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The Guardian is reporting that South Africa filed a brief to the International Court of Justice under the 1948 Convention on the Prevention and Punishment of Genocide. The brief does not actually accuse Israel of the crime of genocide but talks rather of acts on the “threshold” of genocide. The brief reads:

“South Africa is gravely concerned with the plight of civilians caught in the present Israeli attacks on the Gaza Strip due to the indiscriminate use of force and forcible removal of inhabitants. Furthermore, there are ongoing reports of international crimes, such as crimes against humanity and war crimes, being committed as well as reports that acts meeting the threshold of genocide or related crimes as defined in the 1948 Convention on the Prevention and Punishment of Genocide, have been and may still be committed in the context of the ongoing massacres in Gaza.

“South Africa has repeatedly stated that it condemns all violence and attacks against all civilians, including Israelis. Moreover, South Africa has continuously called for an immediate and permanent ceasefire and the resumption of talks that will end the violence arising from the continued belligerent occupation of Palestine.

“As a State Party to the Convention on the Prevention and Punishment of the Crime of Genocide, South Africa is under a treaty obligation to prevent genocide from occurring.

“Therefore, at a special meeting held on 8 December 2023, Cabinet directed that the International Court of Justice in The Hague be approached to obtain an order directing Israel, which is also a State Party, to refrain from any acts that may constitute genocide or related crimes under the Convention. An application in this regard was filed before the Court on 29 December 2023 in which the Court is requested to declare on an urgent basis that Israel is in breach of its obligations in terms of the Genocide Convention, should immediately cease all acts and measures in breach of those obligations and take a number of related actions.”

Needless to say, Israel strongly condemned the move. In an X (formerly known as Twitter) post, Lior Haiat, a spokesperson for the Israeli foreign ministry, argued that:

“Israel rejects with disgust the blood libel spread by South Africa in its application to the International Court of Justice (ICJ).

“South Africa’s claim lacks both a factual and a legal basis, and constitutes a despicable and contemptuous exploitation of the Court.

“South Africa is cooperating with a terrorist organization that is calling for the destruction of the State of Israel.

“The Hamas terrorist organization – which is committing war crimes, crimes against humanity and sought to commit genocide on 7 October – is responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them.

“Israel is committed to international law and acts in accordance with it, and directs its military efforts solely against the Hamas terrorist organization and the other terrorist organizations cooperating with Hamas.

“Israel has made it clear that the residents of the Gaza Strip are not the enemy, and is making every effort to limit harm to civilians and to facilitate the entry of humanitarian aid to the Gaza Strip.

“We call on the International Court of Justice and the international community to completely reject South Africa’s baseless claims.”

It is difficult to imagine a more incendiary claim to the Israelis than the charge of genocide. Moreover, the historical record of conflicts being labelled “genocide” by an International tribunal is thin despite a number of cases in which the word has been applied by observers in the 20th century: The Armenian case in 1915; the Holodomor of the Ukrainian people launched by the Soviet Union in 1932-33; the Holocaust against Jews in Europe during World War II; the war by Pakistan against the independence of Bangladesh in 1971; the Cambodian genocide prosecuted by the Khmer Rouge in 1975-79; the Bosnian conflict in 1992-95; the Tutsi genocide in Rwanda in 1994; and the ongoing genocide against the Royhingya in Myanmar. Only the Holocaust against the Jews in Europe during World War II has ever been judged genocide by an International tribunal.

Interestingly, as I write this post, major news outlets in the US, such as the New York TImes and the Washington Post, have yet to use a headline to announce this news. That delay (of about 4 hours) suggests that sensitivities in the US will require a very careful vetting of the news. Nonetheless, other outlets, such as the Hindustan Times and Reuters, have made the story quite prominent on their web pages.

I suspect that this case will move very slowly in the International Court of Justice so there is little immediate legal action likely (although a ceasefire is urgently needed and way overdue). But the pressure on Israel and the US will become even more intense. The Israelis try very hard to conform to the laws of war, but their rules of engagement are too relaxed. Using 2000 lb bombs near hospitals is a war crime, even if the enemy has tunnels near or under the buildings–the presumed benefit of killing a few of the enemy is far outweighed by the clear harms to people who are vulnerable and are not in the building by choice. The stunning estimate that 70% of the dead in the Gaza are women and children suggests that the distinction between combatants and non-combatants is not being rigorously enforced.

A major determinant of how this war will be judged is how the conflict finally ends. If it turns out that many Palestinians are permanently displaced and that some Israelis try to establish settlements in the Gaza, then the judgment will be harsh and unforgiving.