A new legal battle will be waged later this week in the World Court to impose a ceasefire more than three months after Hamas' attack on southern Israel killed innocent civilians, triggering a brutal war in Gaza where Israel vowed to eradicate Hamas militants.
South Africa is accusing Israel of violating its obligations under the Genocide Convention and is seeking an urgent order from the International Court of Justice (ICJ) to immediately halt what it characterizes as "genocidal acts against the Palestinian people in Gaza."
In its lawsuit, South Africa is seeking a provisional order from the ICJ for the State of Israel to "immediately suspend its military operations in and against Gaza."
International law experts interviewed by CTV National News say this case may not meet the high bar of proving intent to commit genocide, but will put more pressure on Israel to end its war.
The Genocide Convention has been ratified by 153 countries, including Canada and the United States.
Israel is also a signatory to the international treaty, and will defend itself against the allegations at hearings scheduled for Jan. 11 and 12 in The Hague, Netherlands.
Israeli government spokesperson Eylon Levy called South Africa's legal claim "an absurd blood libel," that helps Hamas' cause.
"In giving political and legal cover to the October 7 massacre and the Hamas human shield strategy, South Africa has made itself criminally complicit with Hamas' campaign of genocide against our people," Levy said last week.
In a video posted on social media platform "X", Levy said Israel spent weeks urging civilians in northern Gaza to evacuate before it began its ground offensive.
"To warn civilians we placed over 70,000 phone calls, and sent 13 million text messages and left 14 million voice messages and dropped nearly 7 million leaflets," Levy said.
In its 84-page claim, South Africa accuses Israel of committing genocide, failing to prevent it and public incitement of genocide.
Holger Hestermeyer, chair of international and European Union law at the Vienna School of International Studies told CTV National News that South Africa's case is "substantive" and will have "enormous impact" on the debate over Israel's right to defend itself.
Hamas, a militant group deemed a terrorist organization by the Canadian government, in its founding doctrine has committed to the destruction of Israel.
Hamas launched a surprise attack against Israel on the morning of Oct. 7, beginning with a barrage of rockets followed by raids on border communities and attacks on civilians. Israeli officials said some 1,200 people were killed and 240 people were taken hostage that day.
Israel will argue that a ceasefire will prevent it from protecting its citizens.
"The judgment of the court will sway opinions in other countries," Hestermeyer said. "We are in a difficult situation. Nobody wants to see anything like October 7 again, but it doesn't mean you can do anything that you want to do against these terrorist acts."
The Hamas-run health ministry in Gaza said the death toll in the region has surpassed 22,000 and nearly 60,000 Palestinians have been wounded. The figures don't distinguish between fighters and civilians, but the health ministry estimates two-thirds of those killed are women and children. Most of the casualties were the result of airstrikes.
There is debate among legal scholars as to whether or not Israel's actions meet the definition of genocide.
Noah Weisbord, an associate professor at McGill University's Faculty of Law told CTV National News proving genocide is "a very high bar," and requires South Africa to show that Israel is "intending to destroy the Palestinians, not just culturally but also biologically and physically."
Wiesbord said South African prosecutors must also demonstrate that Israel's actions are beyond attacking the civilian population or trying to drive them out of the territory, but "actual attempts like the Nazis did against the Jews in World War II to wipe them off the face of the map."
The Genocide Convention was adopted by the United Nations in 1948, mainly in response to the Holocaust.
Jane Boulden, an international relations and security expert at Queen's University told CTV National News that South Africa will use the rhetoric of some Israeli politicians calling for the removal of Palestinians to bolster its argument of intent.
Boulden said the World Court could also choose to define genocide more broadly by asking "whether in targeting Hamas in Gaza and not allowing Gazans to flee that territory - is Israel in effect engaging in acts of genocide?"
With an area of 365 square kilometres, the Gaza Strip is half the size of Toronto. Satellite imagery shows that most of northern Gaza has been reduced to rubble by Israeli airstrikes and more than two million people have been displaced. They are crowded into southern Gaza and forced to seek refuge in shrinking areas Israel has designated safe from airstrikes. Palestinians cannot flee to neighbouring countries, as border crossings are closed.
Boulden said the international court in making its assessment could also take into account other widely accepted examples of genocide including the ethnic cleansing of Tutsis in Rwanda or the explosion of violence initiated by the Khmer Rouge in Cambodia, which displaced city dwellers and educated people to the countryside in an attempt to create a classless agrarian society.
While the prosecution of Israel's alleged violation of the Genocide Convention will take years, the ICJ could issue urgent provisional orders within weeks of the hearings if it is persuaded a risk of genocide exists.
Alex Neve, a human rights advocate and a senior fellow with the University of Ottawa's Graduate School of Public and International Affairs told CTV National News he applauds South Africa for launching its legal battle.
Neve said Israel has "undermined, violated and cavalierly disregarded the fundamental norms of international human rights law" in its mission against Hamas.
But even if the ICJ orders a ceasefire, there is no mechanism in place to enforce it. Enforcement requires approval by the five permanent members of the UN Security Council.
China, Russia, France, Britain and the United States all have veto power.
The Biden Administration supports Israel and said it is not engaged in genocide.
U.S. National Security Council spokesman John Kirby has called South Africa's submission meritless, "counterproductive and completely without any basis in fact whatsoever."
"Genocide is, of course, a heinous atrocity, one of the most heinous atrocities that any individual can commit," Matthew Miller, spokesperson for the U.S. State Department said, adding those are allegations that "should not be made lightly."
However, Miller said the U.S. is "not seeing any acts that constitute genocide" in the Israel-Hamas war.
In 2022 Russia also ignored an ICJ provisional order under the Genocide Convention to stop its war against Ukraine.
But Neve said South Africa's legal fight is not futile because it is building pressure on nations that are strong supporters of global law to find a resolution to the conflict.
"We are on the road toward genocide and that's why meaningful action to prevent it must be taken," Neve said.
A coalition of more than 100 human rights groups across the globe has formed calling on other nations to support South Africa's claim.
Last Thursday, Canadians for Justice and Peace in the Middle East (CJPME) sent a letter to Foreign Minister Melanie Joly, calling on the federal government to support South Africa's application at the World Court.
"As a signatory to the Genocide Convention, Canada has an obligation and a duty to prevent and punish the crime of genocide wherever it occurs," wrote Michael Bueckert, vice-president of CJPME.
Ahead of the hearings, the governments of Malaysia, Turkiye and Jordan have endorsed South Africa's claim.
Read South Africa's submission to the World Court below
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