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A legal battle is set to open at the top UN court over an allegation of Israeli genocide in Gaza

A legal battle over whether Israel’s war against Hamas in Gaza amounts to genocide opens Thursday at the United Nations’ top court

Mike Corder
Wednesday 10 January 2024 12:37 GMT

A legal battle over whether Israel's war against Hamas in Gaza amounts to genocide opens Thursday at the United Nations' top court with preliminary hearings into South Africa's call for judges to order an immediate suspension of Israel's military actions. Israel stringently denies the genocide allegation.

The case, that is likely to take years to resolve, strikes at the heart of Israel's national identity as a Jewish state created in the aftermath of the Nazi genocide in the Holocaust.

Israel normally considers U.N. and international tribunals unfair and biased. But it is sending a strong legal team to the International Court of Justice to defend its military operation launched in the aftermath of the Oct. 7 attacks by Hamas.

“I think they have come because they want to be exonerated and think they can successfully resist the accusation of genocide,” said Juliette McIntyre, an expert on international law at the University of South Australia.

Two days of preliminary hearings at the International Court of Justice begin with lawyers for South Africa explaining to judges why the country — long a supporter of the Palestinian cause — has accused Israel of “acts and omissions" that are “genocidal in character” in the Gaza war and has called for an immediate halt to Israel's military actions.

Thursday’s opening hearing is focused on South Africa’s request for the court to impose binding interim orders including that Israel halt its military campaign. A decision will likely take weeks.

Israel’s offensive has killed more than 23,200 Palestinians in Gaza, according to the Health Ministry in Hamas-run Gaza. About two-thirds of the dead are women and children, health officials say. The death toll does not distinguish between combatants and civilians.

In the Oct. 7 attack, in which Hamas overwhelmed Israel’s defenses and stormed through several communities, Palestinian militants killed some 1,200 people, mainly civilians. They abducted around 250 others, nearly half of whom have been released.

U.S. Secretary of State Antony Blinken dismissed the case as “ meritless ” during a visit to Tel Aviv on Tuesday.

“It is particularly galling, given that those who are attacking Israel — Hamas, Hezbollah, the Houthis, as well as their supporter Iran — continue to call for the annihilation of Israel and the mass murder of Jews,” he said.

The world court, which rules on disputes between nations, has never adjudged a country to be responsible for genocide. The closest it came was in 2007 when it ruled that Serbia “violated the obligation to prevent genocide" in the July 1995 massacre by Bosnian Serb forces of more than 8,000 Muslim men and boys in the Bosnian enclave of Srebrenica.

South Africa “will have a hard time getting over the threshold” of proving genocide, said McIntyre.

“It’s not simply a matter of killing enormous numbers of people,” she added in an email to The Associated Press. “There must be an intent to destroy a group of people (classified by race or religion for example) in whole or in part, in a particular place.”

In a detailed, 84-page document launching the case late last year, South Africa alleges that Israel has demonstrated that intent.

Israel responded by insisting it operates according to international law and focuses its military actions solely against Hamas, adding that the residents of Gaza are not an enemy. It asserted that it takes steps to minimize harm to civilians and to allow humanitarian aid to enter the territory.

An Israeli Foreign Ministry statement called South Africa’s case a “despicable and contemptuous exploitation” of the court.

The ICJ case revolves around the genocide convention that was drawn up in 1948 in the aftermath of World War II and the murder of 6 million Jews in the Holocaust. Both Israel and South Africa are signatories.

In its written filing, South Africa says it went to the court “to establish Israel’s responsibility for violations of the Genocide Convention; to hold it fully accountable under international law for those violations" and to "ensure the urgent and fullest possible protection for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of genocide.”

A team of lawyers representing South Africa will present three hours of arguments in the wood-paneled Great Hall of Justice at the world court on. Israel's legal team will have three hours on Friday morning to refute the allegations.

Among South Africa's delegation will be former U.K. opposition leader Jeremy Corbyn, whose leadership of the left-of-center Labour Party was stained by allegations of antisemitism. He is a longtime supporter of the Palestinian cause and a fierce critic of Israel.

Human Rights Watch said the hearings will provide scrutiny in a U.N. courtroom of Israel's actions.

“South Africa’s genocide case unlocks a legal process at the world’s highest court to credibly examine Israel’s conduct in Gaza in the hopes of curtailing further suffering,” said Balkees Jarrah, the group's associate international justice director.

The U.N. court, headquartered in the ornate Peace Palace in a leafy suburb of The Hague, deals with disputes between nations. The International Criminal Court, based a few miles (kilometers) away in the same Dutch city, prosecutes individuals for war crimes, crimes against humanity and genocide.

Israel is back on the ICJ docket next month, when hearings open into a U.N. request for a non-binding advisory opinion on the legality of Israeli policies in the occupied West Bank and east Jerusalem.

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