Israel faces accusation of genocide against Palestinians in Gaza in case brought by South Africa at U.N. court

Israel is facing a trial at the United Nations’ International Court of Justice, accused 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. 

The case opens Thursday, when South Africa will lay out its allegations. Israel has already blasted the case as “atrocious and preposterous,” but will give its first formal response to the allegations at the ICJ, which is in The Hague, Netherlands, on Friday.

Gaza’s Hamas-run health ministry says more than 23,000 people have been killed during the Israeli offensive sparked by the Palestinian militant group’s Oct. 7 terror attack, which Israel says left about 1,400 people dead and saw Hamas kidnap more than 200 others. Hamas officials do not distinguish between civilian and combatant deaths.

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 will present its case on Thursday, and it has recruited some of South Africa’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.”

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 will appoint a judge to the panel for this case, which will bring the total to 17 judges for the duration of the trial.

Anticipating that the ICJ will take its time in ruling on the genocide case, the South African lawyers are expected to ask the court to issue an 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 the order to stop its campaign in Gaza, which the government has said will continue 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.”

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.

Israel’s reaction

At a press conference Tuesday after meeting U.S. Secretary of State Antony Blinken, Israel’s President Hertzog said, “there is 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. 

“How can it be that the Convention on the Prevention of Genocide, adopted following the Holocaust, the genocide of the Jewish people, is now being weaponized against the Jewish State?” Erdan told CBS News on Wednesday. 

Since it launched 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 Palestinian 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.

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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.

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

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