Explainer: South Africa v Israel at the International Court of Justice

by | 16 Jan 2024

On 29th December 2023, South Africa filed an application at the International Court of Justice (ICJ), instituting proceedings against Israel. In its application, it asked the ICJ – the judicial organ of the United Nations – to determine whether Israel had violated its obligations under the Genocide Convention in relation to Palestinians in the Gaza Strip. The public hearings requesting provisional measures took place in The Hague on 11th and 12th January 2024. This is a historic case for the Palestinians. It is also a historic case for all those keen to see whether international law and its primary judicial institution positions itself on the side of the oppressed and racialised, or whether it supports imperial wars.

Why is this case important?

The case is important because it intervenes in a ‘hot conflict’, with the stakes being the very survival of the Palestinians. Although Palestinians were under substantial restraint, brought on through living under occupation and a regime of apartheid, before October 7th 2023, the current siege has been described as ‘a second Nakba’. Nakba in Arabic means ‘catastrophe’ and was first used in relation to 1948, the year of the founding of the State of Israel, and the year in which 750,000 Palestinians were forced to flee from their land. On October 7th 2023, Hamas, the de facto governing authority in the Gaza Strip, instituted an attack on Israel, killing approximately 1200 people and taking around 200 hostages with the stated goal of an exchange of hostages. In the following weeks, Israel responded to these atrocities by dropping the equivalent of two atomic bombs on Gaza, destroying civilian infrastructure and killing at least 23,000 people to date, according to Oxfam, an average of 250 people per day. Palestinians in the Gazan strip have been forced to leave the North, which according to reports has been reduced to rubble, and have been confined to ever smaller spaces in the South of the Strip, where a humanitarian catastrophe has been unfolding: Extreme food insecurity, a physically and mentally traumatised population, and a high risk of infectious diseases has been declared. South Africa’s application to the ICJ asks for provisional measures by the ICJ, including calling on Israel to implement an immediate suspension of military operations in and against Gaza to mitigate the risk of genocide. Previous proposals for resolutions calling for an immediate humanitarian ceasefire at the UN Security Council have failed on account of the US’s veto

Although that is certainly enough to justify the importance of this case, the case’s importance goes beyond the immediate political (and moral) demands for a ceasefire to prevent a genocide. The case is not only perceived as a case between two states; is also representative of a North-South divide. The West continues to protect Israel in its siege on Gaza, most notably the US and Germany, who justify Israel’s actions as covered by its right to self-defence. Indeed, in a dogmatic and misguided application of the ‘never again’ axiom, Germany declared on Friday that it would be intervening in the case as a third party in support of Israel. Procedurally, this is permitted by Art. 63 of the ICJ’s Statute. States of the Global South have time and again seen international law utilised by powerful states of the Global North to justify militarism, exploitation, and oppression. Regularly, the military might of these states is a tool of imperialism, used to open new opportunities for enriching themselves. Racialised language is often employed to then blame underdevelopment on Global South states. How quick Western states are to once more deploy bombs in the Global South when the flow of capital is threatened can be seen with last week’s bombing in Yemen

Such interventions are regularly (perversely) justified on humanitarian grounds. Indeed, Israel extraordinarily claimed in its oral application at the ICJ that it was operating in Gaza with a view to ‘create a better future for Israelis and Palestinians alike’, an opportunity denied solely through Hamas’s activities. Further, it claimed that it was not bombing hospitals in Gaza, but rather offering assistance. In line with (settler-) colonial arrogance, Israel claimed that Gaza – which was long before October 7th described as an open-air prison – had all the opportunities for development (‘a coastal area with the potential to become a political and economic success story’), were it not for Hamas’s activities.

Why South Africa?

South Africa explains in its 84-page filing to the ICJ that all states have an obligation to ensure that the Genocide Convention is not violated – it does not itself have to be affected. This is referred to in the legal-lingo as an obligation erga omnes partes. If this seems tenuous, it in fact has precedence at the ICJ in the recent The Gambia v Myanmar case in which provisional measures were sought. The Gambia relied on the erga omnes partes rule to bring a case against Myanmar for committing genocide against the Rohingya. South Africa of course has a special interest in these questions as it itself has a history of racial segregation, and apartheid, and of transitioning from this period of its history. Furthermore, a special solidarity with the Palestinian struggle by the ruling post-apartheid era ANC stems from Israel’s ‘close military alliance’ with the apartheid regime during its most oppressive years of white rule.

Why the ICJ?

