On December 29, 2023, the Republic of South Africa instituted proceedings against Israel in the International Court of Justice (ICJ). In its application, South Africa argued that the manner in which Israel was conducting its military operations in Gaza violated the international Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The ICJ held a hearing on “provisional measures” on January 11-12, 2024, where South Africa and Israel were given three hours each to present their cases. A ruling from the World Court on the issue of provisional measures is awaited.
The case has generated immense debate. At the time of writing, Bangladesh and Jordan have issued statements that they will intervene in the case, in support of South Africa’s application. Germany has stated that it will intervene in support of Israel (intervening states can, however, only advance submissions on the question of the interpretation of the Genocide Convention). While a number of other countries, predominantly from Latin America and the Middle-East, have issued official statements supporting South Africa’s application, others — most notable being the United States, the United Kingdom, and France — have signalled their opposition to it, with France going so far as to threaten non-compliance if the ICJ ends up issuing a finding of genocide against Israel.
The legal context
In order to make sense of this debate, it is important to understand the international legal context of these proceedings. The crime of genocide is characterised by actions intended to destroy in whole, or in substantial part, a defined group of people. Genocide is treated as the most serious of international crimes. For this reason, every state has an obligation (known as an “erga omnes obligation”) to take steps to prevent the occurrence of genocide, wherever it may occur. This is the basis on which South Africa, a party that is technically unrelated to the conflict in Gaza, claims standing to bring this case to the ICJ. This is not new. In recent times, The Gambia instituted proceedings against Myanmar with respect to the genocide of the Rohingya, and successfully obtained provisional measures.
At the same time, demonstrating the existence of the crime of genocide, however, requires demonstrating specific intent (“dolus specialis”), which is often a tall order. It is for this reason that South Africa’s request for provisional measures, and the hearing on January 11-12, were particularly important. “Provisional measures” are equivalent to what we would understand as “interim orders”: they are issued pending the final determination of a case, in order to protect the rights of either party from being irreparably harmed. For obvious reasons, at the stage of provisional measures, the threshold of proof is much lower than in a final hearing — as The Gambia versus Myanmar case showed, a party must only demonstrate a plausible case that genocide is being carried out.
In order to make out this plausible case, other than highlighting the decades of Palestinian dispossession and suffering from the 1948 nakba, the number of deaths in Gaza during the present war (24,000-plus, on the last count), the widespread destruction of civilian infrastructure (from hospitals to universities), and the imminent threat of famine and disease (as noted by United Nations officials), South Africa also argued that high-level Israeli politicians (from the President and Prime Minister, downwards) had made genocidal statements, which were then echoed by soldiers on the ground in Gaza, while making TikTok reels.
Israel, on the other hand, argued that there was no dispute between the parties, and that even if there was, these statements were open to more than one interpretation, and in any case, did not reflect operational protocols of the army. It said that the scope of the military operation was limited to destroying Hamas (and to that extent, the operation was consistent with the rules of international humanitarian law), in response to Hamas’ attacks on October 7, which had killed around 1,200 people, and led to around 240 people being taken hostage.
The next stage
The key question at this stage is that if the ICJ finds that South Africa has fulfilled the plausibility requirement, what are the provisional measures that it might order? South Africa has asked for an immediate cessation of military hostilities. International law experts are of the opinion that the court might not be able to go that far (although it did do so recently, in the Ukraine versus Russia case); the core issue, then, is about how the court will tailor its provisional measures. A range of alternatives have been suggested — from compelling Israel to allow the entry of food and other resources into Gaza (in order to stave off the threat of famine), to a humanitarian ceasefire, to directing Israeli leaders to refrain from making further genocidal statements. The court also has the power to craft its own interim measures, beyond what the parties have asked for.
It is important to note that the ICJ is not the only forum for proceedings that have to do with the situation in Gaza. It has been asked why the ICJ proceedings are one-sided, in that it is only Israel in the dock, and not Hamas. The answer to that is that Hamas cannot be brought to the ICJ, as it is a non-state actor. Hamas officials (and also, Israeli officials) can, however, be proceeded against at the International Criminal Court (the ICC), which is a different body from the ICJ. This would require the situation in Palestine/Israel to be referred for investigation to the ICC, which has already been done. So far, however, no further steps have been taken by the ICC.
Beyond the law, the nature of the split between countries has led to debate. It has been pointed out, for example, that in The Gambia versus Myanmar case, Germany (along with a group of other states) intervened and argued in favour of a broad reading of the Genocide Convention. It is now being wondered aloud how the same nation-state will intervene in the South Africa versus Israel case, and seemingly advocate an opposite position.
More than that, however, with a few exceptions (such as Belgium) the split, as documented by the international law scholar Alonso Gurmendi, seems to track the divide between countries that were formerly colonial or imperial powers, and countries that were not.
A defining moment
This is not entirely coincidental: it has long been argued that modern international law was invented by the imperial “West”, with a view to safeguarding its own material interests. For this reason, these proceedings are being viewed by many not only as being about Israel, Palestine, and the war in Gaza, but also about the legitimacy of international law itself, a situation that is not helped by belligerent statements issued by nation-states such as France. While the ICJ’s order on provisional measures, and, subsequently, its decision in the main case, is vital primarily for the purpose of helping to mitigate, and imposing legal accountability for, the suffering in Gaza, beyond that, it is also a vital stress test of what is often referred to as the “rules-based international order”. Whether that term has any bite, or whether it is only a convenient fiction, will become particularly clear over the next few months, depending on what the ICJ does, and how other nation-states respond.
Gautam Bhatia is New Delhi-based lawyer
