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South Africa v. Israel: Can the ICJ Make a Difference?

By Alejandro Abadia

February 27, 2024

Global Rights Defenders





On January 26, the International Court of Justice (ICJ) ordered Israel to adopt

provisional measures to protect the Palestinian people residing in the Gaza Strip. The decision came in response to a legal case filed by South Africa on December 29, 2023, in which it accused Israel of contravening the Genocide Convention. According to the application, Israeli armed forces have been committing genocidal acts against Palestinians as part of the military operation launched after the terrorist attacks perpetrated by Hamas last October. 


Due to the seriousness of the allegations, the South African legal team requested the ICJ to order a ceasefire as a provisional measure, as it believed it was a necessary step to protect Palestinians from irreversible harm until the Court reached a final decision on the merits of the case. 


The ICJ did not order Israel to stop its military operations. However, it found "plausible" that the country was committing acts of genocide against the Palestinian people residing in the Gaza Strip. Consequently, it demanded six provisional measures to safeguard the rights enshrined in the Genocide Convention. These included refraining from incurring acts prohibited by the Convention, preventing and punishing public incitement for committing genocide, and ensuring the provision of humanitarian assistance to civilians in Gaza. Additionally, the tribunal requested Israel to preserve all evidence of genocide and to submit, within one month, a report detailing all the efforts undertaken to comply with these orders.


For some, this ruling does not represent a victory for South Africa or the Palestinian people, as it does not restrain Israel from continuing to wage war. However, the decision may still significantly affect the current situation in Gaza


Incomplete Victory for South Africa?


The provisional measures ordered by the Court are general in nature and do not provide detailed actions for Israel to comply with international law. Apart from requiring the preservation of evidence and enabling the provision of humanitarian assistance, the Court's decision reproduced preexisting legal obligations already outlined in the Genocide Convention. 


In addition, the tribunal highlighted that all parties to the conflict must abide by international humanitarian law. As described by Marko Milanovic, "Israel avoided an order that would have mandated a ceasefire, instead being ordered to undertake measures that it is saying that it is largely doing anyway.". Arguably, some political experts view these findings as an incomplete victory for South Africa insofar as their ambiguity falls short of meeting its primary request to stop all Israeli hostile acts.


A ceasefire, however, is still relevant in the current circumstances where more than 26,000 Palestinians (primarily civilians) have lost their lives, and 1.8 million have been internally displaced and have no access to food, water, or medical assistance. As argued by Agnès Callamard, Secretary General of Amnesty International even when the Court did not order a halt to the hostilities, it remains the most effective approach to end civilian suffering. Other experts go as far as to declare that, in practical terms, such a strategy is the only viable, as "it is difficult to see how Israel can implement these measures and fulfil its obligations [...] without agreeing to a ceasefire." Thus, as a matter of policy, Israel could consider agreeing on a truce as an effective and consistent means to comply with the Court's mandate.


Impact on Third Parties 


The ruling of the ICJ has the potential to influence not only the way Israel conducts its military operations but also the behaviour of its allies. As expressed by the South African Ministry of Foreign Affairs (as cited in Aljazerra, 2024) , now third States must "ensure that they [...] are not in violation of the Genocide Convention including by aiding or assisting in the commission of genocide."


The statement aligns with Article III of the Convention, which forbids acts of complicity. As implied by Article 16 of the Articles on State Responsibility, such involvement entails assisting the commission of unlawful international acts. However, its applicability is contingent on specific conditions, including that the assisting State is aware of the circumstances in which its support could lead to a breach of international law.


The Court's recognition of the plausibility of genocidal acts acknowledges the existence of a high-risk situation. This satisfies the knowledge requirement mentioned above and compels all State parties to the Genocide Convention to take the appropriate precautions in their international relations. In other words, third States must assume enhanced due diligence to guarantee that their support does not contribute to any wrongful acts. This is particularly relevant to Israel's allies, who should now be mindful of the circumstances described by the ICJ and prevent their military and financial assistance from facilitating the commission of a possible genocide. As a result of this decision, some governments that have expressed their support for Tel Aviv's actions may revise their approach towards the country to avoid any form of complicity.


The Obligation to Prevent Genocide 


Article I of the Genocide Convention compels State Parties to "prevent" genocide. In the 2007 Genocide Case (Bosnia v. Serbia), the ICJ interpreted this provision as an extraterritorial obligation of conduct rather than result. Consequently, States have the responsibility to take all reasonable measures to prevent genocidal acts in their territories, and anywhere they may occur. Thus, in practical terms, to fulfil this duty, States must act under their ability to influence the behaviour of actual or potential perpetrators to thwart any criminal attempt. However, the extent of this particular power depends on various factors, including "the geographical distance of the State concerned [...], and on the strength of the political links, as well as links of all other kinds."  Therefore, the efforts to discharge this responsibility will differ from State to State based on their own position and available resources.


In its application before the Court, South Africa appealed to Article IX of the Convention (granting jurisdiction to the ICJ over possible disputes) and its obligation to prevent genocide as interpreted by the Court in its jurisprudence. Even though the South African legal team did not explicitly link these two provisions, it is reasonable to conclude that, under such rationale, activating Article IX is considered a legal means to influence Israel into deterring possible illegal acts.


Thus, by defending the broad interpretation of the obligation to prevent, South Africa reaffirms the extraterritorial scope of the Convention. This approach, as described above, would translate into an additional positive obligation for Israel's allies to take all measures within their power to influence Tel Aviv's behaviour. 

Although the ICJ did not order a ceasefire, its ruling may still affect the behaviour of both Israel and the third parties directly involved. Calling for a cessation of the hostilities is compatible with the provisional measures ordered by the Court and may be one of the most effective ways to comply with them. Furthermore, it reaffirms the positive and negative obligations of the States directly implicated, which are crucial to ensure compliance with the Convention and avoid the commission of genocidal acts in Gaza.


About the author: Alejandro is a political scientist and international relations expert with a strong background in international cooperation and human rights. He has extensive experience working on projects focused on empowering victims of the Colombian armed conflict, protecting human rights defenders, and advancing corporate social responsibility.


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