In a landmark move on December 29th of 2023, South Africa initiated legal action against Israel at the International Court of Justice (ICJ), alleging violations of the 1948 Genocide Convention due to Israel’s actions in Gaza. This unprecedented case raises not only complex legal questions but also shines a spotlight on ongoing humanitarian crises and South Africa’s unique role in advocating for global justice.
While Israel firmly denies the allegations, South Africa’s push for legal accountability in defense of Palestinian rights strikes a chord in the ongoing global debates surrounding human rights, international law, and the ethics of conflict resolution. As tensions in Gaza escalate and the international community grapples with rising violence, South Africa’s filing of the case and the provisional measures provided by the ICJ could shape how governments and institutions respond to these long standing issues.
Legal Basis of South Africa’s Case
South Africa’s case against Israel hinges on allegations that Israel’s military and governmental actions in Gaza constitute violations of the Genocide Convention. Signed in the aftermath of World War II, the Genocide Convention outlines the responsibility of states to prevent and punish acts of genocide. South Africa’s legal argument is rooted in the Erga omnes principle, which holds that states have a universal duty to intervene in cases of genocide, regardless of whether the acts occur within their own borders. In invoking this principle, South Africa positions itself as an enforcer of international law, emphasizing its moral and legal obligation as a signatory to the Genocide Convention.
South Africa’s approach follows a precedent set by The Gambia’s case against Myanmar for genocide against the Rohingya at the ICJ in 2019. The success of that case, where the ICJ took a rare step in imposing provisional measures to protect the Rohingya, may have emboldened South Africa to pursue similar avenues for addressing what it views as systematic and deliberate destruction of the Palestinian people in Gaza. Provisional measures issued by the ICJ are urgent, temporary orders aimed at preserving the rights of the parties involved in a case, preventing irreparable harm, or maintaining the status quo until the court reaches a final decision.
By seeking these measures to halt Israel’s military expansion in Gaza, South Africa signals the urgency and gravity of its claims, emphasizing the need for immediate international intervention. Key to South Africa’s argument is demonstrating the intent to destroy a group “in whole or in part,” as required by the convention’s definition of genocide. This is where the challenge lies: establishing that Israel’s military actions, blockades, and other policies are not merely acts of war or defense but meet the stringent legal threshold for genocide. And proving this intent, without direct statements or testimonies, is exceedingly difficult.
International Precedent
The ICJ has historically played a crucial but cautious role in adjudicating cases related to genocide and crimes against humanity. In its previous cases such as Bosnia and Herzegovina v. Serbia and Montenegro, and most recently, The Gambia v. Myanmar, the ICJ has navigated a delicate balance between affirming international legal principles and managing the political sensitivities surrounding state sovereignty. In the Bosnia case, while the ICJ recognized that genocide had occurred in Srebrenica, it stopped short of holding Serbia directly responsible for the genocide itself. Similarly, in the Myanmar case, the court ordered provisional measures to protect the Rohingya, but full accountability remains an ongoing process, highlighting the challenges of enforcing rulings against states with powerful political backing.
In these cases, the ICJ has emphasized the importance of provisional measures, which can temporarily halt actions deemed likely to result in further violations of international law. If the court decides to implement such measures in the South Africa-Israel case, it could pressure Israel to alter its policies in Gaza in the short term. However, the process for establishing a final judgment can take years, as seen in previous ICJ cases like The Gambia v. Myanmar, making the immediate diplomatic consequences uncertain. Moreover, Israel’s potential refusal to recognize or comply with the ICJ’s ruling, a concern shared by many powerful states, could further complicate the enforcement of any judgment. While the ICJ’s decisions are legally binding, the court lacks an enforcement mechanism. Thus, geopolitical factors have often influenced the degree to which its rulings are respected or implemented.
In the case against Israel, which maintains strong diplomatic and military support from allies like the United States, the broader international response will be critical in determining the efficacy of South Africa’s legal pursuit. As of June, only twelve additional countries have signed onto the case in support of South Africa, none of which are G-7 countries and a majority of which are located in the Global South. This support additionally highlights the growing geopolitical significance of non-Western, non-G-7 nations in shaping the multinational legal order, as they are beginning to fundamentally challenge the historical dominance of Western perspectives on global justice and international law. These trends situate South Africa as a genuine anomaly, as it makes declarations to stand up against both genocidal actions and Western hegemony.
