What is genocide and how hard is it to prove?

The International Court of Justice (ICJ) has been hearing a case in which South Africa is demanding an emergency suspension of Israel's military campaign in Gaza, where it says genocide has been committed against Palestinians. Israel has insisted it makes the utmost efforts to avoid civilian casualties, while Netanyahu said his country would maintain the right to defend itself until it had achieved "total victory" over Hamas.

In two days of hearings, the World Court, as the ICJ is also known, heard the South African and Israeli arguments. A ruling on the emergency measures is expected later in January. The ruling over genocide allegations could take years.

WHAT IS THE ICJ?

The ICJ is the UN's highest legal body, established in 1945 to deal with disputes between states. It should not be confused with the treaty-based International Criminal Court, also in The Hague, which handles war crimes cases against individuals.

The ICJ's 15-judge panel - which will be expanded by an additional judge from each side in the Israel case - deals with border disputes and increasingly cases brought by states accusing others of breaking UN treaty obligations.

Both South Africa and Israel are signatories to the 1948 Genocide Convention which gives the ICJ the jurisdiction to rule on disputes over the treaty. While the case revolves around the occupied Palestinian territories, Palestinians have no official role in the proceedings because they are not a UN member state.

All states that signed the Genocide Convention are obliged not to commit genocide and also to prevent and punish it. 

WHAT IS GENOCIDE?

The 1948 Genocide Convention defines genocide as crimes committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."

Examples include:

• Killing members of a group

• Causing serious bodily or mental harm to members of the group

• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

• Imposing measures intended to prevent births within the group

• Forcibly transferring children of the group to another group.

According to the UN, Polish lawyer Raphael Lemkin first used the word 'genocide' in 1944 in his book Axis Rule in Occupied Europe The word consists of the Greek prefix 'genos,' which means race or tribe, and the Latin suffix 'cide,' which means killing. 

Lemkin used the term genocide in response to the "systematic" murder of Jews during the Holocaust, as well as historical targeted actions against specific groups of people. 

WHAT MUST PROSECUTORS DO?

To establish genocide, prosecutors must first show that the victims were part of a distinct national, ethnic, racial or religious group. This excludes groups targeted for political beliefs.

Genocide is harder to show than other violations of international humanitarian law, such as war crimes and crimes against humanity, because it requires evidence of specific intent to destroy group. It is not sufficient to rely on individual incidents unless they can be linked to a wider plan to eliminate a group of people.

"Genocide is a difficult crime to prove. Parties have to bring a lot to the table," said Melanie O'Brien, president of the International Association of Genocide Scholars. 

O'Brien cited the combined requirement of showing intent, the targeting of a protected group, and crimes like killings or forcibly removing children.

WHAT IS SOUTH AFRICA'S CASE?

In its 84-page filing South Africa says that by killing Palestinians in Gaza, causing them serious mental and bodily harm and by creating conditions on life "calculated to bring about their physical destruction", Israel is committing genocide against them.

It lists Israel's failure to provide essential food, water, medicine, fuel, shelter and other humanitarian assistance to the Gaza strip during the war with Hamas. It also points to the sustained bombing campaign which has laid much of the enclave to waste, forced the evacuation of 1.9 million Palestinians and killed over 23,000 people, according to Gaza health authorities.

"The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention," the filing says, adding that Israel also failed to curb incitement to genocide by its own officials in violation of the convention. It asked the court to impose emergency measures to cease alleged violations by Israel.

South Africa has been highly critical of Israel's military operation in Gaza, and its governing African National Congress has a long history of solidarity with the Palestinian cause.

It sees parallels with its struggle against apartheid - a policy of racial segregation and discrimination enforced by the white-minority government in South Africa against the country's black majority, until the first democratic elections, in 1994.

WHAT IS ISRAEL'S RESPONSE?

Israel on Friday rejected as false and "grossly distorted" accusations brought by South Africa that its military operation in Gaza is a state-led genocide campaign against Palestinians. 

Arguing it was acting to defend itself and was fighting Hamas, not the Palestinian population, Israel called for the case to be dismissed as groundless and for the court to reject South Africa's request to order it to halt the offensive. "This is no genocide," lawyer Malcolm Shaw said.

