ICJ case kicked further down the road
The International Court of Justice (ICJ) has recently kicked the genocide case brought by South Africa against Israel further down the road. It has authorised the filing of a second round of written submissions (court pleadings). The first round of pleadings consisted of a memorial and counter memorial. The court was requested by South Africa last month that a second round of pleadings was required because of the complexity of the case and the volume of Israel’s counter-memorial with numerous annexures. Israel also filed objections to the court’s jurisdiction and the admissibility of South Africa’s application.
Article 49 (3) of the rules of the ICJ provides:
“The Reply and Rejoinder, whenever authorized by the Court, shall not merely repeat the parties’ contentions, but shall be directed to bringing out the issues that still divide them.
In a ruling dated 29 May 2026 the ICJ has given South Africa until 22 November 2027, to file its reply and Israel has until 22 May 22, 2029, to submit a rejoinder.
Dr Gilad Noam, a member of Israel’s legal team, said in a post on X dated 31 May 2026:
“It demonstrates that South Africa’s allegations are wholly unfounded and that this is a case that should never have been brought in the first place. This case constitutes a manifest misuse of the Genocide Convention and of the Court itself. Regardless of how long it may take, the only tenable outcome remains the dismissal of South Africa’s claims in their entirety.”
What is the significance of this extension of time limits and the filing of further documents and what does this mean for the future of the case?
Clearly Israel’s counter memorial, its statement of defence, has seriously derailed the entire case of genocide brought by South Africa. This is not surprising. The memorial filed by South Africa was filled with tendentious and inaccurate material which cannot stand scrutiny.
Legal wisdom has it, that if you cannot make out a decent case in your founding papers, you will be most unlikely to fix it in reply. The odds are that the case against Israel was at its high point in December 2023 when it brought the application for provisional measures but since then it is on a downhill trajectory as it has to embark on damage control to try and rebut Israel’s counter memorial. No doubt it will seek to introduce new material based on events subsequent to filing its original memorial.
This is a two-edged sword. Much of the hype and misinformation about starvation, bombardment, violence against civilians, children etc has now been extensively researched by Israel and it is in a far better position to critique the unreliable reports by UN agencies and humanitarian organisations based in Gaza, many based on Hamas and lacking verification and sound methodology. Israel will be afforded the opportunity to offer these critiques in its rejoinder as well as its own careful research. Some of the reports stripping away the genocide case against Israel have already been published, for example the report of 311 pages published in September 2025 by the Sadat Centre for Strategic Studies in association with Bar Ilan University (BESA) entitled “Debunking the Genocide Allegations: A Re-examination of the Israel-Hamas War from October 7, 2023 to June 1, 2025”.
Let’s rewind. On 29 December 2023, South Africa filed an application in the ICJ claiming that Israel was in breach of the Genocide Convention, seeking preliminary urgent measures from the court to prevent genocide. This was less than three months after the invasion and atrocities by Hamas in Israel on 7 October 2023. Yet South Africa was able to assemble a fully researched account of Israel’s previous conduct in Gaza in earlier wars and an up-to-date record of the new war.
This application follows a similar approach to the 2019 Rohingya genocide case brought in the ICJ by the Gambia on behalf of the Organisation for Islamic co-operation against Myanmar. On 23 January 2020, the ICJ issued an order for provisional measures ordering Myanmar to prevent genocidal acts against the Rohingya Muslims. Since then, two rounds of memorials were also filed and the case was heard in January 2026. Judgment is awaited in about six months. A relatively smooth passage yet at least seven years will have passed before a final outcome.
In the Gaza case, the court issued a provisional ruling on 26 January 2024 which has been widely misunderstood and often wilfully misrepresented. South Africa hailed it as a success and a vindication of its genocide claims. The votes were 5 votes to 2, with judges Julia Sebutinde (Uganda) and Aharon Barak (Israel) dissenting. Former president of the ICJ Joan Donoghue clarified that the court decided the Palestinians had a “plausible right” to be protected from genocide and that South Africa had the right to present that claim in the court. She emphasised that, contrary to some reporting, the court did not make a ruling on whether the claim of genocide was plausible but found that there was a risk of irreparable harm (my emphasis). A far cry from establishing actual genocide in any shape or form.
For those unfamiliar with legal procedures, in proceedings for interim or provisional measures, the threshold of proof is not as high and easier to establish than in a final adjudication. A mere likelihood or plausible risk of harm suffices. In South Africa this is called a prima facie case. However, in a final hearing, proof of genocide is far more onerous. Proof of genocidal intention is called dolus specialis (special intent) which amounts to evidence which allows no other conclusion. The normal standard of proof of criminal intent is beyond a reasonable doubt. Dolus specialis does not even allow any reasonable doubt. Genocide is the ultimate crime against humanity and this term has been carelessly and promiscuously been bandied about in condemnation of Israel by many countries, activists and human rights groups alike without any respect for its true international law meaning.
The case has progressed as follows. On 28 March 2024, following a second request for additional measures, the ICJ issued an order for further emergency measures, that Israel must ensure basic food supplies, in order to allay famine and starvation allegedly facing Gaza. On 24 May 2024 a further order was issued requiring Israel to cease operations in Rafah. The court was divided. The Israeli, German, Ugandan and Romanian judges interpreted the ruling as not requiring a ceasefire in Rafah and allowing for defensive operations against Hamas including the rescue of hostages. Israel continued its operations as it interpreted the order likewise.
In April 2024, the ICJ requested filing of pleadings in the main case ie determination of violation of the Genocide Convention. South Africa submitted its memorial in October 2024, and after being granted an extension of time limits Israel submitted its counter memorial in March 2026.
There is more. Between May 2024 and December 2025 several countries joined South Africa against Israel including European countries Ireland and Belgium. Somewhat less countries have stated their support for Israel including the UK and the USA. Canada and Australia remained neutral. It bears mentioning that Ireland intends arguing for an expansion of the concept of genocidal intent to include blocking by Israel of the supply of food to Gaza. Someone seems to have missed the point that food could also enter Gaza through Egypt. No one is pointing fingers at Egypt.
The Presidency of South Africa issued a statement on 2 June 2026. It noted that a second round of pleadings is common in ICJ cases. It is indeed correct that in the Rohingya genocide case there was indeed a second round where the parties were afforded time limits of 6 months, but what the Presidency fails to explain is why South Africa requested 18 months to file its reply. According to the Presidency –
“South Africa’s response is a simple one: self-defence is not a defence to genocide, there is none.”
Simple but breathtakingly wrong. Israel’s case is not simply self-defence. It is based on a firm foundation of lawful military action in compliance with humanitarian law and the law of war (jus in bellum) as well as absence of genocidal intent. Astute observers are asking why South Africa requested such a long time limit and question whether South Africa’s case will hold up at all.
It is unlikely that the ICJ will hear the case any time soon, perhaps an outcome can be expected after 2030, if at all. By then, a new government will have been elected in South Africa, which might adopt a different foreign policy that is not aligned with the adversaries of Israel. Even if the case is unwisely pursued by South Africa, it will yield insuperable factual and legal hurdles which will ultimately be its nemesis.