South Africa accuses Israel of genocide: What happened in court today?

‘No attack, no matter how severe, can justify this violence,’ a South African lawyer argued before the court

Israeli lawyer Tal Becker (left) and barrister Malcolm Shaw of Great Britain are part of the Israeli team at the International Criminal Court in the Hague on Jan. 11. The court is considering a case in which South Africa has accused Israel of genocide in Gaza. Photo by Michel Porro/Getty Images

By Lauren Markoe January 11, 2024

In the first day of arguments in a case accusing Israel of committing genocide in Gaza, a South African lawyer Thursday told the International Court of Justice, the United Nation’s top court, that “the intent to destroy Gaza has been nurtured at the highest level of state.” Israel, which vehemently denies the charge, will get to dispute it on Friday.

Here’s what you need to know about Thursday’s proceedings.

Who is making the case against Israel and what do they want?

South Africa last month filed a case accusing Israel of genocide in Gaza at the International Court of Justice in The Hague. (The ICJ is separate from the UN’s criminal court, which handles cases against individuals.)

Though the court may take years to rule on whether Israel has committed genocide, it will likely rule within weeks on South Africa’s immediate demand: that Israel be ordered to cease its operations in Gaza. That’s the focus of this week’s hearings.

What happened in court on Thursday?

In three hours of oral arguments, eight lawyers representing South Africa condemned the Oct. 7 attack on Israel, in which Hamas, which governs Gaza, killed close to 1,200 people and took 240 hostages. But “no attack, no matter how severe, can justify this violence,” said Tembeka Ngcukaitobi, a lawyer for the High Court of South Africa.

The court “has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention” that amounts to “a plausible claim of genocidal acts” on the part of Israel, said South African lawyer Adila Hassim. More than 23,000 Palestinians have been killed in Gaza since Oct. 7, according to its health ministry.

The South African lawyers also asked the court to put Israel’s actions in the context of its alleged “systematic oppression” of Palestinians since its founding, and noted statements from Israeli leaders in which they seem to call for the demise of all Gazans, not just Hamas militants.

How did Israel respond to South Africa’s opening remarks in the case?

Israeli Prime Minister Benjamin Netanyahu after the hearing said allegations against Israel are hypocritical, given Hamas’ stated intent to kill Israelis and Jews.

“Today we saw an upside-down world. Israel is accused of genocide while it is fighting against genocide,” he said.

The Israeli Foreign Ministry said South Africa failed to attribute any responsibility for the current war to Hamas, or to its practice of embedding its fighters and military equipment among Palestinian civilians.

Can the court enforce its rulings?

The ICJ has no powers of enforcement. But legal scholars say its rulings carry weight in the court of international opinion. As Noura Erekat, a human rights lawyer and professor at Rutgers University told CNN this week, a decision against Israel would send a “very significant signal.” Such a decision might further isolate Israel and the U.S., which has supported it through the war, and empower states to impose boycotts and cease arms sales to Israel.

As Orde Kittrie, a senior fellow at the Foundation for Defense of Democracies, put it: “You don’t want to be violating international law. You don’t want to be fighting when you’ve been told to stop.”

Who is going to win this case?

The 15 jurists of the court — plus two added for this case, one from South Africa and one from Israel — will decide if Israel has violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which it is a signatory.

The bar for determing whether it is “plausible” that Israel is committing genocide, the question in this week’s hearing, is far lower than that for determining that genocide has occurred.

As for that larger question, the one that could take years to decide — over whether Israel has actually committed genocide — some judges may be sympathetic to Israel’s argument that it is waging war not to kill Palestinians, but to disarm Hamas, and took steps to limit casualties.

An American, Judge Joan E. Donoghue, leads the court as its president. Donoghue served previously as a State Department lawyer in the administration of President Barack Obama. The other current members of the court represent: Russia, Slovakia, France, Morocco, Japan, Somalia, China, Uganda, India, Jamaica, Lebanon, Germany, Australia and Brazil.

JTA contributed to this report.

Lauren Markoe is news editor of the Forward. A Bronx native, she reported for The Patriot Ledger, several McClatchy newspapers in the South, and Religion News Service, where she was also managing editor. She also produced live radio shows at WAMU in Washington, D.C., where she lives.

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