ON DECEMBER 29, the state of South Africa announced that it would launch legal proceedings against the state of Israel before the International Court of Justice (ICJ), alleging that its ongoing attacks against Palestinians in Gaza amounts to genocide. This means that the international court will decide whether Israel’s actions do, or may plausibly, amount to genocide and therefore a violation of the Convention on the Prevention and Punishment of the Crime of Genocide—crucially, a convention to which both Israel and South Africa are parties. Because Israel signed and ratified the genocide convention—and in so doing, promised the international community and the international rule of law that it would not engage in, or be complicit in, acts of genocide—it is able to be brought before the ICJ if any other state that is party to the convention believes it is doing just that. That is what we are currently witnessing in the ICJ.
South Africa has completed its arguments before the court—over several days, South Africa set out the evidence that Israel’s violence towards Palestinians in Gaza amounted to attempted genocide with genocidal intent—that is, an attempt to eliminate a group of people, either in whole or in part. Now, we await the court’s announcement of whether or not it was convinced by South Africa’s arguments and therefore whether it feels that Israel’s continued attacks on Gaza constitute ongoing genocidal actions.
While we await the final determination, here’s an explainer of the law and context behind South Africa’s decision to intervene in the humanitarian crisis in Gaza.
What’s happening in Gaza?
As of this writing, 25,000 Palestinians have been killed by Israeli forces in Gaza in the Israel-Hamas war that began on October 7, 2023. On top of the 25,000 bodies, at least 85 percent of the population of Gaza have been displaced under intense bombing from Israeli forces. The war began on October 7, 2023, when a group of Hamas extremists launched an extreme act of terror in the form of an attack on Southern Israel, killing nearly 1200 Israelis and foreign nationals and taking 250 hostages in the initial attack.
Since then, however, the state of Israel has engaged in a relentless violent siege on Gaza, killing almost 25 times that number and, as a result, is now being accused of attempting to carry out a genocide and wipe out the Palestinian people.
In December, South Africa, by right conferred on it by its participation in the UN Convention Against Genocide, made an application to the International Court of Justice asking the internal rule of law to intervene.
What is an application to the ICJ?
“The International Court of Justice was established to address conflicts between states,” Dr Nimer Sultany, Reader in Public Law at the School of African and Oriental Studies (SOAS) at the University of London, told Esquire. “South Africa submitted the application for provisional measures to the ICJ because both Israel and South Africa are parties to the genocide convention, and it is the duty of every state party to the convention to prevent genocide.”
Sultany added that “by submitting the application, South Africa is highlighting the fact that Israel is committing genocidal actions with a genocidal intent to destroy to the Palestinian people in Gaza, either in whole or in part, and this means that South Africa is asking the court to intervene by issuing provisional measures or temporary injunctions.”
Provisional measures or temporary injunctions are legal tools that the ICJ has in its arsenal that it can deploy when it determines that an international convention—in this case the genocide convention—is being violated by a state actor.
What is the significance of South Africa’s legal intervention?
The legal document filed with the ICJ by South Africa requests the following specific measures, among others:
That “the State of Israel shall immediately suspend its military operations in and against Gaza.” It also requests that “the State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations.”
This means, in essence, that South Africa is asking the court to order Israel to cease all military operations in Gaza.
The legal application also demands that the state of Israel shall “desist from the commission of… killing members of the group, causing serious bodily or mental harm to the members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.”
The ICJ will imminently decide whether to agree with South Africa’s legal argument and put these measures in place. When contacted by Esquire, the court did not respond to questions about when we can expect a decision.
Sultany also pointed out to Esquire that “South Africa, by making this action they are also alerting other states that they need to exercise their duty to prevent genocide.”
The convention against genocide includes not only a duty to avoid committing acts of genocide, but also a positive duty to intervene when other states violate the convention, Sultany explained to Esquire.
South Africa is “alerting those states that supported Israel’s savage war that they may be complicit and may be aiding and abetting a genocidal war, and therefore they themselves might be liable for violating their obligations under the genocide convention,” he explained.
It is also important to note the significance of the fact that South Africa, a state with its own history of genocide, has chosen to bring this action.
The official legal filing, lodged by South Africa with the ICJ, makes reference to—in the context of a quote from the South African Ambassador to the United Nations, “South Africa’s painful past experience of a system of apartheid, this impresses on us, as Member States to take action in accordance with international law.”
What will the impact of the court’s decision be?
Provisional measures and injunctions set down by the ICJ are binding under international law, Sultany told Esquire, meaning that Israel will be under an immediate expectation to comply with any directives to cease its war on Gaza.
As with any law, and particularly international law, which is often termed “soft law” due to the difficulty of enforcing it in a system in which states are considered sovereign, it is difficult to predict if Israel will comply, or change its aggression towards the Palestinian people. However, Sultany said that it is important that the international community take notice if Israel does refuse to comply.
“The court ruling is legally binding, so Israel is supposed to abide by the ruling,” he said. “But if they don’t, they are showing the international community that they have become a rogue state acting with impunity and acting as though they are above international law.”
Sultany believes that South Africa “made a compelling case that Israel’s current actions fall within the definition of genocide.”
The professor also added that regardless of legal consequences, he believes that South Africa’s decision has had a political effect on the narrative around the conflict.
“In terms of the effect that South Africa’s legal action has had on public opinion, I would say it has disrupted the mainstream narratives about the Israeli onslaught on Gaza,” he explained to Esquire. “Before this, there was a narrative that decontextualised the violence, framing it not as a situation of occupation and apartheid imposed on the Palestinians and excluding the context of 16 years of siege on Gaza.”
Lucia Osborne-Crowley is an award-winning writer and journalist. She is currently a legal correspondent at Law360. You can see her recent reporting for Esquire on the sinister side of Australia’s defamation laws, here.