South Africa has taken Israel to court. What's its case, and what's Australia's position?

South Africa has accused Israel of committing genocidal actions in the Gaza Strip - something Israel denies. Here's what you need to know.

South Africa has argued Israel's actions in the Gaza Strip amount to genocide. Source: AAP, SIPA USA / ANP

Key Points

• South Africa has accused Israel of committing genocide, launching a case at the International Court of Justice.
• Making its arguments in The Hague on Thursday, South Africa asserted that Israel had breached the Geneva Convention.
• Israel presented its case the next day, rejecting the accusations and defending their ongoing attacks in Gaza.

South Africa has alleged to the International Court of Justice (ICJ) that Israel's actions in the densely-populated Gaza Strip amount to genocide.

In its presentation to the ICJ - also known as the World Court - last week, South Africa argued Israel's "genocidal intent" had been "nurtured at the highest level of state", claiming the only prospect of stopping the suffering was an order to suspend the bombardment.

Israel responded by telling the court South Africa was invoking the term genocide in "a war it did not start and did not want", arguing it was defending itself from terror groups "whose brutality knows no bounds".

So what is South Africa's case, what can the ICJ really do, and what position is Australia taking?

Here's what you need to know.

What is the ICJ?

The International Court of Justice is the highest UN court and is based in The Hague, Netherlands. It was established in 1945 to settle disputes regarding breaches of international law. The court also provides advisory opinions on legal questions that have been referred to it by other authorised UN bodies.

"It was considered that it would be useful to have an organ that could resolve disputes between states in a fair and equal manner," said Juliette McIntyre, an international law expert at the University of South Australia.

The ICJ is comprised of 15 judges, appointed for nine-year terms through elections at the UN General Assembly (UNGA) and the Security Council (UNSC), with rulings decided by the majority.

The ICJ is not to be confused with the International Criminal Court - the ICC - which is also based in The Hague. While ICJ cases involve member states, the ICC is a criminal court that brings cases against individuals for war crimes, crimes against humanity and genocide.

What is South Africa accusing Israel of?

South Africa's application to the ICJ was 84 pages long, and much more detailed than those typically submitted to the court.

South Africa and Israel are both parties to the 1948 Genocide Convention, which obliges them to take measures to prevent and punish the crime of genocide.

South Africa claims that Israel has violated the 1948 convention through its bombardment and siege of Gaza. The treaty defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group".

Emily Crawford, a professor of international law at the University of Sydney, told SBS News: "There needs to be a deliberate policy by the government to commit the act of genocide.

"It's not just enough that genocidal acts have been met, there needs to be the mental element behind the act."

Tembeka Ngcukaitobi, an advocate of the High Court of South Africa, told the ICJ on Thursday that "the evidence of genocidal intent is not only chilling, it is also overwhelming and incontrovertible".

In its court filings, South Africa cited Israel's failure to provide food, water, medicine and other essential humanitarian assistance to the Palestinian enclave.

It also pointed to its sustained bombardment, which has killed more than 23,000 people, according to Gaza health authorities.

"South Africa contends that Israel has transgressed Article Two of the (Genocide) convention, committing acts that fall within the definition of genocide. The actions show a systematic pattern of conduct from which genocide can be inferred," Adila Hassim, another advocate of the High Court of South Africa, said.

What is Australia's position?

Unlike many of its allies, the Australian government has not come out publicly for or against South Africa's case.

"In general our position tends to be that we don't comment on matters that are before courts. We obviously are not a participant in the process, don't intend to be a participant in the process," Prime Minister Anthony Albanese said in January.

"What we want is to see a political solution ... That's the main game. Not any court case, not anything else."

The government has not come out for or against South Africa's case. Source: AAP / Issei Kato/AP

The government partly justifies its stance by stressing Australia has not had an opportunity to participate formally in the court process. But that doesn't stop it from simply stating its position on the case, as others have done.

The United States described South Africa's motion as "meritless, counterproductive, and completely without any basis in fact", while United Kingdom Prime Minister Rishi Sunak said it was "completely unjustified and wrong".

A number of countries - spanning the Middle East, South America, and Africa - have voiced their support for the motion, while one of Spain's governing parties argued it was a "necessary step".

The Opposition has demanded Labor publicly rule out support for the case.

Why does South Africa support the Palestinian cause?

Post-apartheid South Africa has long defended the Palestinian cause, a relationship forged when the African National Congress' struggle against white minority rule was cheered on by Yasser Arafat's Palestine Liberation Organisation.

Former South African president Nelson Mandela and other South African leaders have compared the restrictions Palestinians in Gaza and the West Bank face to the restrictions black South Africans experienced during apartheid.

What has Israel said?

Israel has rejected the accusations of genocide as false and baseless and claimed South Africa was speaking on behalf of Hamas - which South Africa has denied.

Hamas is a Palestinian political and military group, which has governed the Gaza Strip since the most recent elections in 2006.

Hamas' stated aim is to establish a Palestinian state and stop the Israeli occupation of Gaza and the West Bank. A UN Commission of Inquiry in 2022 found Israel's occupation of the Palestinian Territories to be unlawful under international law.

Israel's retaliatory offensive in Gaza was triggered when, on 7 October, Hamas militants launched a coordinated land, sea and air attack on Israel, killing 1,200 people and taking 240 hostages.

Israeli Prime Minister Benjamin Netanyahu has described the ICJ case against it as "upside-down".

"Israel is accused of genocide while it is fighting against genocide," he said.

Israel's prime minister has described accusations of genocide against it as "upside-down". Source: AAP

"Israel is fighting murderous terrorists who carried out crimes against humanity: They slaughtered, they raped, they burned, they dismembered, they beheaded - children, women, elderly, young men and women," he said.

What can the ICJ do?

The ICJ will not rule on the genocide allegations immediately - such proceedings could take years. However, provisional measures can be implemented just weeks after a hearing.

South Africa has asked the ICJ to place provisional measures to order Israel to protect Palestinians in the Gaza Strip from further harm, and for Israel to suspend its military operations in the Gaza Strip.

"What provisional measures are essentially a kind of an emergency ruling by the court that there is a substantial risk of a breach of international law taking place," Crawford explains.

"When the ICJ does make a final ruling, it can't be appealed. While judgements are legally binding - they are often difficult to enforce."

- With additional reporting by Rayane Tamer, Anna Bailey and Finn McHugh