Over the past few days, South Africa’s bold initiative of taking Israel to the International Court of Justice (ICJ) has been applauded by many in the international community. At a time when there seems no reasonable prospect of an imminent ceasefire, South Africa is utilising one of the few legal mechanisms that could produce urgent results.
On December 29, South Africa asked the ICJ to make an order of provisional measures against Israel. Specifically, it asked that Israel immediately suspend its military operations in Gaza and take all reasonable steps to prevent genocide.
It further asked that Israel be prevented from destroying evidence that it has committed genocide. In its application, South Africa asked the ICJ to do so on an urgent basis. Because of the “exceptional urgency”, it requested that the court hear the matter this month.
Provisional measures exist precisely to help resolve a question of international law in the context of imminent harm and danger. In essence, the ICJ is not a court tasked with adjudicating matters involving individual criminal responsibility for international crimes. That task falls on the International Criminal Court (ICC), the court specifically set up to try international crimes committed by individuals.
But this is not the first time the ICJ has been confronted with the question of genocide. In late 2019, The Gambia brought the case of Myanmar to the ICJ. The Gambia asked the court to order Myanmar to stop the genocide of the Rohingya minority. The ICJ in that case granted the provisional measures and the Myanmar government was ordered to desist from acts of genocide.
Both South Africa and Israel are signatories to the 1948 Genocide Convention, under which disputes regarding the interpretation of the convention should be referred to the ICJ. One interesting point made by South Africa in the carefully crafted 84-page application presented to the ICJ is that the country is bringing the application because it has an obligation to prevent genocide. The Genocide Convention was signed by 153 countries and all signatories share this obligation.
One of the most interesting theoretical questions posed by a request for provisional measures is whether the court’s willingness to rule on provisional measures on the question of genocide, for example, is tantamount to ruling on the substance of the matter. In other words, will granting the provisional measures mean that the ICJ acknowledges that Israel is committing genocide in Gaza?
A provisional ruling cannot substitute or even pre-empt a ruling on the merits. The current case is, however, valuable for five reasons.
In light of Israel’s record of noncompliance with international law, it is unlikely that an ICJ decision against it will stop Prime Minister Benjamin Netanyahu in his tracks and force him to declare a ceasefire
International courts are not known for achieving swift results. In light of Israel’s record of noncompliance with international law, as illustrated by its reaction to the 2004 advisory opinion on the legality of the wall in the occupied Palestinian territories, it is unlikely that an ICJ ruling against Israel will prompt a ceasefire or stop Israel’s deadly and relentless bombing campaign. In 2004 Israel refused to comply with the ICJ’s order that it dismantle the separation wall.
First, it matters that the application to the ICJ focuses on the crime of genocide. What is special about this? Genocide is notoriously difficult to prove since it requires that the perpetrator possesses specific intent. Whereas many cases fail to meet the threshhold, it is widely believed that Israel itself has assisted in proving specific intent. Israeli generals have indicated intent to commit genocide by referring to Palestinians as sub-human "animals", for example. One indicator of genocidal intent is the use of language that dehumanises the target population.
Second, the application forms part of a multipronged approach to assert the rights of Palestinians. Even if the chances of implementation of an ICJ decision remain slim, this form of litigation is valuable as a human rights strategy regardless of how Israel responds. Approaching the ICJ was the right thing for South Africa to do — it shows respect for the wording of the Genocide Convention, which will hopefully encourage other signatories to act to prevent genocide in future.
Third, the application sets out the law in a systematic way. It provides a detailed factual account of the alleged genocidal acts committed by Israel. This will allow lawyers and human rights organisations and activists to rely on the application and the future decisions of the ICJ that might flow from it. Should the ICJ decide to order provisional measures, the legal and moral authority of the ICJ will lend weight to its decision. The media often refers to the ICJ as the “top UN court” because it is the most senior legal organ of the institution. Lawyers who litigate cases against Israel in future will be in a position to refer to the ICJ’s decision as a strong precedent.
Fourth, a decision granting provisional measures will create a precedent that other international courts such as the ICC can rely on in their own litigation. Should domestic courts undertake prosecutions against Israeli military and political leaders under the principle of universal jurisdiction, these courts could also rely on ICJ precedent.
Fifth, and perhaps most powerfully, a finding that Israel has committed genocide will help to counter genocide denial. Worldwide, instances of genocide are often followed by genocide denial. An authoritative decision by the ICJ will assist those facing and fighting such denials.
For all these reasons, South Africa’s bold initiative in approaching the ICJ will have positive effects regardless of whether Israel ultimately chooses to adhere to international law or not.
• Swart is visiting professor, Wits Law School
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