The story behind South Africa taking Israel to court
'A case that underscores the very essence of our shared humanity'.
South Africa has brought a landmark case against Israel to the UN’s International Court of Justice (ICJ) in The Hague.
The submission accuses Israel of committing genocide against Palestinians in Gaza, and claims that Israel has broken its commitment to the UN Genocide Convention.
South Africa has asked the court to take ‘provisional measures to protect the rights’ of Palestinians in Gaza. This means that Israel could be ordered to halt military operations in the besieged enclave.
The hearing kicked off on Thursday in the Hague, Netherlands. South Africa will present its case today, and Israel its defense on Friday.
In a powerful statement that has gone viral on social media, an Irish lawyer speaking for South Africa told the court that the conflict in Gaza is the ‘first genocide in history’ being broadcast in ‘real-time’.
Addressing the room, Blinne Ní Ghrálaigh said: ‘Yet more Palestinian children will become WCNSF. Wounded Child, No Surviving Family. The terrible new acronym born out of Israel’s genocidal assault on the Palestinian population in Gaza.’
As she spoke, Ní Ghrálaigh held up two photos from a hospital in Gaza. The first showed a message written by a doctor on a whiteboard.
‘We did what we could. Remember us,’ the message read.
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The second image showed the same whiteboard, obliterated after an Israeli strike on the hospital. The doctor who wrote it was killed in the attack.
South Africa’s case is against the State of Israel, rather than against any individuals or government, and it is not a criminal trial.
But how did the two countries end up here?
Why is South Africa taking Israel to court?
South Africa is urging the ICJ to act to ‘protect against further severe and irreparable harm to the rights of the Palestinian people under the genocide convention, which continues to be violated with impunity’.
Israel has defended its actions in Gaza, saying strikes and a ground incursion into the Strip is a direct response to Hamas’s deadly attack on 7 October.
240 people were taken hostage by Hamas in the 7 October attacks on southern Israeli kibbutzim and the Supernova music festival. 132 hostages remain in captivity or are unaccounted for.
Gaza’s Hamas-run health ministry says Israel has killed more than 23,000 Palestinians since the militants’ attack. The majority of those killed have been civilians.
At least 300 healthcare workers have been killed in the conflict, according to UN figures.
Investigations by the Committee to Protect Journalists found that 79 journalists have been killed in Gaza since the 7 October attacks, with a further three reported missing.
South Africa has submitted an 84-page legal document outlining its case.
The document alleges that ‘Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza’.
It adds: ‘Those acts include killing them, causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group.’
South Africa has historic links to Palestine. When the African National Congress (ANC) came to power following the end of apartheid in 1994, it established strong diplomatic relations with Palestine.
Nelson Mandela, South Africa’s first post-apartheid president, said in 1997 that ‘we know all too well that our freedom is incomplete without the freedom of the Palestinians’.
What was apartheid?
The word apartheid comes from the Afrikaans word ‘apartness’.
Apartheid was a racial segregation system introduced in South Africa in 1948.
Under apartheid laws, different racial groups were forced to live in separate areas. Many black people were forced out of their homes and were forbidden from owning property.
Transport, education and health systems were also segregated.
There was strong opposition to apartheid. In 1960, 69 people were killed at an anti-apartheid demonstration in Sharpeville.
Apartheid came to an end in South Africa in 1994, when the African National Congress (ANC) came to power.
The current South African government condemned Hamas’s attack on 7 October, while also expressing support for Palestinians in Gaza.
South African Foreign Minister Naledi Pandor delivered a statement on the conflict, saying: ‘We, who enjoy the freedom from Apartheid, can never, ever be the ones who agree to an apartheid form of oppression. This cannot be tolerated. This brutality should not be accepted.’
Definition of genocide
Genocide is defined as the act of killing a large number of people with the intent to destroy a particular national, ethnical, racial or religious group.
According to the United Nations definition, genocide may also involve causing serious bodily or mental harm to the group, deliberately inflicting conditions, such as depriving access to water, that could bring about the group’s destruction, preventing births within the group, and forcibly transferring children to another group.
The Genocide Convention was adopted by the UN in 1948 following the Second World War. Both Israel and South Africa are signatories, which commits both states to prevent genocide.
