to the 1948 Genocide Convention, making it subject to the ICJ's jurisdiction.
A crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.UN Convention definition of genocide
South Africa lodged a case with the ICJ late last month, alleging that Israel's actions in Gaza are "genocidal in character" because they are designed to specifically destroy a population — the Palestinians — in part or in full.
It's urged the court to immediately intervene to halt Israel's bombardment and ensure its compliance with its obligations under international law.
What's South Africa's evidence in the case?
Juliette McIntyre, international law expert at the University of South Australia, describes South Africa’s 84-page application as "super detailed", with ICJ applications typically much more brief.
South Africa's argument does not centre solely on the military assault in Gaza, but also other elements it says are designed to make the enclave uninhabitable: a siege limiting the supply of food and water, and attacks on hospitals.
The US says South Africa's motion is meritless and counterproductive. Source: AP / Evan Vucci
Around five pages are specifically allocated to statements made by Israeli politicians since 7 October, in what South Africa says is evidence of Israel's intent to commit genocide — a key legal threshold.
Among them is Israeli Prime Minister Benjamin Netanyahu's reference to "Amalek" in November, a nod to an Old Testament story in which God commands King Saul to kill every man, woman and child in a country bordering Biblical Israel.
"You must remember what Amalek has done to you, says our Holy Bible. And we do remember," Netanyahu said.
Itamar Ben Gvir, Israel's far-right minister of national security, has said that Palestinians should leave Gaza in the long term. Source: AAP / Menahem Kahana
This week, Israel announced in northern Gaza, which it said would eventually be run by Palestinian authorities provided they posed no threat to Israel.
South Africa can add new evidence as the process continues.
McIntyre believes Israel's arguments before the ICJ will be similar to those it currently makes in public statements: that it is trying to eradicate Hamas, not the Palestinian people and civilian deaths are being exacerbated by Hamas using innocents as human shields.
Israel vowed to destroy Hamas after the 7 October attack on southern Israel, in which the group's fighters killed around 1,200 people, mostly civilians, and took over 200 people hostage. It was an escalation in a long-standing conflict between Israel and Hamas.
"There will, of course, be some fairly bold statements made about Hamas, and about what happened on [7 October] to justify their actions," McIntyre said.
"When states appear in the ICJ, they are making legal arguments to the court, but they also often use it as an opportunity to make political statements that will suit an audience back at home."
When and what could the court rule?
The normal turnaround for similar cases is between 30 and 50 days, but McIntyre expects a ruling on South Africa's application by the end of January.
"Given what's going on on the ground, I think it's going to treat this with absolutely the most priority possible," she said.
Israel's determination to defend itself could mean a longer process; in early 2022, the ICJ took under a month to order Russia to "immediately suspend [its] military operations" in Ukraine, but Moscow did not appear before the court.
It's important to note that the ICJ is unlikely to rule on whether genocide is occurring for a long time, but it could make an interim ruling ordering hostilities to cease.
To make that ruling, the court only needs to be satisfied that a genocide occurring is plausible and that failing to make a ruling risks irreparable harm.
Would a ruling really change anything?
Like other instruments of international law, the ICJ has been criticised as a toothless tiger.
Its ruling on Russia's invasion of Ukraine showed the limitations of its enforcement abilities, especially when dealing with major military powers. Russia simply ignored it, and the conflict continues today.
"Israel's probably not going to stop what it's doing because the court says so, which is unfortunate," McIntrye said.
"The only means of enforcing court judgments comes via the UN Security Council, which is not likely to be very successful because we know the US will veto anything that relates to Israel."
But aiding and abetting a genocide is itself a crime, meaning an ICJ ruling could complicate the situation for countries sending arms to Israel.
Australia has long been staunchly pro-Israel, including in international courts of law. In 2020, it told the International Criminal Court (ICC) to drop an investigation into settlements on the West Bank, because Palestine was "not a state".
Under Labor, the Australian government has acknowledged Israel's right to defend itself but said the way it does so "matters".
Australian Centre for International Justice executive director Rawan Arraf does not believe a ruling against Israel would be purely symbolic, saying it could carry "grave consequences" for its international partners.
Many Western countries repeatedly stress the need for an international rules-based order, meaning a ruling against Israel in a major international court could carry political weight and economic consequences.
Australian Centre for International Justice executive director Rawan Arraf believes an ICJ ruling could change the political calculations for Australia. Source: AAP / Issei Kato/AP
"[It would] need to really look more broadly at its actions and fostering of Israeli relations across different industries, in particular the defence industry."
That could include ending Australian Future Fund investments in Israeli banks — which Arraf described as "fundamental to the settlement project" in the West Bank — and sanctions on individuals, she said.
Could this mean charges for individuals?
Not directly.
The ICC is tasked with prosecuting individuals for war crimes and is separate from the ICJ.
But McIntrye says the ICJ ruling that a genocide is occurring in Gaza could provide ICC prosecutors with "a very strong foundation" to pursue individuals down the track.
"[It would be] evidential context for future prosecutions," she says.
"It would become a lot harder to say that Netanyahu, for example, was not involved in the commission of genocide when he was the head of a state that has been found to have been committing genocide."
Has an ICJ interim ruling on genocide happened before?
A few times.
In 2019, The Gambia launched a complaint against Myanmar, alleging its treatment of the Rohingya Muslim minority — including alleged mass killings and rapes, population transfers, and destruction of homes and holy sites — amounted to genocide.
The ICJ issued an interim ruling — ordering the regime to "take all measures within its power to prevent genocide" — the next year. Despite a military coup in 2021, Myanmar has complied with an ICJ ruling to provide briefings every six months.
