South Africa v. Israel: 2024
As 2023 closed out, South Africa filed an application to institute proceedings against Israel before the International Court of Justice (ICJ). The application stated that Israel’s aggression in Gaza violates the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (Genocide Convention) by actively committing genocide against Palestinians in Gaza, failing to prevent it, and failing to hold senior Israeli officials and others accountable or their direct and public incitement to genocide. South Africa requests the ICJ for provisional measures, including the immediate suspension of Israeli military operations in Gaza. Israel intends to appear before the ICJ to “dispel South Africa’s absurd blood libel,” and has called this application to the ICJ with antisemitic slander.
There are many lines in this story that stand out. South Africa’s fight against apartheid started with its journey within its territory, and continues beyond its borders as it resists Israel’s campaign of apartheid targeting Palestinians. Israel is being held to account for its blatant violation of a convention that was adopted after the Holocaust, in which six million Jews were killed.
South Africa’s Case
South Africa’s application to the ICJ is in pursuit of two key principles of international law. First, South Africa has stepped up to hold Israel accountable for violating a jus cogens norm (a peremptory norm from which no derogation is permissible) by committing genocide. Second, it has grounded its standing before the court in the principle of erga omnes partes standing (standing based on obligations “in relation to everyone,” or owed to all), in discharge of its obligations as a State party to the Genocide Convention to hold another State party accountable under it.
South Africa has grounded its case against Israel in the interpretation and application of the Genocide Convention. It argues that Israel’s military campaign against Gaza since October 7, 2023, constitute genocidal acts. The application to the ICJ notes that Israel has “killed in excess of 21,110 named Palestinians, including over 7.729 children – with over 7,780 others missing, presumed dead under the rubble—and has injured over 55,243 other Palestinians.” It notes that “Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes.” Even as the application condemns Hamas’ targeting of civilians and taking of hostages on October 7, it indicates unequivocally that “no armed attack on a State’s territory no matter how serious—even an attack involving atrocity crimes—can . . . provide any possible justification for, or defence to, breaches” of the Genocide Convention. It also names the fact that Israel’s conduct must be understood in light of the “broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”
To prove genocidal intent, South Africa’s application named repeated statements made by Israeli State representatives, including the Prime Minister and President, and the conduct of Israel’s military operation in Gaza. It also names their “failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people” and its sustained bombardment, which has forced “the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herd[ed] them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed.” Further, the application notes that statements made by Israeli officials and others amount to direct and public incitement to commit genocide.
South Africa seeks an expedited hearing for provisional measures until the case moves to the next stage. It asks for Israel to (a) suspend its military operations in and against Gaza (b) ensure that individuals under its control do not engage in direct and public incitement to commit genocide, and hold them accountable as required by the Convention if they do; (c) take all measures within its power including rescinding of relevant orders to prevent the deprivation of access to adequate food and water; (d) preserve evidence, (e) submit reports on the measures taken to abide by the provisional measures ordered; and (f) refrain from taking actions which might aggravate or extend the dispute before the Court.
What might happen next?
The ICJ will first determine if it has jurisdiction over the case, and whether South Africa has based its application on treaty rights and obligations that are plausible, and whether there is a link between the measures South Africa is requesting, and the rights of those whose protection is being sought. There will also be due consideration for the state of urgency. The court may or may not decide to impose the provisional measures South Africa requests – perhaps some, all, or none may be imposed. If the case proceeds to merits, public hearings will follow. However, the final judgment will take years.
The decision of the ICJ is final and binding only on the parties to the case. There is no room to appeal against a decision of the ICJ, and there is no mechanism in place to ensure the enforcement of the decision. Should the ICJ recognize and name Israel’s actions in Gaza acts constituting genocide, the decision may look like an injunction legally restraining Israel from continuing its campaign of genocide. However, precedent shows that Israel has not complied with the ICJ’s rulings in the past, and this may, in all likelihood be the case this time, too. The UN Security Council can enforce the decision of the ICJ by taking special measures to enforce it at the request of the accusing state. However, knowing that the UN Security Council has been the site of multiple vetoes to address Israel’s campaign of genocide in Gaza, this solution may not be useful. A third option is for all states that are party to the ICJ (153 in all) to step up to prevent Israel’s genocide – but seeing as the Uniting for Peace Resolution during the UN General Assembly’s emergency session failing to produce a result, it is unclear how far this solution might go.