Responding to the ICJ court case, Israeli president Benjamin Netanyahu said: ‘No, South Africa, it is not we who have come to perpetrate genocide, it is Hamas.’
What is the International Court of Justice?
The International Court of Justice (ICJ) is in the Hague in the Netherlands.
It is the UN’s top court. However, its sentencing is not enforceable.
In 2022, the ICJ ordered Russia to ‘immediately suspend’ its military operation in Ukraine. This order was ignored.
It is the International Criminal Court that has the power to prosecute individuals for crimes such as genocide. However the ICJ’s opinions do carry weight with the UN and other international institutions.
Why is this case happening now?
South Africa brought the case to the ICJ on 29 December, 2023 in a bid to stop Israel’s bombardment of Gaza.
Initial proceedings are expected to last a few weeks, with a sentencing expected within a month.
The ICJ could then rule on South Africa’s request for Israel to suspend its military campaign, but a final ruling on whether Israel is committing genocide could take years.
Blinne Ní Ghrálaigh's closing statement in full
‘Madam President, Members of the Court, in conclusion I share with you two photographs. The first is of a white board at a hospital — in Northern Gaza — one of the many Palestinian hospitals targeted, besieged, bombed by Israel over the course of the past three brutal months.
The white board is wiped clean of no longer possible surgical cases, leaving only a hand-written message by a Médecins Sans Frontières doctor which reads:
‘We did what we could. Remember us.’
The second is of the same whiteboard, after an Israeli strike on the hospital on 21 November 2023 that killed the author of the message, Dr Mahmoud Abu Nujaila, along with two of his colleagues.
Just over a month later, in a powerful Christmas Day sermon, delivered from a church in Bethlehem — on the same day Israel had killed 250 Palestinians, including at least 86 people, many from the same family, massacred in a single strike on Maghazi Refugee Camp — Palestinian Pastor Munther Isaac addressed his congregation and the world.
He said: ‘Gaza as we know it no longer exists. This is an annihilation. This is a genocide. We will rise. We will stand up again from the midst of destruction, as we have always done as Palestinians, although this is by far maybe the biggest blow we have received.’
But he said: ‘No apologies will be accepted after the genocide . . . What has been done has been done. I want you to look at the mirror and ask, ‘where was I when Gaza was going through a genocide’.’
South Africa is here before this Court, in the Peace Palace. It has done what it could. It is doing what it can, by initiating these proceedings, by seeking interim measures against itself as well as against Israel.
South Africa now respectfully and humbly calls on this honourable Court to do what is in its power to do, to indicate the provisional measures that are so urgently required to prevent further irreparable harm to the Palestinian people in Gaza, whose hopes — including for their very survival — are now vested in the Court.’
Who is John Dugard?
John Dugard, a South African professor of international law, is a member of the South African prosecution team. He previously served as an ICJ ad hoc judge in 2008.
In 2007, Dugard, who lived through apartheid in South Africa, likened Israel’s laws and practices to ‘aspects of apartheid’.
Who is Adila Hassim?
Working alongside Dugard on South Africa’s team is Adila Hassim, a lawyer with a legal career that spans more than two decades.
She is the co-found of Section27, a human rights organisation fighting for access to healthcare and education in South Africa.
Hassim also co-founded Corruption Watch, which monitors corruption in South Africa.
Speaking at the court today, Hassim described the submission as ‘a case that underscores the very essence of our shared humanity’.
She added: ‘As the UN Secretary General explained five weeks ago, the level of Israel’s killing is so excessive that nowhere is safe in Gaza.’
Who else is representing South Africa at the ICJ?
Tembeka Ngcukaitobi and Professor Max Du Plessis are also serving on South Africa’s legal team.
Who is Malcolm Shaw?
Malcolm Shaw is a British lawyer and academic who is representing Israel.
Shaw has previously represented Ukraine, the United Arab Emirates and Cameroon in the international court.
He specialises in territorial law and human rights.
Who is Aharon Barak?
Aharon Barak is Israel’s former Supreme Court president.
He was named as Israel’s appointee to the 15-judge panel during the court hearing. South Africa also has a representative on the panel.
The 87-year-old is a Holocaust survivor.
Where to watch the trial
The South Africa v Israel case is being livestreamed on UN Web TV. You can watch it here.