The ICJ, composed of 15 judges, sits in The Hague in a building referred to as the Peace Palace. It hears cases between states. The judges, who are elected by the UN General Assembly and UN Security Council, represent a particular state but are not obliged to vote in accordance with their state’s policies. If there is no judge on the Bench representing the disputing parties (as is the case in this dispute), both states nominate an ad hoc judge. 

Many news outlets have confused the ICJ with the International Criminal Court, which is also based in The Hague. The ICC is also an international court, although not a judicial organ of the UN. It hears cases brought against individuals (not states). Proceedings relating to Palestine have been laboriously making their way through the slow legal apparatus of the ICC since 2015, with various legal hurdles placed in its way. The Office of the Prosecutor of the ICC (which has suffered from charges of institutional designs that further racial subordination, an anti-African bias, and of protecting the West), could issue arrest warrants against high-ranking officials of both Israel and Hamas. Because Hamas does not and cannot represent a state, it cannot be brought before the ICJ. Ironically, Israel, which has prevented Palestine from exercising its right to self-determination under international law, made the point that Hamas is not a party to the proceedings.

This is not the first time that the ICJ has considered Israel’s (violation of) international legal obligations vis-a-vis Palestine. In an advisory opinion of 2004, the ICJ stated in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that Israeli settlements in the occupied Palestinian Territory were illegal and that the wall constructed by Israel was a de facto annexation, impeding the exercise by the Palestinian people of its right to self-determination. Israel all but ignored the ICJ opinion, and the General Assembly resolution which followed it.

In more recent years, Israel appeared before the ICJ for the first time in decades to state its support for the UK in the advisory opinion relating to the Legal Consequences of the Separation of the Chagos Archipelago from Mauritious in 1965. The ICJ found against the UK in this opinion, requiring the islands to be returned to Mauritius. The UK, claiming that this was a bilateral dispute, has ignored the ICJ’s opinion.

What is genocide according to the Genocide Convention

At stake here is whether Israel has met the legal threshold for committing or preventing the commission of genocide. This in itself can be viewed as problematic, as anyone who has experienced the injustice of the law will know that legal and moral issues don’t always overlap. According to Art. II Genocide Convention, genocide means acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. For the legal requirements of genocide to be met, the by far most difficult issue to prove is whether there was specific intent. In the Latin terminology, this is called dolus specialis. All cases regarding genocide in the past have depended on this legal requirement. South Africa claims that Israel’s acts and omissions are genocidal in character, as they are committed with the specific intent to destroy Palestinians in Gaza as part of the broader Palestinian national, racial, and ethnical group. For this, it provides in its application to the ICJ eight pages of harrowing expressions of genocidal intent made by Israeli State Officials and others. These are only a few of the over 500 instances now documented in a database of Israeli incitement to genocide. The most shocking of these include the statement by Israeli Defence Minister regarding the siege on Gaza: ‘No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.’ Israel in turn is claiming that it is the victim of genocidal intent, expressed by Hamas.

What are provisional measures?

Provisional measures, provided for under Art. 41 of the ICJ Statute, are basically an injunction. They are emergency decisions made by the ICJ judges before going into the merits of a case – which often takes years. Provisional measures can be indicated in light of the nature of the rights at issue (genocide) and the ongoing, extreme and irreparable harm likely to be suffered if action is not taken. Importantly, the legal threshold for provisional measures is that the violation of the rights for which protection is sought are ‘at least plausible’. A higher threshold will be applied on the merits. A ceasefire decision by the ICJ on provisional measures also has a precedent. In 2022, the ICJ ordered Russia in the Ukraine v Russian Federation case that it ‘shall immediately suspend military operations … in the territory of Ukraine.’ A further ICJ decision ignored.

What will happen next?

So, what will happen next? Conventionally, provisional measures are decided within a few weeks. On the basis of experience with settler colonial and imperial powers and international law, there is a possibility that the ICJ could rule in favour of Israel. If it does find against Israel, it is likely that provisional measures will be ignored by it, even if the rulings are binding under international law. However, that is not to say that a finding of plausibility of a genocide being committed is without consequence. States that are providing weapons to Israel, like the US, the UK, and Germany, will be in the frame for enabling a genocide. This could give greater credence to anti- and de-militarisation organising, both governmental and from civil society, creating greater pressure on governments to cease arms provisions. It could also give further support to the Boycott, Divestment and Sanctions (BDS) movement, a non-violent movement to isolate Israel on the world stage.

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