South Africa/Israel: First lessons from a historic decision

By Johann Soufi, 

Fourteen key elements to understand the decision of the International Court of Justice in the case of South Africa against Israel.

1. On January 26, 2024, the International Court of Justice (“The Court” or “the ICJ”) issued its Order pronouncing provisional measures in the case of South Africa v. Israel introduced by Pretoria under the 1948 Genocide Convention. Not since its creation in June 1945 has the principal judicial body of the United Nations attracted such attention. The hearings on January 11 and 12, broadcast live on social networks and certain television channels, aroused unprecedented interest in all four corners of the world. The order of January 26, 2024 was widely commented on in the media, with extremely variable precision and rigor. While many experts in international law have stressed the importance of this decision, other “toutologists” (previously self-proclaimed experts on Covid-19 and the war in Ukraine, and now on the Middle East and justice international) rushed onto television sets to distort its meaning or reduce its scope. This sudden enthusiasm of the media and the public for international justice, in the cemetery of international law represented by the Israeli-Palestinian conflict, nevertheless constitutes, undeniably, progress. It also carries significant risks of exploitation and politicization of international justice that is often misunderstood and criticized. In the current political and media tumult, this article aims to provide some analytical keys to understand a decision which, in many respects, is already historic.

Recognition of the risk of genocide: a legal victory for South Africa.

2. The order of January 26 undoubtedly constitutes a legal success for South Africa. While Israel, several of its allies (notably the United States and Germany) and certain political leaders, including French Foreign Minister Stéphane Séjourné, criticized the allegedly frivolous, even slanderous, nature of the South's action. African, the Court confirms its merits (paras. 19 to 32 of the order). In continuation of its jurisprudence in the Gambia v. Myanmar, the judges recognize in particular the capacity of Pretoria to act as erga omnes partes, that is to say its possibility of seizing the Court for the alleged violation by Israel of the Genocide Convention, even if the South African population is not directly threatened.

3. The Court's order also validates the relevance of the use of the terms "genocide" or "risk of genocide", used by South Africa, several States, and numerous human rights defenders (such as independent experts from the UN, or the former prosecutor of the International Criminal Court Luis Moreno Ocampo) and specialized organizations (such as the Lemkin Institute for Genocide Prevention, the International Commission of Jurists, or the FIDH) to describe the crimes perpetrated by Israel and the catastrophic humanitarian situation in Gaza. The judges in The Hague recognize the potentially genocidal nature of some of the Israeli acts in the Gaza Strip, in particular the intentional subjection of the Gazan population to conditions of existence likely to lead to their physical destruction (Article 6 c of the Statute of Rome). Drawing on reports from UNRWA, OCHA, and other United Nations agencies present on the ground, which have been warning for months about the disastrous humanitarian effects of the Israeli siege depriving water, food , medicine, and electricity to an exhausted, sick, and hungry population, the judges confirm the reliability of the testimonies of these humanitarian organizations in an area otherwise prohibited to journalists and international investigators (paras. 33 to 49, and 67 to 72 of the order). Israeli efforts to discredit UNRWA, immediately after the order was issued, must also be interpreted in this context.

4. In its order, the Court also recognizes the possibly genocidal intention of certain senior Israeli political and military officials, that is to say their desire to destroy, in whole or in part, the Palestinians of Gaza. Citing in particular the Minister of Defense Yoav Gallant, who claimed to fight "human animals", President Isaac Herzog who promised to "break the spine" of "Gaza terrorists", and the Minister of Infrastructure at the time , Israel Katz who wanted to deprive the inhabitants of Gaza of water and electricity "as long as they are in this world", (para. 52 of the order), the Court recognizes the "plausible" nature of the violation by Israel of the 1948 Genocide Convention, and the existence of a real and imminent risk of irreparable harm, which constitute the criteria for triggering provisional measures (paras. 54, 58, 61 and 74 of the order).

Partial, but significant, precautionary measures

5. The six provisional measures ordered in their vast majority (15 to 2 for the majority, and even 16 to 1 for two of the measures) by the judges of the Court have given rise to important debates, notably concerning the absence of cease -fire.