The Israeli offensive was triggered by the October 7, 2023 cross-border Hamas attacks in which Islamist fighters killed 1,200 people and abducted 240, according to Israeli figures. In Gaza, more than 23,350 people - mostly women and children - have been killed, according to the Hamas-run health ministry.

Israel, its defense team argued, was doing what it could to alleviate the humanitarian suffering in Gaza, including efforts to urge Palestinians to evacuate.

WHEN WILL THE FINAL RULING BE AFTER THE OPENING HEARINGS?

The opening hearings were heard on January 11 and 12. South Africa and Israel had two hours each on these separate days to make their case for or against emergency measures. There was no witness testimony and no cross-examinations. The presentation was mostly legal arguments brought by state officials and their teams of international lawyers.

The request for emergency measures is a first step in a case that will take several years to complete. Formally called provisional measures, they are meant as a kind of restraining order to prevent a dispute from getting worse while the court looks at the full case.

The court will not make a final determination on South Africa's genocide allegations until a hearing of the case on the merits, which is likely years away.

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For provisional measures the court only has to decide if at first glance, or prima facie, it would have jurisdiction and the acts complained of could fall within the scope of the genocide treaty. Any measures it decides would not necessarily be those requested by the complainant.

If the court finds it has prima facie jurisdiction, the case will move forward at the ornate Peace Palace in The Hague - even if the judges decide against emergency measures. Israel would then get another chance to argue the court has no legal grounds to look at South Africa's claim and to file a so-called preliminary objection - which can only touch on issues of jurisdiction. 

If the court rejects that objection, the judges could finally look at the case in further public hearings. It is not unusual for several years to pass between the initial claim and the actual hearing of the case on its merits.

South Africa has asked the court to order Israel to suspend its military actions in Gaza, to stop any genocidal acts or take reasonable measures to prevent genocide and issue regular reports to the ICJ about such measures. A decision on the measures is expected in the next few weeks. 

HAVE THERE BEEN OTHER CASES OF GENOCIDE?

1) The 1994 mass killing of Tutsis in Rwanda that left 800,000 dead.

When former Rwandan Mayor Jean-Paul Akayesu was found guilty of the crime in 1998, the court became the first international tribunal to interpret the definition of genocide set forth in the 1948 Genocide Convention. Dozens of senior officials, all of them Hutus, were convicted of genocide against Tutsis.

2) The Cambodian Khmer Rouge's slaughter of minority Cham people and Vietnamese in the 1970s, who were among an estimated 1.7 million dead.

In 2018, a hybrid UN-Cambodian tribunal found two leaders of the Khmer Rouge guilty of genocide following years of debate about whether the "Killing Fields" constituted genocide. 

3) The 1995 Srebrenica massacre of 8,000 Muslim men and boys in Bosnia.

The tribunal for the former Yugoslavia convicted several key figures for their roles during the Balkan wars of the 1990s. They include wartime Bosnian Serb military commander Ratko Mladic and Bosnian Serb political leader Radovan Karadzic. Former Yugoslav President Slobodan Milosevic died in custody before his genocide trial concluded.

WHAT OTHER CASES ARE HAPPENING NOW?

The World Court is currently hearing two cases. One is claiming Myanmar committed genocide against Rohingya Muslims. The other brought by Ukraine argues Russia is using accusations of genocide as a false pretext for the conflict.

Such cases can generally take years to reach a verdict. Moscow, which called the attack against its smaller neighbor 'a special operation' to halt genocide against Russian speakers in Ukraine, says the West has faked evidence to smear its army. 

Former Sudanese President Omar al-Bashir was accused of genocide and as an individual, the International Criminal Court issued an arrest warrant against him in 2009, but his trial cannot begin until he is in custody in The Hague and some signatory states of the ICC have refused to arrest him including South Africa, Jordan and Chad.

WHAT SIGNIFICANCE WILL A RULING HAVE?

The court's ruling is final and cannot be appealed against. However, it cannot enforce its decisions and it is not clear that Israel would comply with it. 

But an adverse ruling would be detrimental to Israel's reputation and set legal precedent. The Hague cannot enforce its decisions and it is possible that Israel could ignore an adverse judgment, but that would only fuel further international condemnation of its military campaign.

A ruling in favor of South Africa could lead to the International Criminal Court considering prosecuting individuals from Israel.

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