OPINIONISTA: South Africa’s case against Israel at the International Court of Justice – a brief explainer

Thamsanqa ‘Thami’ Malusi is an admitted attorney with special interest in human rights, constitutional law, land reform and general litigation. He completed his LL.B. at the University of Cape Town in 2014, and a Bachelor of Social Science degree in political and legal studies from the same institution in 2012. He was also awarded an LL.M from the University of California, Los Angeles in 2020. He has worked as a litigation attorney both in South Africa and the United States. He also clerked at the Constitutional Court for Justice Mhlantla.

Many would agree that the Palestinian people who reside in the territories occupied by Jewish Israelis are among the most oppressed people in the world. 

In February 2022, Amnesty International released a 280-page report titled, “Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity”. The report found that “since its establishment in 1948, Israel has pursued an explicit policy of establishing and maintaining a Jewish demographic hegemony and maximising its control over land to benefit Jewish Israelis, while minimising the number of Palestinians and restricting their rights and obstructing their ability to challenge this dispossession.”

Similarly, in a report to the UN General Assembly dated 25 October 2023 on the Israeli settlement activities in the Occupied Palestinian Territories, the UN Secretary-General found that “[o]ver 56 years of Israeli military occupation of the Occupied Palestinian Territory – the West Bank, including East Jerusalem, and Gaza – and continued expansion of settlements over Palestinian land severely affect a wide range of rights of the Palestinian people, including the right to self-determination.”

Against this backdrop, on 7 October 2023, the world watched in horror as the military wing of Hamas, a Palestinian Islamist movement listed as a terrorist organisation by the United Nations, launched an indiscriminate surprise attack on Israel, which saw about 1,200 Israelis and foreign nationals killed. 

Since this attack, the Israeli government declared war against Hamas and launched a military assault in Gaza which, according to the Palestinian Health Ministry, has seen more than 21,110 Palestinians killed to date – 70% of whom are believed to be women and children. 

Following these attacks in the Gaza Strip, on 29 December 2023, South Africa filed an application before the International Court of Justice (ICJ) instituting proceedings against the state of Israel. 

In the application, South Africa alleges Israel has committed acts of genocide against the people of Palestine in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

South Africa’s application to the ICJ has been widely celebrated here at home and abroad. However, and as with most legal developments, very few people have a decent grasp of what the application entails or the process to unfold pursuant to its filing. 

The legal intricacies
Considering the wide public interest this matter has garnered, I thought it apt to attempt to provide some clarity on some of the legal intricacies. 

The ICJ, headquartered in The Hague, is the principal judicial organ of the United Nations and is established in terms of Article 92 of the UN Charter, read with the Statute of the ICJ. Only sovereign state actors can be parties in cases before the ICJ. 

The UN Charter provides that all member states of the UN are deemed to be parties to the Statute of the ICJ, meaning that all UN member states can bring a dispute before the ICJ for alleged violations of international law. Both South Africa and Israel are members of the United Nations and therefore parties to the Statute of the ICJ.

In the application before the ICJ, South Africa argues that since the events of 7 October 2023: “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention”. 

In particular, South Africa claims, among other things, that Israel has engaged in and failed to prevent the killing of Palestinians in Gaza; has caused the forced evacuation and displacement of around 85% of the Palestinians in Gaza; has destroyed Palestinian life in Gaza; imposed measures intended to prevent Palestinian birth in Gaza. 

These acts and omissions by Israel, South Africa argues, are genocidal in nature and therefore violate the Genocide Convention.

Notwithstanding these charges against Israel, South Africa submits as part of its application that it “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.”

Treaties and Conventions under international law, which are for all intents and purposes agreements between state actors, are only binding upon the state parties who are signatories to them. Both South Africa and Israel are party to the Genocide Convention and, as such, both are bound by it.

