Problems with South Africa’s Case Against Israel

As is by now well known, South Africa is suing Israel at the International Court of Justice (ICJ), alleging that Israel is committing genocide in Gaza (You can read their legal filing here). Their complaint begins by establishing the court’s jurisdiction and explaining that neither a situation of war nor the perpetration of the Oct. 7^th atrocities can justify genocide. Then it goes into a long recounting of all the disasters and hardships that have befallen the population of Gaza during the war.

It’s of course aggravating to those who care about Israel that the complaint is completely one-sided. For example, while it quotes numerous statements of Israeli officials that seem to encourage violence against Palestinians, there is no mention of Palestinian incitement against Israel. It complains about destruction of civilian infrastructure without even raising the possibility that Hamas was using that civilian infrastructure for its military. But since the topic here is possible Israeli misdeeds, not Palestinian ones, this narrow focus is legally appropriate.

Israel will likely dispute many of South Africa’s claims about the extent of the destruction. South Africa cites mostly news reports for sources, along with statements by UN officials and other human rights experts giving their professional opinions about how bad things are. This of course is not actual evidence.

Likely anticipating this, South Africa frequently reminds the court that it is not at this stage asking for a factual determination that Israel is actually perpetrating genocide. South Africa admits that the court cannot properly draw such a conclusion based just on the contents of its current complaint. Rather, this week’s hearing is preliminary only, and South Africa maintains that at this stage all it legally has to prove is that there is a reasonable fear that genocide may be occurring. Based only on that the court should order what are called ‘provisional measures’. These would take the form of legal orders that Israel take certain actions (and refrain from others) in order to safeguard the Palestinian population from irreversible harm.

Israel will likely argue that what’s going on in Gaza is not genocide, but simply the consequence of its military being forced to fight a war in an urban area. It will undoubtedly point to all the precautions it has taken and claim much of the civilian destruction is because Hamas makes extensive use of human shields. Whether or not the judges are swayed by this, here are some other problems South Africa may have with its case.

The Security Council

On Dec. 22^nd the UN Security Council (UNSC) passed resolution 2720, which establishes a humanitarian and reconstruction coordinator for Gaza and creates mechanisms for distributing aid. This is specifically in order to address the current humanitarian disaster.

South Africa is not satisfied by this UNSC resolution, writing in paragraph 62 of its complaint:

United Nations Security Council Resolution 2720 of 22 December 2023 is widely slated to be ineffectual. . . That is because the watered-down resolution fails properly to address the “four elements” identified by the United Nations Secretary-General as necessary for allowing effective aid, capable of assisting Palestinians in Gaza: Security. . . Staff. . .Logistics. . . Resumption of commercial activities.

The UN Charter makes clear that the Security Council is charged with maintaining international peace and security. South Africa admits that the council was appraised of the dire humanitarian situation in Gaza (essentially the same information contained in its current ICJ complaint) and the UNSC responded with resolution 2720. South Africa thinks the UNSC resolution is insufficient and won’t work. Fine, but the International Court of Justice is absolutely not a court of appeals for countries dissatisfied with the Security Council. The UNSC did not, in its wisdom, impose a ceasefire as part of resolution 2720. South Africa thinks it should have. The International Court of Justice cannot second guess the security council, announce that all the diplomats in New York are a bunch of squabbling, ineffective buffoons, and go off on its own to impose whatever solutions it sees fit for the world’s problems.

In order for South Africa to succeed, it will have to convince the court that what’s going on here is not merely a country running to the ICJ because it couldn’t get the Security Council to pass a resolution it likes. This may be a tall order, and it’s easy to imagine at least some ICJ judges rejecting most of South Africa’s requests for preliminary measures by saying the mechanism recently established by the UN Security Council is in fact already doing what South Africa is asking from the court.

Competing Rights

Towards the end of the complaint, in paragraph 116, South Africa rather blandly states:

there are other related matters that do not directly engage obligations under the Genocide Convention and are therefore not properly within the Court’s jurisdiction in this case, including the urgent return of Israeli and other hostages. South Africa considers that the provisional measures requested are nevertheless consistent with and capable of assisting towards the progression and resolution of those matters

I cannot imagine how South Africa will defend this statement, as it seems obviously false. Provisional measures restricting Israel’s military actions would make it harder for Israel to recover the hostages, not easier. This is a major dilemma- whatever the suffering of Gaza residents, the fact is that the rights of Israelis are being violated in this conflict too. First among them are those innocent people who were kidnapped on Oct. 7^th. While of course this does not justify genocide, the rights of the hostages have to be taken into consideration and South Africa’s one sided complaint doesn’t do that. The court will have to see through this and balance any provisional measures with Israel’s right to defend its citizens.

The Scope of Provisional Measures

This could be the most difficult issue. South Africa requests as its first provisional measure the court order that “The State of Israel shall immediately suspend its military operations in and against Gaza (paragraph 144).”

This is highly problematic. What happens if Israel does this, and Hamas resumes firing missiles? What if Israel gets evidence that Hamas is preparing another Oct. 7^th style attack? Is the ICJ going to tell Israel to let Hamas do so with impunity, which seems to be what South Africa wants? What if Israel gets intelligence on a feasible way to rescue the hostages without causing disproportionate harm in Gaza? Shouldn’t it have the right to do that?

The court will have to somehow balance Israel’s right to self-defense with its order to protect the Palestinian population. This, of course, has been the central dilemma of this conflict from the start. How can the ICJ judges manage to legislate from the Hague the exact line between self-defense and inflicting unnecessary harm? In a situation so fluid, is it even possible for any static legal order to do so?

What the ICJ should do

Assuming the ICJ finds a credible fear of genocide and decides to order some provisional measures, it will have to decide how far those provisional measures will go. It could potentially wind up simply repeating the well worn admonition that Israel follow humanitarian law. In that case, Israel will likely be upset at being scolded by the court, but beyond that insist that it is already complying with the court’s order and keep its military policies unchanged. If the court goes this route it risks being seen as irrelevant and ineffective.

If the court issues a ruling like South Africa requests, demanding that Israel cease all military operations no matter the risk to its own security, it seems inevitable Israel will ignore it. Israel is not going to refrain from actions it views as vital for itself out of deference to some judges sitting in a secure European city thousands of miles away. This would be a very unfortunate situation, highlighting the impotence of international justice and further alienating Israel from the international legal and human rights communities.

Best would be a moderate ruling that requires concrete actions of Israel that will actually help the people of Gaza, while making clear Israel’s right to self-defense and not trying to push Israel to go against what it sees as its vital interests. Perhaps ordering Israel to allow Gaza citizens to return to their homes and operate within the humanitarian constraints that imposes on its war effort, as one example. There’s a decent chance Israel might obey such a ruling, and therefore the ICJ would actually be making a difference. For Israel to participate in the ICJ proceedings and then accept the outcome would be an important step towards reintegrating it into the mechanisms of international justice, instead of just disparaging international institutions as biased and out to get it as has frequently been the norm. In the current, tragic situation even a small positive step like this would be a big achievement.