‘The continuing military action by Israel gives South Africa an even stronger factual basis for its genocide claim than it had when it filed in December 2023,’ says law professor John Quigley

US sanctions on ICC officials and Palestinian and Israeli human rights organizations are ‘a direct attack on the international rule of law,’ says legal expert Gerhard Kemp

‘Civil society should pressure governments to show support to the ICC’ and execute arrest warrants for Netanyahu and Gallant, says Marco Longobardo, reader in international law at the University of Westminster

ISTANBUL

Two years after Israel launched its devastating assault on the Gaza Strip, international legal proceedings against the country are gaining slow but steady momentum.

Over the past two years, Israel has killed nearly 67,200 Palestinians in Gaza, most of them women and children, and wounded over 170,000, according to figures from Palestinian authorities.

A UN independent international commission of inquiry concluded last month that Israel is committing genocide in the enclave, where its siege and blockade on aid have also triggered a famine that has killed more than 460 Palestinians, including over 150 children.

At The Hague, both the International Court of Justice (ICJ) and the International Criminal Court (ICC) are advancing cases accusing Israel of genocide and war crimes, in what experts describe as one of the most consequential efforts for accountability in decades.

In December 2023, South Africa initiated landmark proceedings against Israel at the ICJ, alleging violations of the 1948 Genocide Convention.

In an 84-page filing, Pretoria presented extensive evidence of Israel’s intent and actions “to destroy, in whole or in part, the Palestinian people in Gaza.” At least 13 countries, including Türkiye, Colombia, Mexico, and Brazil, have since filed declarations of intervention supporting the case.

Between January and May 2024, the ICJ issued three sets of provisional measures ordering Israel to prevent genocide, halt its military operations, and allow humanitarian access.

Yet, experts say Israel has largely ignored the rulings while intensifying its campaign.

According to Gerhard Kemp, professor of criminal law at the University of the West of England, the worsening humanitarian crisis Israel has created in Gaza should have already prompted renewed ICJ intervention.

“South Africa should probably return to the ICJ for further provisional measures,” Kemp said. “But I think South Africa will point out that Israel has essentially ignored the previous orders by the ICJ, and unfortunately, Israel’s allies in the West seem to be unwilling to put pressure on Israel to implement them.”

Kemp added that South Africa and its allies in the Global South have now formed The Hague Group of States to coordinate diplomatic, political, and economic pressure on Israel, including measures to disrupt the flow of weapons.

“The strategy seems to be not only to rely on the ICJ, but also to pursue diplomatic and economic means to help end the genocide in Gaza,” he said.

When could a verdict come?

After South Africa submitted its memorial – the main legal brief outlining its arguments – Israel was given until January 2026 to file its response.

“The current situation in Gaza involves new facts that might allow the Court to issue updated provisional measures,” said John Quigley, professor of law at Ohio State University’s Moritz College of Law.

“The court may be able to issue a judgment by late 2026 or early 2027. The continuing military action by Israel gives South Africa an even stronger factual basis for its genocide claim than it had when it filed in December 2023.”

However, other experts warn that the timeline may extend much longer.

“Unfortunately, cases before the ICJ take significant time, especially when allegations concern genocide,” Marco Longobardo, reader in international law at the University of Westminster, told Anadolu.

“The Bosnia v Serbia and Croatia v Serbia cases took 14 and 16 years, respectively. The genocide case against Myanmar has been pending since 2019.”

Quigley said the strongest component of South Africa’s case lies in proving that Israel has inflicted conditions of life calculated to bring about the destruction of a group.

“Gaza City is currently under evacuation orders in circumstances in which many are likely to die from privation or lack of medical care,” he said. “South Africa will be able to argue that this situation – on top of those preceding it – constitutes genocide.”

Could the ICJ declare a genocide in Gaza?

Along with the UN inquiry commission, legal scholars and experts around the world increasingly agree that Israel’s actions meet the legal definition of genocide.

Kemp said there is growing academic consensus on the issue: “It is remarkable that so many scholars agree that the conduct of Israel constitutes the crime of genocide against Palestinians in Gaza.”

The destruction of Gaza City, the famine, and the public statements by Israeli officials about displacing Palestinians all confirm rather than deny South Africa’s core allegations – not only in terms of acts of genocide, but also the intent to commit genocide, he added.

Longobardo emphasized that South Africa’s evidence of intent – a key legal threshold – is particularly compelling.

Although the ICJ has interpreted intent restrictively in the past, South Africa has built a very strong case based on statements by Israeli officials that convincingly show the intent to destroy, in whole or in part, the Palestinians, he said.

ICC warrants and enforcement challenges

Parallel to the ICJ proceedings, the ICC has also advanced its own investigation into Israeli officials.

Last November, the ICC’s Pre-Trial Chamber I issued arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, accusing them of using starvation as a method of warfare and committing crimes against humanity, including murder and persecution.

But whether those warrants can be enforced remains uncertain.

Kemp said there is a lot of ambivalence in some, but not all, Western countries: “Even some ICC member states regularly allow Netanyahu to use their airspace for his overseas trips, for instance to fly over Europe to the US. And then, of course, we have the US, which is openly hostile to the ICC.”

Longobardo emphasized that the ICC lacks its own enforcement mechanisms.

“Arrest warrants should be enforced by state parties to the ICC Statute through their judiciary and law enforcement agents. There is no other possibility. Civil society should pressure governments to show support to the ICC and to comply with their obligations of cooperation under the ICC Statute.”

US sanctions and Western obstruction

The US has taken an openly adversarial stance toward the ICC’s investigation, imposing sanctions on court officials and NGOs assisting the probe.

“The US is not only sanctioning the ICC prosecutor, judges and officials, but also banning and sanctioning Palestinian and Israeli human rights organizations that it regards as assisting the ICC,” said Kemp, terming it “a direct attack on the international rule of law.”

He criticized Western allies for their silence. “It is unfortunate that states party to the Rome Statute, especially influential ones like Germany, Canada and the UK, are not doing more to protect the ICC from US hostility.”

Longobardo described Washington’s measures as a “disgrace” that threatens the very foundations of international justice.

“States parties to the ICC Statute should step in to protect the ICC. The EU should use its Blocking Statute to protect European operators from the effects of sanctions against ICC officials, thus allowing ICC judges and prosecutors to entertain economic relations with companies based in the EU.”