South Africa’s genocide case at ICJ against Israel spotlights global divide

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All eyes are on The Hague this Friday. Judges at the International Court of Justice are due to hand out a decision on South Africa’s request for interim orders as part of its genocide case against Israel, which was brought to the highest court of the United Nations amid the devastating, ongoing Israeli war with Hamas. In this preliminary phase of the case, the court can demand emergency measures to restrain the Israeli offensive in the Gaza Strip. Backers of the South African-led case are hoping the court endorses what could amount to a cease-fire.

Whatever the initial verdict, the full case over whether Israel is carrying out genocide will rumble on likely for years. Israel has bitterly fought the charge. It casts the accusation of genocide brought against it as “libel,” given both the brazen Hamas attack on Oct. 7 that provoked the current war and the deeper history of the Holocaust that preceded the founding of the Jewish state.

“A terrorist organization carried out the worst crime against the Jewish people since the Holocaust, and now someone comes to defend it in the name of the Holocaust? What brazen gall,” Israeli Prime Minister Benjamin Netanyahu said in reaction to South Africa launching its case. “South Africa’s hypocrisy screams to the high heavens.”

The ICJ’s rulings are legally binding, but require U.N. Security Council resolutions for there to be genuine mechanisms, like sanctions, to implement them — something that’s unlikely in this context given the United States’ long-standing practice of shielding Israel from international censure. But the fact that Israel has participated vigorously in the proceedings may mean it could find it harder to shrug off a ruling it does not like. South African foreign minister Naledi Pandor will be present at the court on Friday — a sign, perhaps, of Pretoria’s confidence in its argument.

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In a filing with the ICJ, South Africa accused Israel of “genocidal intent,” pointing to statements by top officials. Israel denies the allegations. (Video: Joy Yi/The Washington Post)

What to know about the genocide case against Israel at the ICJ

South Africa’s team of lawyers laid out their argument before the court two weeks ago. More than 100 days of fighting have seen more than 25,000 Palestinians killed — the majority of whom are women and children — led to more than 85 percent of Gaza’s population being driven from their homes, and triggered a potential famine and humanitarian crisis whose combined speed, scale and severity, argue international aid groups, is unprecedented in modern memory.

“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said South African lawyer Tembeka Ngcukaitobi.

My colleagues summarized the case: “South Africa points to Israel’s large-scale killing and maiming of civilians; its use of ‘dumb’ bombs; the mass displacement and the destruction of neighborhoods; ‘deprivation of access to adequate food and water,’ medical care, shelter, clothes, hygiene and sanitation to civilians; its obliteration of Palestinian civic institutions; and its failure to provide any place of safety for Gazans. South Africa also accuses Israel of preventing Palestinian births by displacing pregnant people, denying them access to food, water and care, and killing them.”

South Africa’s lawyers also presented a voluminous scroll of statements from Israeli officials and politicians that appeared to prove the “genocidal” intent of Israeli actions — including calls for Gaza’s annihilation and the wholesale displacement of Palestinians living there. In response, Israel argued that these quotes were cherry-picked, articulated in a moment of trauma and anger in Israeli society, and did not reflect the official policy of the country’s war cabinet.

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As the case gets litigated, it also has tapped into a pronounced global divide. South Africa is spearheading the charge against Israel out of a sense historic commitment to the Palestinian people, who, South African officials contend, are subject to a regime of 21st century apartheid not wholly dissimilar to what existed in 20th century South Africa. “Like us,” Nelson Mandela said in 1990, “the Palestinians are fighting for the right to self-determination.”

“The significance of the fact that the country bringing the case is South Africa — an icon of the ravages of colonialism, settlement and apartheid — cannot be lost on anyone,” wrote Nesrine Malik, a Sudanese-British columnist for the Guardian. “It symbolizes a vast racial injustice, too raw and recent to be dismissed as ancient history.”

Western commentators have been quick to point out the supposed hypocrisy in South Africa’s position, given its government’s cozy relationship with Russia and seeming indifference to the Kremlin’s allegedly genocidal campaigns in Ukraine. But that example is already a source of frustration for many countries outside the West, which see a pronounced gap in between American and European outrage over Russian war crimes in Ukraine and their complicity in the destruction of Gaza.

“It is the complaint of the Global South against Western criteria of moral superiority,” noted Le Monde’s Sylvie Kauffmann. “It calls into question an international order established by the defendant’s most powerful ally, the United States. It is also a challenge to a collective memory dominated by the Holocaust, which is openly opposed to that of colonization.”

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And South Africa is not alone. Lining up behind it are a cast of countries from the so-called Global South — from Brazil to Turkey, Colombia to Bangladesh. Countries like Chile and Mexico have also referred alleged Israeli crimes for investigation by the International Criminal Court. According to a tally by Sarang Shidore and Dan Ford of the Quincy Institute, governments that represent some 60 percent of the population of “Global South” countries are now either leading or backing international legal action against Israel.

When Germany signaled that it would present a third-party defense of Israel at the ICJ, claiming that South Africa’s case had “no basis,” it triggered an outraged objection from Namibia — a former German colony that experienced what’s now recognized as the 20th century’s first genocide at the hands of German colonial authorities. It speaks volumes of the global moment that a war in the Middle East can stir historical animosities continents away.

“Few conflicts in the world have such global reverberations as this one. … All over the world people have a position on this,” Dahlia Scheindlin, a Tel Aviv-based political analyst, told the Financial Times. “So I can imagine any decision by the court is going to inflame both sides in one way or the other.”

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