6. The absence, in the order, of a measure relating to the end of the fighting constitutes the main disappointment for the Palestinians and their supporters. The Court having not justified, in its decision, the reasons for the absence of such a measure, any analysis on this subject will therefore necessarily be speculative. Several elements can explain this decision. First, it is necessary to recall that the maintenance of international peace and security is primarily the responsibility of the Security Council and not of its judicial organ, the ICJ (Article 24 of the United Nations Charter). If the Court had indeed ordered a ceasefire in the Case between Ukraine and Russia in 2022, it should however be remembered that the context of this case was very different, Russia having invoked the 1948 Convention on genocide to justify its invasion of Ukraine in order to prevent a “risk of genocide in Donbass”. The Court having considered that this argument was a pretext for the Russian invasion, it naturally ordered the latter to “immediately suspend its military operations which began on February 24, 2022 on the territory of Ukraine” (ICJ , Russia v. Ukraine, Order of March 16, 2022 on precautionary measures). The reasons for launching the Israeli military operation in Gaza were different. Furthermore, it would have been difficult for the judges to order a ceasefire to only one of the belligerents (Israel), the other, Hamas, not being a State and therefore not a party to the procedure (see in this sense paragraph 16 of the separate opinion of Israeli judge Aharon Barak). It nevertheless remains obvious, for many jurists, diplomats and humanitarian actors, that stopping the fighting constitutes the only way to implement the precautionary measures ordered by the Court.

7. Despite the notable absence of a ceasefire, this decision constitutes a significant legal defeat for Israel. Not only did the judges recognize the plausibility of the genocide, but the precautionary measures taken against the Jewish state are strict. The Court orders Israel to take, without delay, all measures in its power to prevent the commission of any act falling under the 1948 Convention; to ensure, with immediate effect, that its army does not commit any potentially genocidal acts; to prevent and punish direct and public incitement to commit genocide; to adopt effective measures to enable the provision of basic services and emergency humanitarian assistance and to take effective measures to prevent the destruction and ensure the preservation of evidence. The Israeli government has one month to submit to the Court a report on all the measures taken to implement these provisional measures effectively. (paras. 83-86 of the order).

Important legal consequences

8. Although this decision does not concern the merits of the case, it already has important consequences for the Israelis, the Palestinians, and for the entire “international community”.

9. From a symbolic point of view first, the simple fact that the hypothesis of a new genocide in the 21st century is “plausible” should shake our human conscience. As Israeli judge Aharon Barak points out in his separate opinion, this accusation, however, acquires a particularly infamous symbolism for Israel, a state created to offer refuge to Jewish victims of genocide in Europe and centuries-old persecution (paras. 3-8 of the separate opinion of Israeli judge Aharon Barak). By being the subject of provisional measures from the ICJ under the Genocide Convention of 1948, the Jewish State finds itself in the history of international justice, alongside the Serbia of Milošević (April 1993) and the Burmese regime in Myanmar (January 2020), subsequently becoming pariahs of the international community. Whatever the outcome of this affair, this decision will also inevitably have a significant impact on Israeli politics. It will intensify criticism of Benjamin Netanyahu and his far-right allies, and strengthen protesters demanding a ceasefire in the country and elsewhere. It is also likely to strengthen the Israeli judiciary (target of numerous attacks by the Netanyahu government), which is asked to take measures against leaders suspected of inciting genocide. For Palestinians, this decision is a symbol of recognition of the “national, ethnic, and racial” group that constitutes the Palestinian people – protected by the 1948 Convention (para. 45 of the order; declaration by Chinese judge Xue, para. 2). This existence, sometimes denied by certain Israeli extremist leaders, such as Bezalel Smotrich in France in March 2023, can no longer be contested. To use the terms of the Court's advisory opinion on the legality of the wall in the West Bank in 2004, "the existence of this Palestinian people and the rights conferred on them, in particular their right to self-determination, are now indisputable" (para. 118 of the Advisory Opinion on the West Bank Wall, July 9, 2004). The Court's order also symbolizes recognition of the suffering of the Palestinian population and the forced displacement of which they are victims, which constitutes a war crime (Art. 2 a. iv and 2. A vii of the Rome Statute) and potentially a crime against humanity (Art. 7 d. of the Rome Statute) - (para. 46 of the order).

