The International Court of Justice has great influence in shaping international law. Its recognition of South Africa's claim may cement the perception that Israel is committing genocide in Gaza, says Dr. Shelly Aviv Yeini, an expert on international law
The security establishment and the State Attorney's Office are concerned that the International Court of Justice at the Hague will charge Israel with genocide in the Gaza Strip – this at the request of South Africa, which petitioned the court over the weekend.
Haaretz has learned that a senior legal expert dealing with the matter has in recent days warned IDF brass, including Chief of Staff Herzl Halevi, that there is real danger that the court will issue an injunction calling on Israel to halt its fire, noting that Israel is bound by the court's rulings. The military and the State Attorney's Office have already begun preparing to deal with the complaint, and a hearing on the matter will be held at the Foreign Ministry on Monday.
According to international law experts, the proceeding may cement claims of genocide against Israel, and thus lead to its diplomatic isolation and to boycott or sanctions against it or against Israeli businesses.
Unlike the International Criminal Court at the Hague, which conducts proceedings against private individuals, the International Court of Justice deals with judicial disputes between countries. Israel does not recognize the jurisdiction of the criminal court, which is conducting investigations into alleged war crimes by both Israelis and Palestinians, including in the current war.
In contrast, it is signatory to the treaty against genocide, by the power of which the court derives its authority to hear the complaint filed against Israel by South Africa. According to the court's prior ruling, any signatory country may file a complaint against another country, even if it's not directly harmed by it.
In its appeal to the court, South Africa claimed that Israel is committing genocide in Gaza and is not acting to punish those inciting to genocide. It accused Israel of "indiscriminate use of force and forcible removal of residents," and it claimed that among the reported Israeli actions are "crimes against humanity and war crimes." It also claimed that some of these actions meet the basic definition of genocide.
South Africa has requested that the court discuss the matter in the coming days and issue a temporary injunction against Israel that calls for a cease-fire in the Gaza Strip. According to the petition, this step is necessary to protect the Palestinians from "further irreparable damage."
South Africa further requested that the court order Israel to allow Palestinians removed from their homes in the Gaza Strip to return to them; to stop depriving them of food, water and humanitarian aid; to ensure that Israelis are not inciting to genocide and punish those who do; and to allow an independent investigation of its actions.
In its response to the petition, Israel accused South Africa of a "blood libel," which is "without legal merit and constitutes a base exploitation and contempt of court."
The Foreign Ministry's statement reads: "South Africa is collaborating with a terrorist group that calls for Israel's annihilation. Hamas is the one responsible for the suffering of the Palestinians in the Gaza Strip when it uses them as human shields and steals humanitarian aid from them."
As to accusations of harm to civilians, the ministry said that "Israel is committed to international law, abides by it and directs its military efforts against Hamas and terror groups that collaborate with them and against them only."
Prof. Eliav Lieblich, an expert on international law at Tel Aviv University, explains that South Africa makes two central claims: that Israel isn't acting to prevent statements that call for genocide and that it is committing actions that constitute genocide. These are very, very harsh things to Israeli ears, but their effect must not be ignored, and therefore the claims must be responded to seriously."
Dr. Shelly Aviv Yeini, an expert on international law at Haifa University, likewise believes that South Africa's complaint should not be taken lightly, as the ICJ has great influence in shaping international law, and its rulings impact the perceptions of the international community. Therefore, the recognition of South Africa's claim may cement the perception that Israel is committing genocide in Gaza.
"Genocide is a violation, the proof of which in court requires two elements," Lieblich adds. "First, you have to show intention of annihilation, and second – certain actions in the field that promote this intention. According to South Africa, the intention is proven by statements of senior Israeli figures and a public atmosphere of erasing or flattening Gaza, and the widespread harm to civilians and the hunger in Gaza show the factual element of the deed."
Lieblich said that extremist statements by senior Israeli officials could be seen as evidence of an intent to harm Gaza's civilian population. "In general, it's hard to prove an intention of genocide because no public statements to that effect are made during the fighting," he explained. "But these irresponsible statements about erasing Gaza will require Israel to explain why they don't reflect such an intention."
Nevertheless, Lieblich noted that South Africa would have to prove a causal connection between the politicians' statements and the military's actions, and he believes this would be hard to do.
"Israel generally doesn't participate in such proceedings," he noted. "But this isn't a UN inquiry commission or the International Criminal Court in the Hague, whose authority Israel rejects. It's the International Court of Justice, which derives its powers from a treaty Israel joined, so it can't reject it on the usual grounds of lack of authority. It's also a body with international prestige.
"This doesn't mean that if it issues a ruling or an injunction, it would be immediately enforced," Lieblich continued. "But if it determines in a ruling or even a temporary injunction that a suspicion exists that Israel is committing genocide, you have to think about what this would say for the historical narrative. For this reason, too, the proceeding must be taken seriously."
Lieblich noted that to date, the court has heard very few cases involving accusations of genocide. Around 15 years ago, it rejected a Bosnian complaint that Serbia had committed genocide but ruled that Serbia hadn't prevented the genocide that Serb militias perpetrated in the Srebrenica massacre.
Another case, which is still in the early stages, involves a Ukrainian complaint against Russia. The court is also hearing a complaint by Gambia against Myanmar over its persecution of the Rohingya.
"South Africa's complaint is intended to add Israel to this very disreputable group, and thereby also embarrass the U.S. as its ally," Lieblich said.
The court issued a temporary injunction against Myanmar. And according to Dr. Aviv Yeini, it's not inconceivable that it would issue such an injunction against Israel, ruling that its operations violate human rights protected by the Genocide Convention.
"If Israel doesn't provide a detailed response that rebuts the accusations against it, the court will likely do so," she added.