HIKMA SUMMIT
OF INTERNATIONAL RELATIONS

South Africa v. Israel

On 29th December 2023, South Africa initiated proceedings against Israel, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) in the Gaza Strip. This case was marked by South Africa's request for the International Court of Justice (ICJ) to indicate provisional measures to address the situation. 

Public hearings were held on 11th and 12th January 2024, where South Africa's lawyers presented evidence, suggesting that Israeli leaders intended to bring about the destruction of a substantial part of the Palestinian group.

On 26th January, the ICJ delivered its order: some of the acts alleged by South Africa are capable of falling within the provisions of the Convention, thus the Court has jurisdiction to proceed to the merits. Moreover, as a link exists between the rights claimed by South Africa and some of the provisional measures requested, it was considered necessary to indicate certain provisional measures. Finally, it was emphasized that all parties to the conflict are bound by international humanitarian law, including armed groups and signatory countries of the Convention on genocide.

However, in light of the situation of widespread starvation oppressing Gazans, South Africa considered it necessary to present an Urgent request for the indication of additional provisional measures”. As of the last update on 6th March, the decision on this request is pending. 

South Africa’s Intervention

On 29th December 2023, South Africa was very conscious when alleging Israel of crimes against the Convention on genocide. With a profound understanding of the atrocities of apartheid, its intervention is deeply rooted in the Freedom Charter, emphasising the pursuit of peace and friendship on the global stage: South Africa shall strive to maintain world peace and the settlement of all international disputes by negotiation - not war […] (Article 10).

Going beyond parallels between apartheid-era South Africa and present-day Palestine, Pretoria stands in solidarity with oppressed people to see international law observed and the path of war avoided. At the heart of this approach lies the spirit of Ubuntu. Through this philosophy of peaceful conflict resolution, the country seeks not only to heal its own wounds through resolution instead of vengeance, but to foster a new civilization grounded in shared humanity and collective responsibility. 

The Rise of the Global South

South Africa’s denunciation stands out for coming from the Global South. Many countries have welcomed it openly, such as Turkey, Jordan, The Maldives, Namibia, Pakistan.

On 8th February Nicaragua filed an application to intervene in the case, being a part to the Convention on Genocide and morally subject to the duty to make it respected. On the other hand, Indonesia, that is not a party to Genocide Convention, but morally and politically backing the application, has taken the lead in a separate proceeding of ICJ regarding legal implications of Israel’s policies and practices in the occupied Palestinian Territories. Indeed, in December 2022, the UN General Assembly appealed to the ICJ for an advisory opinion, which  fits into a context of increasing international pressure on Israel. Indonesia was the first country to confirm its participation in the oral hearings held in February 2024.

By contrast, Israel’s allies have mostly maintained silence or have opposed the lawsuit. Specifically, Germany and the UK have been accused of double standards, after refusing to support the case. As a matter of fact, in November 2023 Canada, Denmark, the Netherlands, France, Germany and the UK intervened in the Gambia v. Myanmar case under the framework of the genocide convention. As non-injured states, they submitted detailed legal documents to urge ICJ to adopt a more open approach in addressing genocide against the Rohingya community, considering factors like mass displacement and its impact on children. Their collective efforts later provided South Africa with a robust legal brief. Due to the constraints imposed by this previous stance, it has become challenging for them to support Israel at the ICJ, in particular for Germany,  which has declared its intention to intervene.

Challenges and Achievements 

When alleging a State of genocide, the first challenge stands in proving the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (Art. II, Convention on Genocide). As it requires several rounds of exchanging of material between the parties, the ICJ’s final decision is expected to take years. Secondly, when the order was issued, it was perceived as disappointing by those expecting a ceasefire. Despite the court giving no explanation, the cause may be either the fact that an extraordinary level of consensus on the provisional measures had already been reached among the 16 judges or because Israel had argued that any provisional order by the court to halt the fighting would tie Israel’s hands and not Hamas’s.

In addition, the Court’s decision exceptionally does not contain any order not to do something, but an obligation to act - by taking humanitarian measures in relief of the civilians in Gaza and submitting a report to the Court within one month. Yet, it is not very demanding because of the risk to threaten state sovereignty and to put prejudice on the merit of the case.  

Conclusion

Overall, the Security Council has primary responsibility for the maintenance of international peace and security (Article 24, UN Charter). Thus, ICJ is not the forum of first resort for concerns about international peace, security or humanitarian crises, nor international jurisdiction has the tools to enforce its judgements. However, since lasting solutions cannot be found within the political organs of the United Nations, they must be sought elsewhere.

According to UN legal advisors, the instrument of genocide convention would have been used by countries allied with the most powerful ones. South Africa has denied this belief. Pursuant to the living instrument doctrine, a principle in legal interpretation, legal texts should evolve with societal values rather than being strictly bound by the original intentions of the drafters. South Africa v. Israel may play an important role in turning international law upside down, by pushing the Global South to bring cases before judicial institutions, so as to overcome the limits of political institutions, specifically veto power. Yet, it is an opportunity for international law to move towards a new rules-based order through a long, non-linear and bloody transformative process.