The ICJ, in terms of Article 9 of the Genocide Convention, has jurisdiction over any dispute concerning the convention. The ICJ therefore has jurisdiction to hear South Africa’s application that Israel has committed acts of genocide in Gaza.

It is for this reason that the Israeli government has publicly indicated that it will defend itself at the ICJ against South Africa’s charge of genocide.

The relief sought by South Africa in its application is a declarator to the effect that Israel has committed acts of genocide in Gaza and for the ICJ to instruct Israel to cease committing these acts of genocide.

South Africa further seeks an order for Israel to perform the obligations of reparations in the interest of Palestinian victims, together with an assurance from Israel of non-repetition of violation of the Genocide Convention. This is the main application.

Pending the ICJ’s determination of the main application, South Africa has also urgently sought provisional measures in terms of Article 41 of the Statute of the ICJ to protect the Palestinians’ rights invoked in the main application from imminent and irreparable loss. 

The provisional measures sought by South Africa include an order by the ICJ that “Israel shall immediately suspend its military operations in and against Gaza” and “ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

The provisional measures application will be heard before and separately from the main application. The application is set down for oral argument on 11 and 12 January at The Hague.

To my understanding, no hearing date has been set as of yet for the main application.

ICJ hearings are public unless the court decides otherwise or one of the parties demand the hearing to be private. There is no indication that this hearing will not be public. 

Judgment
Following oral arguments, the ICJ judges will deliberate in private and provide a judgment when ready. Judgments of the ICJ are final and are without appeal. If previous practice is any indication, the ICJ should deliver judgment on the provisional measures application in a week or so after the hearing. 

Article 94 of the UN Charter provides that each member state “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”.

This means both South Africa and Israel are bound by whatever decision the ICJ makes in respect of the application. 

In the past, some state actors who had adverse findings made against them by the ICJ, simply ignored the ICJ’s binding orders.

For example, on 26 February 2022, Ukraine filed an application in the ICJ against Russia for violation of the Genocide Convention for its invasion of Ukraine, which also included a request for provisional measures. 

On 16 March 2022, the ICJ made a finding on the provisional measures sought by Ukraine and ordered Russia “[to]immediately suspend the military operations that it commenced on 24 February 2020 in the territory of Ukraine”. Russia has ignored this order. 

Article 94 further provides measures in the event that state actors ignore the ICJ’s orders in that the aggrieved party may approach the UN Security Council for recourse, which may “make recommendations or decide upon measures to be taken to give effect to the judgment.” 

Veto powers
The permanent member states of the UN Security Council —  China, France, Russia, the United Kingdom and the United States — have veto powers. 

This means should the ICJ find against Israel and Israel fails to perform its obligations provided in the ICJ order, any recourse by South Africa to the Security Council in terms of Article 94 would have to be supported by at least all the permanent member states. 

However, there is a long history of vetoes by the United States of UN Security Council draft resolutions to protect Israel. 

On 26 October 2023, Al Jazeera reported that since 1945, a total of 36 UN Security Council draft resolutions have been vetoed by the five permanent member states relating to Israel-Palestine, of which 34 were vetoed by the United States. 

The most recent of these United States’ vetoes came on 18 October 2023, where it blocked a UN Security Council draft resolution calling for a pause in the current Israel-Palestine violence to allow for humanitarian assistance in Gaza. 

Whether the ICJ will find in favour of South Africa – and if it does, whether Israel will comply with the order of the ICJ in honour of its international law obligations, or its compliance would have to be forced by the UN Security Council (the United States willing) – remains to be seen.

Regardless of how the case eventually pans out, using social media as the metric for measurement, the South African government’s decision to institute these proceedings seems to enjoy wide public support. 

Unsurprisingly, the Israeli government, through its spokesperson Eylon Levy, has labelled South Africa’s application as “blood libel” and accused the country of having “made itself criminally complicit with Hamas’ campaign of genocide”. 

The statement goes on to say that “history will judge South Africa for abetting the modern heirs of the Nazis.” DM