THE HAGUE - South Africa accused Israel of committing genocide at the opening of the International Court of Justice case it brought over the Gaza war.
Pretoria argues Israel is seeking to “destroy Palestinians in Gaza,” an accusation Israel vehemently denies, calling it a “blood libel.” Both sides have deployed high-profile attorneys, and each have a representative on an expanded, 17-member panel of judges.
Tembeka Ngcukaitobi, advocate of the High Court of South Africa, told the court Israel’s “genocidal intent” was evident from the way the military attack is being conducted. “The intent to destroy Gaza has been nurtured at the highest level of state,” he said.
Israel responded by accusing South Africa of serving as the “legal arm” of militant group Hamas. A foreign ministry spokesman called Pretoria’s case “one of the greatest shows of hypocrisy in history.”
Though the case could take years, the ICJ may issue provisional measures demanding Israel stop its assault in Gaza, which has left more than 23,000 people dead according to the enclave’s authorities who are governed by Hamas.
Israel launched its offensive in Gaza after the Oct. 7 attacks by Hamas militants in which Israeli officials said 1,200 people were killed and more than 200 were taken hostage back to Gaza. It has stated that it has waged war against Hamas and not Palestinian people.
The case carries huge symbolic weight. On one side, Israel’s founding came in the wake of the killing of six million Jews in the Holocaust. On the other, South Africa sees parallels between apartheid and Israel’s treatment of Palestinians.
The legacy of apartheid also weighs heavily in another way. Palestinians supported South Africa’s governing African National Congress (ANC) when it was a banned movement waging an armed struggle against the system of segregation under white minority rule, whereas Israel sold arms to the apartheid government. That close military alliance even included collaboration on nuclear weapons.
The 15 judges that will meet in the Hague are eminent jurists, but their role is political, not legal.
They will vote the way their country tells them to vote, not upon conclusions drawn from the proceedings. They were selected by their respective countries on that basis, and elected by a majority vote of the UN General Assembly and Security Council.
It is an odd combination. In the General Assembly, each member has one vote, and in the Security Council, each member also gets one vote. But since all the countries on the Security Council are already represented in the General Assembly, when they vote for judges in the ICJ, they get two votes. And since five members of the SC are permanent, they permanently have two votes.
In addition, the absolute majority requirement means that only the most powerful and influential nations can cajole, influence, threaten or bribe enough votes to meet the requirement. Generally speaking, this means that the US can command enough votes in the court to control most of the decisions of consequence. The haggling is almost certainly taking place right now, before the court has even heard the case.
Of course, the US doesn’t control every vote. The judges from China, Russia, Slovakia, Lebanon, Somalia and Morocco, for example, are unlikely to take orders from the US on this issue. But neither are they likely to vote on the basis of law or evidence. They will vote according to what they believe to be in their country’s interest. If it happens to accord with the evidence, so much the better for justice. But, barring one or more renegade votes, justice will be coincidental.
The ICJ is an independent court based in The Hague charged with settling international legal disputes between states. This is not the International Criminal Court (the ICC, also based in The Hague), which can deal with individual responsibility for atrocity crimes. The ICJ addresses issues that are one state against another, and this case seeks a legal determination of state responsibility for genocide.