South Africa’s Foreign Policy and Anti-Colonial Legacy
South Africa’s decision to pursue legal action against Israel at the ICJ is deeply rooted in its own historical experience of apartheid and oppression. Since the fall of apartheid, South Africa has championed anti-colonial and anti-imperialist causes, positioning itself as a moral voice in global debates on human rights and social justice. Its vocal criticism of Israel’s policies toward Palestinians reflects this broader foreign policy approach, which prioritizes solidarity with oppressed peoples and the defense of human rights.
In the May 16th hearing of this case, South African academic, Max du Plessis, described Israel’s invasion of Rafah as both “a political calamity and a humanitarian nightmare.” Such sentiments were echoed by other South African scholars and politicians, underscoring the severity of crises in the area in terms of access to humanitarian aid, hospitals, shelter, and persistent threats of violence. By bringing this case forward, South Africa is aligning itself with other states and movements that view the Israeli occupation of Palestinian territories as a form of colonialism and apartheid. South African leaders have often drawn parallels between the Israeli-Palestinian conflict and their own struggle for liberation, framing Israel’s policies as a continuation of imperialist practices that the global community must confront.
This case also serves as a platform for South Africa to assert itself as a leader in the international arena. With its history of overcoming apartheid and championing human rights, South Africa is positioning itself as a voice for global justice and civil rights, particularly for marginalized groups. By bringing this case forward, the country underscores its commitment to addressing injustices that resonate beyond its borders, aiming to solidify its role as a leader in the international civil rights movement. Although the country’s influence on global geopolitics has waned since the Mandela era, its stance on Israel aligns it with emerging trends in global diplomacy, particularly among countries in the Global South. Many of these nations, which have historically borne the brunt of colonialism and exploitation, see the Israeli-Palestinian conflict as emblematic of broader struggles for justice and self-determination.
Broader Implications for International Law and Accountability
The South Africa-Israel case at the ICJ presents an opportunity to test the strength of international law in addressing modern conflicts. While laws against genocide exist, holding countries accountable is often tricky. Proving intent and navigating the politics behind these cases make it tough for courts like the ICJ to reach enforceable decisions. One of the key challenges the ICJ faces is maintaining its authority and relevance in a world where powerful nations often bypass or ignore its rulings. By taking this case forward, South Africa is attempting to hold Israel accountable through legal channels that may otherwise be neglected in diplomatic discussions dominated by powerful geopolitical interests. Similar efforts have been seen in the past, such as when Palestine referred Israel to the International Criminal Court (ICC) in 2018 over alleged war crimes, though such cases often face resistance from states with strong political backing.
The case also raises important questions about the future of global accountability mechanisms, like the International Court of Justice or the International Criminal Court, which investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the global community. In an increasingly multipolar world, where the influence of Western powers is being challenged by rising nations in the Global South, this case could signal a shift toward a more democratized system of global justice. Countries like South Africa, with a legacy of fighting oppression, may seek to leverage international law to check the power of states that have traditionally dominated global affairs.
A Test of International Justice
South Africa’s case against Israel at the ICJ represents more than a legal challenge; it is a commentary on the state of international justice and the global order. The legal, diplomatic, and ethical issues it raises will likely reverberate far beyond the courtroom, influencing how future conflicts are understood and addressed in the international community. The ICJ’s eventual decision, whether in favor of South Africa or Israel, will set a significant precedent for how the international community handles allegations of genocide and other serious human rights violations. This holding may come as quickly as the end of October, but may continue longer if no findings are made. In the meantime, Vincent Magwenya, Spokesperson to the President of South Africa remarked, “while the case is in progress, we hope that Israel will abide by the court’s provisional orders issued to date.” Moreover, it will provide insights into the evolving role of international law in shaping global justice and accountability, particularly for marginalized peoples like the Palestinians. Ultimately, this case underscores the importance of the ICJ as a forum for addressing some of the most pressing moral and legal challenges of our time.
Featured Image Source: NY Times
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