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Naisha Khan
Apr 266 min read

Of History, Hope, and the Hague: South Africa’s ICJ case against Israel

A challenge to the status quo and a symbolic win for the Global South

On December 29, 2023, the government of South Africa accused Israel of committing “genocidal acts” in Gaza and took the country to the International Court of Justice (ICJ) at the Hague. The two-day public hearing on January 11-12, 2024, in the World Court and its subsequent verdict, in which it ordered Israel to prevent acts of genocide in Gaza, became a defining historic moment for the international community at large. This article will demonstrate how South Africa’s legal intervention in Israel’s war on Gaza, despite the verdict of the ICJ which stopped short of a ceasefire order, is a symbolic act of dissent against the status quo of the Global North. Such a challenge is deeply rooted in South Africa’s own dark colonial history of apartheid. This article will first briefly mention the powers of the ICJ, then discuss the crucial arguments made by both sides during the proceedings, the court’s verdict, and the larger implications of the legal move made by South Africa. 


The ICJ and its powers


Before getting into the intricacies of the case, we need to understand what the ICJ is, and how powerful it is. The International Court of Justice (ICJ), also known as the World Court, is the highest legal body of the United Nations. It has the power to adjudicate issues between the member states of the United Nations. Fifteen judges from different nationalities serve on the ICJ, but additional ad hoc judges can also be appointed for specific cases, such as in the South Africa v. Israel case (Cuellar, Hathaway 2024). These judges are elected through the UN General Assembly (UNGA) and the UN Security Council (UNSC). 


Often, the final ruling of the ICJ takes years. However, it sometimes grants “provisional measures”, requiring states to abstain from certain activities, as it did in South Africa v. Israel case. 


Why South Africa, an uninvolved third party?

But why exactly did South Africa move the court, despite being unrelated to Israel’s war on Gaza? Since 2019, the ICJ has recognized a new form of standing: “erga omnes partes standing”, or standing “in relation to all/ everyone”. Through this, even if a state is not specifically affected by the violation, it can enforce common legal rights. So, a state can bring a case even if there is only a generalized interest in enforcing an obligation that all states owe to one another (Cuellar, Hathaway 2024).


This obligation was felt most strongly by South Africa, which has had a long, painful history of apartheid, dispossession, and state-sponsored violent rule. At the same time, the African state’s support for the Palestinian cause is not a new phenomenon. For instance,

  • The African National Congress (ANC) has had close ties with the Palestinian Liberation Organization (PLO) since the 1950s and 1960s, when several African states emerged from colonial rule.

  • Nelson Mandela was on friendly terms with PLO President Yasser Arafat.

  • The two countries maintained diplomatic and strategic partnership for several years and supported each other’s anti-colonial campaigns. 


The South Africa v. Israel case


In December 2023, South Africa invoked the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, against Israel. According to the Genocide Convention, the word ‘genocide’ entails acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group (United Nations). It charged Israel with committing the crime of genocide in Gaza in violation of the convention. This is the second instance in recent years when a third party has alleged genocide before the ICJ, the first one being in 2019 when Gambia accused the state of Myanmar of committing genocide against its Rohingya population. 


In its 84-page case, South Africa's listed genocidal intents: 

  • The killing of Palestinians in large numbers, especially children;

  • The destruction of homes; 

  • Expulsion and displacement; blockade on food, water, and medical assistance to the Gaza strip; and the imposition of measures preventing Palestinian births by destroying essential health services crucial for the survival of pregnant women and babies (Al Jazeera 2024). 

South Africa demanded urgent provisional measures from the Court that could be applied before the commencement of the main case, including the immediate suspension of Israel’s military operations in Gaza.


