Ever since the Gaza offensive began, Israel knew that when it comes to the realm of public opinion, it was always living on borrowed time, and last week, it was showcased through South Africa's appeal to the International Court of Justice (ICJ), alleging so-called genocide in Israel's response to October 7.
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It exact words were "Israel’s actions are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinians in Gaza."
The request to the ICJ, also known as the World Court, seeks a series of legally binding rulings. It asks the court to declare that Israel “has breached and continues to breach its obligations under the Genocide Convention,” and to order Israel to cease hostilities in Gaza that could amount to breaches of the convention, to offer reparations, and to provide for reconstruction of what it’s destroyed in Gaza.
Israel has responded by announcing it will stand up to these allegations in front of the ICJ, a somewhat uncharacteristic move. Additionally, Israel is considering appointing one of the judges on the panel, which is allowed under the rules for any nation accused of such deeds.
Nick Kaufman, an Israeli attorney with vast experience when it comes to procedures in front of the Hague, has answered some questions on this complex issue.
What are the perils Israel faces due to South Africa's appeal, and can it translate to actual risk for Israeli statesmen or IDF officers?
"The proceedings in the International Court of Justice do not pose any danger to Israeli citizens or IDF officers that goes beyond the existing risks associated with the investigation conducted by the International Criminal Court. It's important to note that the court does not have the power to issue arrest warrants or pass judgments on individual suspects.
"Its role is to resolve disputes between countries. During the discussions on interim measures, the court will not determine whether Israel is committing genocide. Instead, it will examine whether the right of the Palestinian people to be protected from genocide is a reasonable claim given the circumstances, and whether the actions complained of by South Africa, if proven true, could be considered genocide.
"Interestingly, the proceedings in the International Court of Justice offer Israeli citizens a form of insurance against prosecution for genocide, as the plaintiff in the International Criminal Court would likely prefer to hear the opinions of the judges in the International Court of Justice before deciding the direction of their investigation."
How long will this go on?
"Years, potentially. South Africa will make its case on January 11 and Israel will counter a day later. It will be another month before full arguments are heard, at which point the subject of whether to issue an interim order that will bar Israel from attacking in Gaza, will be decided. Once a final verdict is given, it cannot be appealed."
What happens if the interim order to halt aggression in Gaza is issued and Israel resumes the offensive anyway?
"Despite South Africa's request, I find it difficult to believe that a broad order will be issued to compel Israel to cease fighting in Gaza. International law requires a contextual and proportionate connection between the rights that South Africa aims to protect and the relief sought.
"Issuing an order that obligates Israel to refrain from harming Gaza civilians who are not involved in the conflict could be a feasible way to safeguard the Palestinians' right not to be subjected to genocide. However, should Israel disregard an order for cessation of hostilities, it could result in increased isolation among nations and have implications for its foreign relations."
Who do you believe should represent Israel, and isn't the mere appearance before the tribunal grant it legitimacy?
"The main representative for the defendant is usually the Foreign Minister or the Israeli ambassador to the Netherlands, accompanied by several litigators. Proceedings are usually conducted in either English or French, so it's important Israel sends someone who is proficient in either one. Attendance isn't mandatory, but should Israel forego its chance to make its case, the verdict will rest entirely upon the plaintiff's claim."
What do you think of South Africa's claims?
"The claim being made is outrageous, both factually and legally. A substantial portion of the lawsuit focuses on interpreting regrettable and populist statements made by Israeli politicians and IDF officers. South Africa attempts to attribute to the decision-makers in operations an intention to commit genocide, meaning an intention to completely destroy the Palestinian people in any way possible.
"Exploiting the term 'genocide' in such a cynical manner touches upon the most sensitive aspect of Jewish consciousness, the sanctity of the Holocaust victims, which was the foundation for the treaty under which the petition was established."
What gives South Africa the right to approach the ICJ in the first place?
"The status of South Africa's appeal to the court is not clear-cut. The Gambia v. Myanmar case established that the obligations protected under the crime of genocide apply to all states, and each state has the ability to enforce these protected rights within its jurisdiction. It is intriguing to consider why the Palestinian Authority, despite being a member of this institution and even becoming a party to the crime of genocide in 2014, did not appeal to the court.
"There is a definite indication that South Africa is acting as a Palestinian proxy, driven not only by the animosity it has displayed towards Israel in recent years but also by a desire to bypass Israeli allegations regarding the status of Palestine as a state entitled to appeal to the court. As a result, the United States chose not to participate in the discussions concerning the Palestinian Authority's appeal in 2018 regarding the location of the American embassy in East Jerusalem."
Can international pressure on behalf of Israel make any difference to the proceedings?
"None. Ever since South Africa filed the petition, hardly anyone in the diplomatic scene has taken any notice, save for some fringe academic circles."
Should Israel take any action against South Africa?
"The best way to counter South Africa is to show up, respond to the allegations nullify this act of maligning the state of Israel."
What would Israel's central claim be?
"The power to submit a petition to the Hague Court of Justice is derived from Article 9 of the 1948 Genocide Convention, which mandates the presence of a 'dispute' between the involved parties.
"While there have been several accusations of genocide against Israel by South African politicians in recent months, notably by Minister of Foreign Affairs Naledi Pandor, these claims have primarily been made through media outlets. They have not been formally communicated to the Israeli government through established diplomatic channels, thus depriving Israel of a proper opportunity to provide an official response.
"On November 17, 2023, South Africa, along with four other pro-Palestinian countries, officially claimed to the Criminal Court that there is a suspicion of Israel committing genocide. However, it is important to note that this suspicion is still developing. Surprisingly, Israel has not yet responded to these claims and has not been formally asked to do so.
"This is in contrast to the case of Gambia against Myanmar, where discussions took place at the UN General Assembly before ICJ proceedings, allowing Myanmar to address Gambia's claims. In light of these circumstances, Israel could argue South Africa has not established the Court's authority to consider its petition."