The landmark case of South Africa against Israel at the International Court of Justice (ICJ) has not ended the war in Gaza. Still, it has made some symbolic declarations on the crisis with more, equally remarkable rulings to look forward to in the months or years ahead. The lessons of the current ‘soft orders’ at a resolution of the conflict are significant.
Under the Genocide Convention of 1948, South Africa had taken the case against Israel to the United Nations’ top court at The Hague in late December, arguing that Israel was committing genocide against Palestinians in Gaza. In an 84-page long submission, South Africa among other prayers called for the suspension of military activity in and against Gaza. Recall that Israel had launched a full-scale ‘Operation Swords of Iron’ reprisal on Gaza following the October 7, 2023, Hamas’ invasion of Israel, in which 1,200 people were murdered, most of them civilians. According to the Hamas-run territory’s health ministry, Israel’s offensive in Gaza has killed at least 29,782 people, including those killed as a consequence of terror groups’ own rocket misfires, as well as the 12,000 Hamas terrorists Israel says it has killed in battle.
The court heard arguments from both sides and made some rulings. First, the ICJ established a prima facie jurisdiction in the case, declared that some of South Africa’s cases were plausible, and ordered some measures. The full trial and final ruling could take months or years. In the interim, the court in a 29-page order said Israel must “take all measures within its power to prevent the commission” of forbidden acts under the Genocide Convention. These acts include “killing members of the group,” referring to the Palestinians, and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction,” according to the order published by the court. The court added that “Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide.”
Regarding the dire humanitarian situation in Gaza, the court said that “Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance.” The court further called for the “immediate and unconditional release” of the hostages held by Hamas and other groups in Gaza. Israel must submit a new report within one month on the measures it is taking to comply with the order, according to the court.
South Africa, from the ruling, didn’t exactly get her wish for a ceasefire in Gaza. Yet, the ruling is a rebuke of how Israel has waged the war—and perhaps more importantly to the conduct of Binyamin Netanyahu’s government—but one that is unlikely to significantly constrain its ability to keep fighting Hamas. Expectedly, Israel’s leaders have called the ruling outrageous, an infringement on their inalienable right to self-defence, adding that they would continue fighting Hamas in Gaza regardless of the court’s decisions.
But the affirmed plausibility of South Africa’s claims by the court is landmark, especially given the provisional measures that were granted. The ruling permanently stains Israel with the label of genocide from 15 international jurists at the World Court. Israel has long justified its political violence vis-à-vis Palestinians as security measures or as actions in furtherance of its legitimate self-defence. The court essentially dismissed such justifications in this context. Experts are of the view that Israel and her allies would need to alter their conduct in Gaza to prevent a ruling in South Africa’s favour on the merit of the case. The United States too has to be concerned about being complicit in genocide.
A most notable feature of the Court’s opinion is its near-unanimity and judges voting in line with their conscience and not political alliances. ICJ President, Joan Donoghue (the U.S. judge) delivered a summary of the reasons and read the order with a calm and authoritative demeanor – though contrary to the position of the United States in this matter. In addition, where the ICJ is normally composed of a panel of 15 judges, two judges were appointed ad hoc by both parties for these hearings. Dikgang Moseneke (South Africa) voted in favour of all six provisional measures indicated by the Court, whereas Aharon Barak (Israel) only voted in favour of measures (3) and (4). On the other hand, Judge Julia Sebutinde (Uganda), the first African woman serving at the ICJ, voted against all proposed measures as she attributes the origins of the dispute to politics and history rather than to legal matters to be settled by the Court.
South Africa’s case against Israel is not completely unprecedented. In 2019, Gambia brought a case against Myanmar to the ICJ, alleging the country had committed genocide against the Rohingya people. The case of Russia’s “special military operation” in Ukraine has also been brought to the Court, with Russia cleared of terrorism. However, the current case against Israel has elevated the ICJ’s stature to a new level of renewed public attention to the workings of the International Court of Justice and the possibility of quietly de-escalating a raging international conflict. The war in Gaza is far from over and there is no international police force to enforce the Court’s order to end it. But it is pleasing that the international system has not forgone dialogue and legal resolutions that should be binding on all.