Israel’s Defense


In its defence, Israel’s representatives argued that South Africa’s case has “distorted” and “decontextualised” its military actions in Gaza. It accused Pretoria of “diluting” the meaning of the crime by accusing Israel of genocide. Israel stood steadfast in its argument about its “right to self-defence” following the October 7 attacks by Hamas. Israel’s advocate argued that the Genocide Convention was drawn up after the horror of the mass killing of Jews in the Holocaust. The phrase “never again”, they argued, is one of the “highest moral obligations” for Israel (Al Jazeera 2024). Israel’s legal team contended that South Africa’s accusation that Tel Aviv has an intent to “destroy” the Palestinian people was based on “random assertions”.


Within weeks, with a majority of 15 to 2, the ICJ ruled on 26th January, 2024 that Israel must “take all measures within its power to prevent the commission of all acts within the scope of Article II of this (1948) Convention” (The Wire 2024).  Even though the Court issued a total of six provisional measures, none of them explicitly called on Israel for an immediate ceasefire. The provisional measures included calling on Israel to take all measures to “prevent genocidal acts”, prevent and punish the direct and public incitement of genocide, and take immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza. The ICJ also ordered Israel to “preserve evidence of genocide and to submit a report to the court within a month regarding its compliance with the order” (Al Jazeera 2024).


Even though the World Court has confirmed the plausibility of South Africa’s charge that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”, there is no indication that Israel intends to abide by the Court’s provisions. After the order, Israel’s Prime Minister, Benjamin Netanyahu, said that although Israel has an “unwavering” commitment to international law, it was  “equally unwavering” in defending itself. “The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected,” he said (The Wire 2024). 


Although the judgement did not prescribe a ceasefire, much to the disappointment of many, it is still a win for South Africa. A ceasefire call would imply that two states are engaged in the conflict. However, the ICJ does not have jurisdiction over Hamas, a non-state resistance organisation. The court also did not use the word “war” since a war would again imply the involvement of two states. Rather, it used the term “military operations” for Israel’s actions. 


However, it will be difficult to enforce this ruling. Even though the ICJ ruling is “binding”, as stressed by the court, it has no military or political power to enforce its decisions. It would have to rely on a UN Security Council resolution for coercive measures. This would be nearly impossible to materialise owing to the US veto. Yet, the political pressure to comply with the ICJ verdict is massive. Additionally, Israel is ordered to report back to the court in a month on the steps it has taken to prevent genocidal acts. Israel’s Western allies would also face the dilemma of either urging Israel to comply with the court’s rulings or going against the very “rules-based order” they take enormous pride in (Roth 2024). Furthermore, if Israel ignores the ICJ’s orders, pressure from the International Criminal Court (ICC) will likely come in. The ICC prosecutes individuals for war crimes, unlike the ICJ. 



Conclusion


Despite the many uncertainties and dissatisfactions attached to the ICJ’s provisional measures, it is still clear that the rule of law proved to be far from useless. The greatest credit goes to South Africa, a voice for the voiceless Palestinians in a Western institution dominated by Western power politics and the US hegemony. By invoking the world’s greatest legal institution and transcending the obstacles posed by Israel’s big power allies, South Africa has won hope not just for Gaza but for the Global South as a whole. An underestimated international player with its own tragic past has, by choosing to be on the right side of history, paved the way for a more lawful, just world. 


References


Florentino, Mariano, & Oona  A. Hathaway. “The International Court of Justice’s Balancing Act”. Carnegie Endowment for  International Peace, 26 Jan. 2024, carnegieendowment.org/2024/01/26/international-court-of-justice-s-balancing-act-pub-91490.



“ICJ Says Israel Must Comply with Genocide Convention, but Stops Short of Halting Military Op in Gaza.” The Wire, 26 Jan. 2024, thewire.in/world/icj-says-israel-must-comply-with-genocide-convention-but-stops-short-of-halting-military-operation. 


Roth, Kenneth. “The ICJ Ruling Is a Repudiation of Israel and Its Western Backers ”. The Guardian, Guardian News and Media, 26 Jan. 2024, www.theguardian.com/commentisfree/2024/jan/26/icj-ruling-israel-western-backers. 


“Convention on the Prevention and Punishment of the Crime of Genocide”. United Nations General Assembly Resolution 260 A (III), 9 December, 1948. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf 


 

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