10. From a legal point of view then, as the Court recalled, the decision is obligatory for Israel (para. 83 of the order), which can no longer wage its war in Gaza as in the past and claim act in accordance with international law. The Court demands that the Jewish State immediately change its potentially genocidal behavior. For the rest of the international community, this decision also has important legal consequences. As the Court recalled in its judgment of February 26, 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro, “States now have the obligation to implement all means that are reasonably at their disposal to prevent genocide”. (para. 430 of the Judgment of February 26, 2007). This obligation falls particularly on States which “have means likely to have a deterrent effect against persons suspected of preparing genocide, or who may reasonably be feared to harbor specific genocidal intent”. (para. 431 of the Judgment of February 26, 2007). It should also be recalled that, in this judgment, the Court considered that “the provision of means intended to enable or facilitate the commission of the crime” could constitute complicity in genocide (para. 419 of the judgment of February 26, 2007) . The decision of the United States and other Western states to continue their military support for Israel, or to suspend funding for UNRWA, could thus engage their international responsibility.

The future of the international order in question

11. The ICJ, like all international courts, does not have a constraint mechanism to impose its decisions. For this, it depends on the cooperation of States, in particular the permanent members of the UN Security Council. Although the Secretary-General of the United Nations quickly transmitted the Court's order to the Security Council for its implementation, it is likely, however, that the latter remains powerless, blocked by its internal divisions and by the American veto against any resolution perceived as excessively restrictive for Israel. Initial reactions from other Western nations also appear to reflect a reluctance to compel Israel to comply with its international obligations and the Court's order.

12. The most immediate consequence of Western powers' continued support for Israel will likely be continued Israeli hostilities and crimes in the Gaza Strip. While the population is starving in Gaza, the obstacles to humanitarian aid and the intensification of bombings on Khan Younis and Rafah are further increasing the suffering of a bruised and breathless Gazan population. The risk of regionalization of the conflict is increasing. The duplicity of the West, when it comes to respect for international law by Israel, also deeply undermines the rhetorical and legal edifice that it itself forged at the end of the Second World War. On the contrary, it strengthens the influence of authoritarian regimes and all those who attack human rights throughout the world.

An opportunity to seize: a new lease of life for international law

13. In this particularly dark context, this unprecedented crisis in the world order also reveals some glimmers of hope for the Israeli and Palestinian people, and for the rest of the “international community”. Never in the history of this historic conflict has the situation seemed so desperate. This dramatic situation is, however, the result of more than two decades of inertia during which the world gradually lost interest in a conflict whose main victim is the Palestinian people, colonized in the West Bank and walled in Gaza. The blood and tears shed by the two peoples since October 7 have tragically put the resolution of this conflict and the Palestinian question at the heart of international concerns. More and more voices are being raised, including among supporters of Israel, to finally recognize the Palestinians' right to a state and self-determination. Such a development will inevitably require a decolonization process, the only one capable of bringing peace and security to both peoples.

 14. The other source of hope lies in the symbolic significance of South Africa's action before the International Court of Justice. The fact that a southern democracy having defeated apartheid has generated such global enthusiasm for its judicial approach in favor of the Palestinian people underlines a deep global aspiration for greater justice and respect for universal values. In fact, criticism of the West's posture should not be seen as a questioning of the values it claims to defend. It constitutes, on the contrary, a vigorous call in favor of democracy, justice, and law on an international scale, without double standards. The profound deconstruction of the world that we are witnessing calls for a reconstruction, for a revolution: that of a true “global rule of law” based on universal values, on respect for international law and on greater equality between peoples. . The decision of January 26, 2024 could also constitute one of the first stones in the construction of this new world.

Johann Soufi, international lawyer, former head of the UNRWA Legal Office in Gaza and associate researcher at the Thucydides Center (Paris II Panthéon-Assas).