Dear Readers,
I am not an expert in international humanitarian law, but in an effort to answer some of the questions I have gotten about what is happening in the International Court of Justice (ICJ), I provide some basic information about the case and where to find more information.
As with everything I write here, I try to be transparent about my position because I know, even if I wanted to be “neutral” (though I do not believe neutral exists), my thoughts and opinions infuse all that I write, even if only subtly. To gain a sense of where I am writing from, please check out my January 15th edition. In that piece, I also provide an immense resource list in the footnotes, defining terms like apartheid, occupation, ethnic cleansing, etc., as well as information about the wall, checkpoints, and law1— terms mentioned in South Africa’s application to the ICJ.
Now to what’s happening in the ICJ. Below, I introduce information about what’s going on and then break it apart to explain each component.
On December 29, 2023, the state of South Africa filed an application against the state of Israel in the International Court of Justice alleging that Israel was in breach of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in its actions against Palestinians in Gaza. 2
What is the International Court of Justice3?
According to the ICJ itself, “[t]he International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.” It is considered “the World Court.” An earlier iteration of this court existed before the UN, founded in 1922 by the League of Nations. It was dissolved and re-formed into the ICJ.
What kinds of cases does the ICJ hear?
The ICJ “settle[s], in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.”
In other words, the ICJ primarily handles disputes between states. It does not prosecute individuals, and individuals cannot bring claims to the ICJ.
In order for a state to bring an application against another state to the ICJ, there must be an active dispute between the two states.
How can South Africa bring this application against Israel?
South Africa can bring this application because it is a state that is a signatory of the Genocide Convention (explained below), as is Israel. The Genocide Convention Articles VIII and IX allow any signatory state to bring a claim in the ICJ against another signatory state.
In its argument as to why the ICJ has jurisdiction (or is allowed to hear the case according to the law) over this case, South Africa stated in its application beginning on page 4, that it has an active dispute with Israel:
South Africa has repeatedly and urgently expressed its concerns and condemnation in respect of Israel’s acts and omissions which form the basis of this Application. South Africa and other States Parties to the Genocide Convention have, in particular, made clear that Israel’s actions in Gaza constitute genocide against the Palestinian people.
Why didn’t the Palestinians file this application, and why did South Africa file the application?
Why not the Palestinians? Not every country recognizes Palestine as a state.4 There is a very long history regarding this issue.5 Some scholars have suggested that Palestine could not bring the case themselves, and others observed that the issue of jurisdiction (whether the court has the power to hear the case) would be too contentious, possibly causing the case to be dismissed by the court.
Why South Africa? There are many aspects to this, and I am sure there are many reasons for this, including some that have not been publicized. To summarize, there is a long history of solidarity between Black South Africans and Palestinians as both groups fought against settler colonialist governments that created apartheid systems stripping them of rights and perpetrating profound state violence and state-sanctioned violence against them.6
Indeed, as you may have heard in the news coverage of this case, Nelson Mandela famously wore a keffiyeh (the traditional Palestinian black and white scarf7) in solidarity, and stated, “We know too well that our freedom is incomplete without the freedom of the Palestinians.”8
In addition, Israel sold weapons to the Apartheid South Africa, and those weapons were used against Black South Africans in their struggle for liberation.
What is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, otherwise called the Genocide Convention?
Genocides are part of our collective history and have been committed numerous times all over the world. However, prior to the Holocaust, it was, as Winston Churchill said “a crime without a name.” (I recognize the cruel irony of quoting a British Prime Minister here).
To make a long story short, Polish-Jewish lawyer Rafael Lemkin, who was a refugee during World War II, coined the term “genocide,” “a hybrid word consisting of the Greek prefix genos, meaning race, and the Latin suffix cide, meaning killing.” In creating the term, Lemkin, who himself was grieving the murder of numerous family members during the Holocaust, was committed to changing international law in the hopes of preventing the horrors of the Holocaust and other genocides from occurring again.9
According to the United Nations
[t]he Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations on 9 December 1948 and signified the international community’s commitment to ‘never again’ after the atrocities committed during the Second World War.
The Convention has numerous articles, including those that define genocide (see #6), and those that describe the obligations of states and the mechanisms in place to bring a state to the ICJ (see #3). It is relatively short so I encourage you to take a look for yourself.
What is the definition of genocide?
Article I states that genocide can be “committed in time of peace or in time of war.” Article II defines genocide as
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
What are the acts covered by the Convention?
Article III outlines five acts punishable under the Convention: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
What is South Africa accusing Israel of?
The South African application to the ICJ is an 84-page document. I highly recommend that you take a look for yourself. It is not written in legalese, except for the jurisdiction component, and is very readable.
First, South Africa “unequivocally condemns” the attacks that the military wing of Hamas and its allies carried out against Israeli civilians, military and law enforcement personnel.10 Notwithstanding, the brief states
No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’),1 whether as a matter of law or morality
Ultimately, and in very brief terms, South Africa is alleging that Israel is failing to prevent and is actively committing a genocide against the Palestinians in Gaza. It alleges
The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’). The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.
What is South Africa asking the ICJ to do?
On page 72 of its application, South Africa is requesting that the ICJ issue provisional measures, meaning measures that would go into effect immediately, “to protect the rights invoked herein from imminent and irreparable loss.” They are asking for the ICJ to issue these more immediate measures as the ICJ makes a decision on the merits of the case, which means the court examines all the evidence and arguments presented to issues to determine whether to prosecute Israel of genocide.
