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Israel is scheduled to appear at the International Court of Justice in The Hague on Thursday to face charges of committing genocide in Gaza, which could have implications for the course of the war.
South Africa, which filed the lawsuit, accuses Israel of violating international law by committing and failing to prevent acts of genocide “in order to destroy the Palestinians in Gaza.”
Israel has rejected the allegations – as has its most important ally, the USA.
The International Court of Justice case adds to international pressure on Israel to limit or end its war against Hamas, which health officials say has killed more than 23,000 people in Gaza – many of them women and children – and left much of the enclave uninhabitable has forced the population to flee on the verge of famine.
Israel launched the campaign after Hamas militants rampaged through Israeli communities on October 7, killing around 1,200 people and taking more than 200 hostages.
After hearings on Thursday and Friday, the justices are expected to rule within weeks on interventions that South Africa has called for to change Israel's conduct of the war. A verdict on the genocide issue could take years.
What is the ICJ and what powers does it have?
The International Court of Justice was established after World War II to resolve disputes between countries and is the principal judicial body of the United Nations.
The UN General Assembly and the Security Council elect the court's 15 judges for a nine-year term. Its president is Joan Donoghue, a former State Department legal adviser.
A 1948 convention ratified after the Holocaust made genocide a crime under international law and gave the International Court of Justice the power to determine whether states committed it.
The court's rulings are legally binding, but enforcement can be difficult and can be ignored. Russia, for example, rejected a 2022 order to end its war against Ukraine.
The International Court of Justice is different from the International Criminal Court, a newer body that tries people accused of violations of international laws, including war crimes and genocide. Neither Israel nor the United States recognize the jurisdiction of the ICC.
What is South Africa's Israeli genocide case?
In an 84-page filing, South Africa accuses Israel of seeking to “annihilate the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnic group.”
“Israel has reduced the Gaza Strip to rubble and will continue to do so by killing, harming and destroying its people and creating living conditions designed to bring about their physical destruction as a group,” the country argues.
South Africa highlights Israel's large-scale killing and maiming of civilians; the use of “stupid” bombs; the mass displacement and destruction of urban neighborhoods; “Deprivation of access to adequate food and water,” medical care, shelter, clothing, hygiene and sanitation for civilians; its eradication of Palestinian civic institutions; and that Gaza's residents fail to provide a place of safety.
South Africa also accuses Israel of preventing Palestinian births by expelling pregnant people, denying them access to food, water and care, and killing them.
To succeed, South Africa must show that Israel's goal is not just to wipe out Hamas, but to destroy the Palestinians “as such” in Gaza. The country quotes Israeli leaders calling for mass expulsions from Gaza or denying that anyone there is innocent.
In a filing with the International Court of Justice, South Africa accused Israel of “genocidal intentions,” citing statements from senior officials. Israel denies the allegations. (Video: Joy Yi/The Washington Post)
Proving genocidal intent will be challenging, said Adil Haque, a professor of international law at Rutgers University. Still, he said, Israel must explain: “How can it be that all these military and political leaders are making these extreme statements?”
Amichai Cohen, a law professor at Israel's Ono Academic College, said South Africa's case reflected “classic cherry-picking.”
“Things have been said, tweeted and written by Israeli politicians that are extremely problematic,” he said. “But they are not the decision-makers.” Still, he said, a recent increase in calls from right-wing Israeli ministers for Palestinians to “emigrate” from Gaza “doesn’t help.”
Israel vehemently denies the allegations and says South Africa is a “criminal accomplice” of Hamas.
“We have made clear in words and actions that we are targeting the monsters of October 7 and are finding new ways to uphold international law,” government spokesman Eylon Levy said last week.
“Our war is against Hamas, not against the people of Gaza,” said Rear Adm. Daniel Hagari, spokesman for the Israel Defense Forces said Tuesday.
Israeli officials say they are not targeting civilians or trying to force Palestinians out of Gaza. Israel accuses Hamas of using civilians as human shields. The government has launched a PR campaign for this purpose refute allegations that it hinders the delivery of humanitarian aid.
Israeli officials accuse Hamas and allied groups of waging a genocidal campaign against Jews. The government on Wednesday launched a website for foreign viewers with graphic images of the Oct. 7 attacks and their aftermath.
However, the International Court of Justice has the authority to consider allegations only against states and not against militant groups.
Who will argue and try the case?
South African human rights specialist John Dugard leads his country's legal team. He has extensive experience investigating alleged Israeli rights violations in the occupied Palestinian territories and has served as an ad hoc judge at the International Court of Justice.
The Israeli defense team is led by British lawyer Malcolm Shaw, a specialist in territorial disputes who has defended the United Arab Emirates, Cameroon and Serbia before the International Court of Justice.
Choosing a respected figure in the field, Cohen said, “means Israel is taking the case seriously.”
Each side is allowed to appoint one judge, for a total of 17. These ad hoc judges are intended to weigh the facts independently, but states typically appoint judges they believe will agree with their arguments.
Israel has chosen the former president of its Supreme Court, Aharon Barak, a champion of judicial independence and particularly a critic of Prime Minister Benjamin Netanyahu's efforts to reform Israel's courts. Barak's appointment on Sunday was praised by Israeli centrists and condemned by Netanyahu's right-wing allies.
Cohen described Barak as a “great defender of the State of Israel.” Barak told the Canadian newspaper Globe and Mail several weeks after the war began that Israel's mission and behavior in Gaza had not violated international law.
South Africa elected Dikgang Moseneke, a former deputy chairman of the Constitutional Court. Moseneke helped draft South Africa's interim constitution in 1993 as the country transitioned from apartheid to democracy.
Personal background of appointees – Barak is a Holocaust survivor; Moseneke spent time in prison for his anti-apartheid activism — “could lead to a very interesting clash,” said Haque, the Rutgers professor.
Why are this week's hearings significant?
The hearings will discuss “interim measures” to prevent conditions in Gaza from deteriorating during the process. One measure that South Africa demands: that Israel “stop killing the people of Gaza.” South Africa will argue its case on Thursday. Israel will respond on Friday.
Moscow's order to stop fighting in Ukraine showed the limits of the court's power. Juliette McIntyre, a law lecturer at the University of South Australia who specializes in international courts and tribunals, said she would be surprised if the court made a similar order against Israel.
“I think we will likely see a much more nuanced arrangement that ensures that aid, water, etc. gets into Gaza and that Israel must meet its obligations,” she wrote in an email.
The only way to enforce an order from the International Court of Justice is a vote in the UN Security Council. Any of the council's five permanent members, including the United States, could veto such a measure. Secretary of State Antony Blinken this week called the genocide case “baseless.”
However, given recent U.S. efforts to push Israel to make greater efforts to minimize civilian deaths, an order could provide a pretext to apply greater pressure, McIntyre wrote, “without appearing to be alienated.” withdraw from Hamas.”
By defending itself in court, Haque said, Israel is accepting its legitimacy – which “will make it more difficult to defy the court's orders later.”
John Hudson and Lior Soroka in Tel Aviv contributed to this report.