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Lawyers seeking to halt Israel’s offensive in Gaza hope tactics that swayed judges on Myanmar's alleged genocide of Rohingya Muslims will prevail again as the Middle East conflict enters court in The Hague.
Arguments to restrain Israel that will be heard by the International Court of Justice this week are similar to those deployed by western countries against Myanmar.
Two days of initial hearings will begin on Thursday after South Africa took Israel to the ICJ, claiming aspects of its assault on Hamas are “genocidal in character”.
Although it could take years for a full verdict, South Africa is asking for emergency measures in which Israel is ordered to call off its campaign.
The ICJ took similar steps in 2022 when Russia was asked to suspend its invasion of Ukraine, and in 2020, when it told Myanmar to prevent killings of the Rohingya minority.
The court has no way of enforcing such verdicts, but an order from The Hague could pile international pressure on Israel to pause its offensive.
A leading Israeli law professor has acknowledged that the inflammatory words of some of the country's politicians and television presenters could create difficulties in being construed as incitement to genocide.
“This is a process that would generate legally binding decisions in a context … that could complicate [Israel's] war effort in Gaza,” Prof Yuval Shany said in a Zoom briefing to journalists hosted by the Israeli embassy in London.
“Court order measures that require Israel to stop the war, or allow civilians in the south to head back north, would have significant complications for Israel.”
The court’s decision could have an “impact in real-time on the war” against Hamas. Israel, he said, “would not want allegations on the record accusing it of genocide”.
Speaking from the University of Jerusalem, Prof Shany said it was a case “that Israel feels that it could win” and that genocide was a “notoriously difficult charge to make before the International Court of Justice”.
Belgium is set to discuss joining South Africa's cause at the ICJ after a senior minister called for a legal response to “unimaginable, horrific acts” in Gaza.
The Myanmar verdict – which was welcomed by countries including the UK and Canada – is cited more than two dozen times in legal documents filed by South Africa.
The case concerned a military crackdown in Myanmar that led to more than 700,000 Rohingya people fleeing to Bangladesh, sparking allegations of violent ethnic cleansing.
It is seen as relevant in part because it was brought by a third party, Gambia, which like South Africa was intervening on behalf of alleged victims of genocide.
Israel may argue that South Africa has no link to Gaza and therefore no right to bring the case, just as Myanmar sought to shoot down Gambia's lawsuit by saying Bangladesh should file the claim.
However, the fact that judges gave Gambia a hearing is a telling precedent for the South Africa-Israel case, believes Tareq Shrourou, a human rights lawyer in the UK who works for Palestinian causes.
A filing in that case by the UK, France, Canada, Germany, Denmark and the Netherlands argued that all countries have a stake in the “high purposes” of the Genocide Convention.
“Myanmar made several arguments to say there wasn’t actually a dispute between the Gambia and Myanmar,” Mr Shrourou told The National.
“What South Africa claims and what the Gambia’s claim with Myanmar states, and this was accepted, is that all parties to the Genocide Convention have an interest in ensuring that it is not violated.”
'Plausible' test
South Africa must also persuade the court that it has jurisdiction, that it is “plausible” that Palestinian rights are being violated and that an emergency order is needed to prevent “irreparable consequences”.
It accuses Israel of “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.
However, South Africa does not at this stage need to meet the high threshold of proving “genocidal intent”, said Mr Shrourou, with Israel likely to argue it is acting in self-defence against Hamas.
Part of Myanmar’s defence was that hundreds of thousands of Rohingya people remained in the country, casting doubt on claims of “forced displacements” amounting to genocide.
However, the court sided with Gambia in the first round of hearings, in which it had merely sought to persuade judges that genocide was one possible interpretation of the events in Myanmar.
The filing by western allies also argued for a broad interpretation, saying genocide could be inferred from circumstantial evidence and that the bar should not be “unduly high”.
South Africa, too, makes similar points in its 84-page argument against Israel, saying there is no requirement for genocide to be “the only inference to be drawn” at this stage of proceedings.
It says it is motivated by its “painful past experience of a system of apartheid”, an accusation sometimes levelled at Israel.
The full Myanmar case is yet to be decided almost four years after the provisional verdict, which would be expected within weeks of the South Africa-Israel hearings.
The UK and partners submitted a new filing in that case less than two months ago, saying the burning of villages and acts of violence against the Rohingya amounted to genocide.
In the Gaza case, however, western countries have generally been cautious in criticising Israel’s conduct and most do not support South Africa’s action at the ICJ.
Britain’s Foreign Secretary Lord Cameron said on Tuesday that the UK did not agree with South Africa’s move, despite acknowledging Israel could be legally vulnerable.
The US has described the South African lawsuit as “meritless, counterproductive, and completely without any basis in fact whatsoever”.
High threshold
Only one previous case of genocide has been proven, when Serbia was found guilty of it during the Balkans War, especially the Srebrenica massacre in which 8,000 Bosniak Muslim men and boys were murdered in 1995.
South Africa would have to reach a “high threshold” that either there was a general plan to commit genocide or that the pattern of conflict by Israeli military was “genocidal in nature”, argued Prof Shany, a former chairman of the United Nations Human Rights Committee.
Israel will argue that if it had intended to commit genocide in Gaza it “would not have expended so much effort to get civilians out of harm's way”, he said.
Even if some activities have been “excessive or questionable” Israel will still argue this was on the basis of a military campaign.
“It is driven by the logic of a military campaign rather than a genocidal one,” he said.
But it was “fair to say some of the wild statements” in the Israeli media and by far-right politicians could be seen as incitement to genocide, something Israel’s state attorney was already examining.
However, these were statements made by individuals who are “marginal figures” who had nothing to do with the decision-making process although they were still “very problematic”.
If the ICJ determined that the claims were “plausible” it could issue provisional measures to stop the military campaign, Prof Shany said.