South Africa requested on page 72 that “[i]n light of the nature of the rights in issue, as well as the ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza, South Africa requests that the Court address this request as a matter of extreme urgency.”
Specifically, on pages 82-83, South Africa is asking the ICJ to issue measures demanding that Israel
(1) “immediately suspend its military operations in and against Gaza”;
(2) that all armed units stop participating in the above;
(3) “take all reasonable measures within their power to prevent genocide”;
(4) “desist from the commission of any and all acts within the scope of Article II of the Convention; and,
(5) “desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
(a) the expulsion and forced displacement from their homes;
(b) the deprivation of: (i) access to adequate food and water; (ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation; (iii) medical supplies and assistance; and (c) the destruction of Palestinian life in Gaza.”
On Thursday, January 11, 2024, and Friday, January 12, 2024, South Africa and then Israel presented their arguments in front of the 15-judge panel of the ICJ. After hearing the arguments, the court will deliberate. On January 12, 2024, the ICJ issued a press release detailing what has occurred thus far.
Where can I watch the South African presentation to the ICJ?
I do not listen to or watch mainstream media and was unaware until I saw on X (formally Twitter) that U.S. mainstream media did not cover or play South Africa’s presentation to the ICJ, and I believe this is also true of the U.K. media. While this is unsurprising, it is a true shame — a literal and figurative shame. It was an important presentation and I hope you will take the time to watch it, or at least watch Blinne Ní Ghrálaigh’s closing statement.
To watch South Africa’s presentation in full, visit the Middle East Eye’s YouTube channel. You can also read the full transcript on the ICJ’s website.
If you do not have time to watch the full three-hour presentation, Blinne Ní Ghrálaigh’s closing statement is a powerful summary of South Africa’s case.
Where can I watch the Israeli presentation to the ICJ?
Again, from the formerly known Twittersphere, I understand that Israel’s defense was covered and aired by the U.S. mainstream media.
To watch Israel’s full presentation, visit the Middle East Eye’s YouTube channel. You can also read the full transcript on the ICJ’s website.
Now what?
Now we wait. Best guesses by ICJ and international law experts are that the court will issue its decision as to whether to issue provisional measures and/or what the provisional measures will be in the next couple of weeks. Some think it could be sooner because of the urgency of the situation but warn that the court can take as long as it would like.
The ICJ could adopt the provisional measures as presented by South Africa, or it could issue other provisional measures. For example, legal scholar Adil Ahmad Haque put forward some alternative measures in his January 15, 2024, Just Security article.
The ICJ’s decision on the merits as to whether Israel is in breach of the Genocide Convention due to its actions in Gaza and face prosecution in the ICJ for genocide could take years.
If the ICJ issues provisional measures, can it enforce them?
No. Like the U.S. Supreme Court, the ICJ itself does not have the capacity to enforce its orders, though the orders are binding on Israel. If Israel fails to comply, the ICJ’s decision does allow South Africa to go to the UN Security Council and request that body enforce the opinion through a resolution. However, the U.S. has vetoed any resolutions against Israel more than 46 times, including a recent effort to pass a resolution for a ceasefire, and so it is highly unlikely that the Security Council will provide a source for enforcement.
In recent days, countries around the world have been weighing in on this case — some in support of Israel, such as the U.S., the U.K., and Germany, and some in support of South Africa, such as Malaysia, Turkey and Jordan, to name only three, as well as a coalition of 100+ NGOs from around the world. Additionally, numerous human rights experts and UN rapporteurs have also expressed support for South Africa’s case.
Germany recently announced that it may intervene in the ICJ case on behalf of Israel. This means that Germany could present evidence and argue on behalf of Israel in the ICJ. For numerous reasons, this has been an incredibly contentious announcement by Germany, including but not limited to the fact that Germany itself has been the perpetrator of genocide in Namibia and elsewhere.11 Only time will tell if other nations choose to intervene.
Lastly, I have seen on X / Twitter that South Africa has notified the U.S. that it may institute proceedings against it in ICJ for being complicit in genocide under Article III(e) of the Genocide Convention. More on that as it unfolds.
Thank you for reading,
Amy
The ICJ is not to be confused with the International Criminal Court (ICC) that was founded in accordance with the Rome Statute in 2002. As Human Rights Watch explains, this court “prosecute[s] individuals accused of genocide, war crimes, and crimes against humanity, all defined in the court's treaty.” Human Rights Watch has a comprehensive explainer.
Human Rights Watch also has an interesting page discussing the U.S. and the ICC given that U.S. is not a signatory of the Rome Statute.
For more on this, I recommend Rashid Khalidi’s The Hundred Years' War on Palestine: A History of Settler Colonialism and Resistance, 1917–2017.
You can also check out the teach-in series from the Rutgers Center for Security, Race and Rights or Jadaliyya.
For more on this, check out Badil’s article, “South Africa’s Second Anti-Apartheid Movement”, as well as South Africa’s Palestine Solidarity Alliance.
For more on the history and symbolism of the keffiyeh, check out Al Jazeera’s The Take episode from January 11, 2024, or the article by Mosab Shawer, “"Making a Palestinian symbol,” Al Jazeera (Jan. 5, 2024).
The South African brief states: “South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.”