On Jan. 11, South Africa and Israel will take the stand before the International Court of Justice (ICJ) in a case that could shape the ongoing Israel-Hamas war.
Oral proceedings will take place on Thursday and Friday in the Netherlands, after South Africa filed a case against Israel in late December for its “genocidal acts” against Palestinians in Gaza. The suit was filed to the ICJ—the main judicial body of the United Nations which settles international disputes among member states and answers requests for advisory opinion on legal questions.
[time-brightcove not-tgx=”true”]
More than 22,000 Palestinians have been killed since Hamas attacked Israel on Oct. 7 and killed 1,200 people and kidnapped some 200 others. The Gaza Strip has experienced a shortage of resources since, with hospitals and churches subject to airstrikes, and limited international aid coming into the enclave.
The court, on Thursday, will not decide whether Israel is committing genocide, but instead will assess whether South Africa’s case is strong enough to issue provisional measures that would “protect against further, severe and irreparable harm” to Palestinians and “‘to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide,’” the application against Israel says.
Here’s what to know about the case.
What is this case about?
South Africa submitted an application to institute proceedings against Israel on Dec. 29, 2023, for “alleged violations by Israel” under the Genocide Convention.
In the 84-page application, South Africa cites United Nations experts who have, for week, sounded the alarm of the risk of genocide against Palestinians. The application points to evidence including, but not limited to: statements by Israeli state representatives that they say express genocidal intent; the deprivation of access to food and water; blockage of humanitarian aid; killing civilians; causing serious mental and bodily harm; and mass expulsion and displacement of Palestinians.
Israel has denied that it has violated international law during its military campaign in Gaza. “The use of the term ‘genocide’ in relation to Israel’s lawful targeting of Hamas, Islamic Jihad and other terrorist organizations in Gaza empties the term of meaning,” reads a Q&A published on the Israeli Defense Forces website. “Israel is at war with Hamas, not with the people of Gaza. It is committed to conducting its operations in accordance with international law and wishes no harm to Palestinian civilians anywhere.”
How the case will play out
The case is currently at the provisional measures stage, meaning “South Africa is not asking the court to rule definitively that Israel is committing genocide,” Rutgers Law School professor Adil Haque says.
Instead, South Africa is asking the ICJ to issue an order that would be similar to a preliminary injunction in a U.S. court and “preserve the status quo,” Lea Brilmayer, a professor of international law at Yale Law School, adds.
South Africa is specifically requesting Israel to “halt all military attacks that constitute or give rise to violations of the Genocide Convention,” according to their court application. They also ask that Israel “cease killing and causing serious mental and bodily harm to Palestinian people in Gaza” and facilitate the delivery of humanitarian aid. The court has the power to order Israel to comply with all of South Africa’s requests, or it may only issue some orders.
Scholars could not concretely provide a timeframe for when the ICJ would issue their decision after the oral arguments. Some said it could take weeks, if not longer. Francis Boyle—a professor at University of Illinois College of Law who serves as counsel to the Provisional Government of the Palestinian Authority—says it could be even faster. He notes that the massive Palestinian death toll due to the ongoing military offensive in Gaza creates urgency in this case.
Either way, if the ICJ does rule in favor of South Africa, the provisional measures would only be temporary. Judges would later have to decide if the case could move forward to the merits phase, which would lead to a fully-fledged trial between South Africa and Israel during which the court would decide whether Israel committed genocide. A decision on that would take years, according to experts.
A separate case has also been opened in the International Criminal Court (ICC), which is reviewing actions taken by Israeli officials since the war and “conduct that may amount to Rome Statute crimes committed since 13 June 2014 in Gaza and the West Bank, including East Jerusalem,” per a Nov. 17 statement. The ICC differs from the ICJ in that it is a criminal court that prosecutes individuals for their actions.
Role of the ICJ in determining genocide
The ICJ’s orders are legally binding—but experts warn that the ICJ does not have the power to enforce a state to abide by its judgment.
“It’s an institution that enforces its judgments through public pressure, because it looks very bad for a country to defy an order from the ICJ because it’s very prestigious and authoritative,” Brilmayer notes. “The ICJ is basically stuck if it comes up against a state who refuses to comply with the order.”
Haque points to a similar case filed by Ukraine against Russia in February 2022 as a possible precedent. While the case is still pending in the courts, judges issued a provisional measure telling Russia to “suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” and that any military support must take “no steps in furtherance of these military operations.” But Russia has not ended its ongoing military campaign.
The UN Security Council has the authority to enforce ICJ orders, but countries like the U.S. and Russia have veto power, making them and their allies immune to demands. Boyle says that the UN General Assembly could issue a resolution for enforcement on the matter, but other experts note that even that action could be ignored.
“The court orders will more likely be the basis for a wide variety of states to criticize Israel if it does not comply, and use other means to try to pressure Israel to comply with whatever the orders turn out to be,” Haque says.
Still, Alexander Hinton, the UNESCO Chair in Genocide Prevention at Rutgers University, says that pursuing this legal avenue is worthwhile.
Having South Africa file this case could be evidence of a trend towards greater universal care, he suggests. All member states are permitted to present a case about genocide to the ICJ under the UN Genocide Convention, and this would not be the first time a third-party brings forward a case to the ICJ about genocide; in 2019, Gambia, presented a case against Myanmar for its genocide against the Rohingya. But having a country that does not neighbor Israel file the claim is significant.
Settling international matters may be slow, but Hinton says “there is a worth to determine the facts to render a judgment and to morally and legally implicate [an entity] who could be found to violate the genocide treaty.”