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South Africa's genocide case against Israel: Can it win?

January 11, 2024

The genocide case South Africa brought against Israel for its war in Gaza has opened in the International Court of Justice (ICJ). Though similar cases were successful in the past, proving genocide in court isn't easy.

South Africa Minister of Justice Ronald Lamola and South African Ambassador to the Netherlands Vusimuzi Madonsela attend the International Court of Justice (ICJ) ahead of the hearing of the genocide case against Israel brought by South Africa, in The Hague on January 11, 2024.
South Africa hopes the landmark case will force Israel to stop its military offensive in the Gaza StripImage: REMKO DE WAAL/ANP/AFP/Getty Images

Many people in South Africa and other parts of the African continent are closely watching the case that opened at the International Court of Justice (ICJ) in The Hague on Thursday.

"All African countries should support South Africa in this step," Modou Jawo, a resident of the Gambian capital, Banjul, told DW. "What Israel is doing is killing innocent people."

South Africa's case against Israel at the ICJ is one of three currently before the top United Nations (UN) court, often described as the "World Court."

The other cases include one that was filed by Ukraine shortly after Russia's invasion, accusing Moscow of launching the military operation based on trumped-up claims of genocide and, in turn, accusing Russia of planning acts of genocide in Ukraine itself.

Lastly, in November 2019, Gambia filed a case at the ICJ on behalf of Muslim nations. It accuses Myanmar of genocide against the Rohingya Muslim minority. Gambia is predominantly Muslim and a member of the Organisation of Islamic Cooperation (OIC), which boasts about 30 African member states and is backing South Africa's case against Israel.

In 2020, during an early stage of proceedings, the ICJ ruled in favor of Gambia, ordering Myanmar to "take all measures within its power" to prevent the commission of acts defined in the convention — including ensuring that its military and any irregular armed units refrain from committing such acts.

Genocide case against Israel begins in The Hague

How do the South African and Gambian cases differ?

"South Africa's motivations might be very different from The Gambia," said Thijs Bouwgnegt, senior researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam, adding that South Africa's record of 46 years of legislated apartheid might have played a vital role.

In its 84-page application, South Africa stresses some similarities they see with the Palestinian territories. Israel rejects any suggestions of similarities with apartheid, and the claim is highly contentious globally.

"It is a very good move because it reflects South Africa's commitment to advocating for human rights and supporting those affected by conflict," Dija Jawo, a Gambian blogger, told DW.

Jawo also said that the rights of those living through apartheid in South Africa were violated.

"Some were killed, and some were imprisoned like Nelson Mandela for over two decades. So they know what the Gazans are going through," claimed Jawo.  

Israeli sympathizers take part in a demonstration during a hearing at the International Court of Justice (ICJ) on a genocide complaint by South Africa against Israel, in The Hague.
Hamas militants killed 1,200 people during the attack on October 7, 2023. Pro-Israel protesters stressed the country's right to defend itself on the first day if ICJ proceedings.Image: Robin Utrecht/ANP/AFP/Getty Images

Many Jewish South Africans are disappointed

However, the South African Jewish Board of Deputies (SAJBD) has criticized the South African government for taking Israel to the ICJ.

"We have not seen this being done by South Africa in relation to the Russia-Ukraine conflict, in relation to horrific conflicts occurring throughout Africa, including at the moment in the Congo and in the Sudan," Karen Milner, the national chair of the SAJBD, told DW.

South Africa's case arose after Israel launched its offensive in Gaza after Hamas — which has been recognized as a terrorist group by the EU, the United States, Germany and others, but not South Africa — carried out a series of major terror attacks in southern Israel on October 7, killing some 1,200 people and taking more than 200 hostages.

Tens of thousands of Palestinians in Gaza have since been killed in the fighting, according to the Hamas-run Health Ministry in Gaza.

The United Nations has warned that the humanitarian situation in Gaza is deteriorating.

"South Africa could have chosen a route which would have led to peace," Milner said.

She stressed that South Africa could have specifically demanded and placed pressure on Hamas to release the hostages.

"Instead, they have engaged in an extremely expensive, extensive legal process which is unlikely to have any real impact ultimately on the conclusion of this war."

A protestor holds a Palestinian flag at a demonstration during the hearing at the International Court of Justice (ICJ) on a genocide complaint by South Africa against Israel, in The Hague.
The Israeli offensive has killed more than 23,000 Palestinians, according to the Hamas Health Ministry. Pro-Palestinian protesters in front of the ICJ building displayed the names of those killed.Image: Robin Utrecht/ANP/AFP/Getty Images

1948 UN Genocide Convention

In its complaint filed at the ICJ, South Africa invoked the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.

"The crime of genocide under international law means specific acts done with the intent to destroy members of a national, racial, ethnic, or religious group. As such, in whole or in part," Bouwgnegt said.

Israel has firmly rejected the genocide allegations and vowed to fight them at the ICJ.

Israeli Prime Minister Benjamin Netanyahu, President Isaac Herzog, and other senior Israeli officials have made strong public statements accusing South Africa of "blood libel" — or antisemitism — the term for hostility or prejudice against Jewish people.

In addressing the opening hearing at the ICJ on Thursday, South African advocate Tembeka Ngcukaitobi said that "Israel has a genocidal intent against the Palestinians in Gaza."

Israel's legal representatives are due to address the ICJ on Friday.  

DW asked Michael Becker, Assistant Professor of International Human Rights Law at Trinity College Dublin, about the allegation of "genocidal intent." 

"It's very difficult to establish what's referred to as genocidal intent," Becker said. "That question of whether the requisite level of intent is present is difficult to show in a court of law."

Both Becker and Bouwgnegt agree that establishing whether or not Israel has committed or is committing genocide was a difficult question that could take many years to answer.

"It's one of the most challenging crimes to prove in a court of law," Bouwgnegt said.

Why is South Africa taking Israel to court for genocide?

Sankulleh Janko (in Banjul), Thuso Khumalo (in Johannesburg) and Lucia Schulten (in The Hague) contributed to this article.

Edited by: Keith Walker