South Africa’s genocide case against Israel, explained

The South African government has taken its firmest stance yet against Israel’s war in Gaza, accusing Israel of genocide against Palestinians in a new case in the International Court of Justice (ICJ) at the Hague.

South Africa initiated the case Friday and requested the ICJ order Israel to stop its onslaught in Gaza immediately. While South Africa’s filing may not affect the outcome of the war in any meaningful way, it does draw on longstanding ties between Black South Africans’ liberation struggle and that of the Palestinian people. It also signals the country’s desire to challenge the US-dominated international order that it sees as unfair to African and non-Western interests. 

The 84-page application states that “The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Israel quickly rejected the filing “with disgust,” calling it a “blood libel” — a reference to a false accusation that originated in the Middle Ages that Jewish people would murder Christians and use their blood in rituals, and which was used as a justification for oppression of Jewish communities. 

The ICJ is different from the International Criminal Court, which is already investigating alleged war crimes committed by both Israel and Hamas stemming from the October 7 attacks. The ICC is set up to investigate and prosecute individuals at the highest levels who are accused of planning and directing war crimes, while national courts are typically the venue to prosecute perpetrators of low-level war crimes — individual fighters who may have carried out war crimes directed by those high-level commanders or leaders. 

Under the Genocide Convention, any country can bring charges of genocide against another at the ICJ, regardless of whether they are party to the conflict; in 2019, Gambia brought a genocide case against Myanmar due to its crimes against the Rohingya ethnic group, and the ICJ upheld the legality of the case in 2022. South Africa’s petition represents one of the few avenues for an international body to make a clear statement about Israel’s actions in Gaza.

Israel continues to bombard Gaza, the Palestinian enclave ruled by Hamas, following that group’s attack on Israel on October 7. During that attack, Hamas and fighters from Palestine Islamic Jihad killed 1,200 people and took 240 hostages, many of whom have been released. Since then, Israel has killed more than 21,000 people including more than 8,500 children, according to Gaza’s media office; internally displaced 1.9 million; and damaged or destroyednearly 70 percent of the homes and 50 percent of the buildings in the region. 

The Palestinian foreign ministry, based in the West Bank, lauded South Africa’s action and called on the court to “immediately take action to protect Palestinian people and call on Israel, the occupying power, to halt its onslaught against the Palestinian people.”

Accusations of genocide are difficult to prove because they include not just actions but intention. Throughout the conflict, pro-Palestinian activists, scholars on the subject, and politicians have accused Israel of genocide — an accusation that’s particularly fraught since Israel was founded in the wake of the Holocaust. But there have been successful prosecutions of genocide in the 20th century, in Rwanda and Bosnia, via international criminal tribunals set up through the UN. 

South Africa has multiple reasons to file the accusation against Israel

South Africa’s ruling African National Congress (ANC) has deep ties to the Palestine Liberation Organization (PLO), stretching back to its former leader and South Africa’s first post-apartheid president, Nelson Mandela. The ANC aligned itself with the PLO and other revolutionary causes while Mandela was in prison; after his release, Mandela was a vocal supporter of the PLO and its leader Yasser Arafat, saying in 1990 that “we identify with the PLO because, just like ourselves, they are fighting for the right of self-determination.”

Decades later, that sentiment remains in the South African government, and for many ordinary South Africans who see their struggle against colonialism and apartheid in the Palestinians’ own plight and decades-long struggle for self-determination. That’s particularly salient in an election year for South Africa as the ANC and its leader, President Cyril Ramaphosa, struggle to stay the dominant power there.

“There’s huge historical precedent for it, both in a domestic political context and in a moral [and] legalistic context,” Michael Walsh, visiting scholar at the University of California Berkeley, told Vox. “South Africa has been engaged on the Palestinian issue since really the end of apartheid and the founding of the state. It’s been a prominent issue in South African politics and among South African leaders.”

The ICJ referral is not the first step South Africa has taken to hold Israel to account for its attacks on Gaza; Ramaphosa has repeatedly condemned Israel’s actions against Palestinians; since the October 7 attacks and subsequent Israeli campaign in Gaza, the government has repeatedly condemned Israel in the international press. The parliament also voted to close the Israeli embassy and withdrew its diplomatic staff from Israel, while the foreign ministry delivered a referral to the International Criminal Court to investigate alleged crimes, including the crime of genocide, in the Palestinian territories in November. 

Though South African solidarity with the Palestinian cause is a crucial part of its condemnation of Israel, there are domestic and foreign policy reasons to try to hold Israel to account on an international stage — one of those reasons being “legitimacy in the international system and being perceived as a major player,” Walsh said. “I think there’s a perception that South Africa has really fallen in its stature on the international stage.”

That perception is at least partly due to South Africa’s refusal to arrest Sudanese dictator Omar al-Bashir in 2015, when the ousted leader traveled to the country for a meeting of the African Union. The ICC had issued warrants for Bashir’s arrest on charges of war crimes and crimes against humanity in 2009, and on genocide charges in 2010; South Africa, as a party to the ICC, was obligated to arrest Bashir and turn him over to the court for prosecution. However, the ICC effectively failed to punish the country by refusing to refer South Africa to the UN Security Council or the ICC’s Assembly of States Parties, perhaps out of concern that South Africa would withdraw from the ICC.

South Africa avoided a similar conundrum last year when Russian President Vladimir Putin, who is also subject to an ICC arrest warrant for his invasion of Ukraine in 2022, opted to attend a summit via video instead of in person this summer.

“There’s been lots of pressure put on South Africa over the last couple of years to deal with individuals who have been accused of war crimes but who are clearly not on the Western side of the international political divide,” Walsh said. With the ICJ case, South Africa is able to assert itself as a player on the international stage, express longstanding solidarity with the Palestinian cause, address domestic political sentiments, and point out the imbalance of international bodies when it comes to prosecuting war crimes. 

South Africa has a “deep-seated belief that Israel is committing war crimes, and that there’s an important need to hold accountable any state that commits war crimes,” Walsh said. “And I think that they see a tremendous hypocrisy in how war crimes are prosecuted around the world. And so they’ve made this a cause.”
 

The ICJ has limited power to enforce its rulings

The ICJ represents one of the only possibilities to bring the conflict before an international body, Iva Vukušić, assistant professor in international history at Utrecht University, told the Guardian, as “states, globally, don’t have a lot of places to ‘go to’ in these kinds of situations, especially with the [UN] Security Council being as polarized and dysfunctional.” But it has little ability to put consequences behind its decisions. 

The ICC can prosecute genocide, crimes against humanity, war crimes, and the crime of aggression — for example, Russia’s invasion of Ukraine. And it has the ability to hold people in detention in the Hague until they can serve out their sentence in one of the countries that have agreed to carry out those sentences. The ICJ can render judgments on these, too, but against states and not individuals. 

But the mechanism for carrying out that ruling is the ruling itself, which does not mean that a state will comply — for example, the ICJ ruled that Russia should immediately end its hostilities in Ukraine; that war is getting ready to enter its second year. The UN Security Counciltheoretically enforces consequences should a party to the case fail to comply, but, as Vukušić noted, that body is highly politicized, especially among the five permanent members with veto power. 

It could be months or even years before the ICJ delivers a ruling in the case. But in the immediate term, South Africa is calling for an interim order for a ceasefire from the court, which could be delivered in the coming weeks, the Associated Press reports.