The parties’ positions, the definition of genocide, and what comes next in South Africa’s application against Israel
The International Court of Justice (ICJ), which sits in The Hague, is in the spotlight as Israel’s military campaign in Gaza passes its one-hundredth day. A case before the court, South Africa v. Israel, crystallizes two competing narratives: that of the Palestinian people, forcibly displaced and denied their right of self-determination since the founding of the State of Israel in 1948, and subjected to oppression and occupation ever since; and that of the Jewish people, who were finally able to establish an independent state in their historical homeland after generations of persecution and pogroms in exile, culminating in the systematic murder of six out of 17 million Jews during the Holocaust, and who have been under threat from hostile neighbors ever since. The problem with adversarial proceedings is that these narratives may be framed as mutually exclusive, when in fact both are true.
This post offers thoughts on the parties’ positions and the role of the ICJ. As a means of drawing further attention to the unfathomable human suffering in Gaza right now, South Africa’s application to the ICJ has already succeeded by landing on the front pages of many major newspapers, and perhaps even breaking through to an Israeli audience that has been largely shielded from images of suffering in Gaza. It has put Israel on the defensive, even as further evidence of the depravity of Hamas militants on Oct. 7 and 8 continues to emerge, and as Hamas and the Palestinian Islamic Jihad continue to hold over 100 hostages in Gaza. Concretely, South Africa has asked the ICJ to find that Israel has plausibly violated the prohibition on genocide—perhaps the most loaded term in all of international law and one with particular resonance for Israel—and to order Israel to cease its military operations in Gaza pending further proceedings on whether Israel has actually violated its obligations under the Genocide Convention. The court is expected to announce a decision in the coming weeks on whether to grant the requested preliminary order, and whether the case will proceed to the merits, which would likely take years to adjudicate.
Background on the Current Conflict
There is no denying an acute and heart-wrenching humanitarian crisis in Gaza today. The overall death toll in Gaza at the end of 2023 exceeded 20,000 civilians and combatants, with over 52,000 people injured so far. The majority of those injured and killed have been women and children. More than 80 percent of Gazans have been internally displaced. Much of the population is now facing disease and starvation, in addition to the ongoing threat of military strikes.
Israel’s extreme right-wing government failed miserably in protecting its population from attack on Oct. 7 and 8. The atrocities committed by members of Hamas and other militants included sexual torture and executions of Israeli and foreign civilians, as well as sexual violence against female soldiers and hostages. One hundred thirty-two people remain unaccounted for; of these, 25 are thought to be dead, and the rest are still being held in Gaza, presumably in underground tunnels.
Hamas categorically rejects a two-state solution; its use of the slogan “from the river to the sea” has long been understood by many Jews as calling for the destruction of the state of Israel and the eradication of the over seven million Jews who live in the territory between the Jordan River and the Mediterranean Sea, though many Palestinian activists in other countries insist they are using it as a call for peace and equality. Meanwhile, the Israeli government under Prime Minister Binyamin Netanyahu has deliberately thwarted the prospect of a sovereign and independent Palestinian state. Israeli right-wing extremists unlawfully aim to expel Palestinians from the West Bank and Gaza, and they would reject non-Jewish immigrants, even though 20 percent of Israeli citizens are Arab (mostly Muslim, and also Christian and Druze). The ongoing conflict has fueled mutual dehumanization and further reduced the available space for compromise.
Genocide and the Context for South Africa’s Request
South Africa filed its request for provisional measures on Dec. 29, 2023, amid the rising humanitarian toll in Gaza. In its application to the ICJ, South Africa “unequivocally condemns” Hamas’s actions, and states that its “foreign policy objective [is] the attainment of a durable peace between Israel and the State of Palestine, with two States existing side by side within internationally recognized borders, based on those existing on 4 June 1967.” As a legal matter, South Africa alleges that Israel is violating its obligations under the Convention Against Genocide.
The ICJ is concerned with establishing the legal responsibility of states, not individuals. The latter task falls to domestic courts and to the International Criminal Court, which also sits in The Hague. The ICC is currently investigating alleged crimes committed by individuals on both sides of the situation in Israel and Palestine, subject to its jurisdictional limitations (which are contested). The Prosecutor opened an investigation in March 2021, before the most recent outbreak of war, and the ICC claims jurisdiction over international crimes committed from 2014 onwards.
Contrary to the implications of some headlines, South Africa’s ICJ case is only at a preliminary stage. The court is not yet being asked to determine whether or not Israel has committed, sanctioned, or incited genocide—indeed, such a determination by the ICJ is years away, if one ever comes. At this juncture, South Africa is seeking an order that would enjoin Israel from continuing its military campaign in Gaza on the grounds that South Africa’s allegations of genocide are plausible, and that there is a risk of irreparable harm if the court does not act now. This procedural posture favors South Africa, because South Africa is not yet required to prove anything definitively. However, as Israel has emphasized, Israel also has a legal and moral obligation to protect its own population. This obligation exists alongside Israel’s clear obligation not to engage in genocide, war crimes, or crimes against humanity, and to comply with applicable laws governing belligerent occupation. South Africa’s application focuses on genocide, because this is the only legal claim over which the ICJ could have jurisdiction.
Although genocide has been referred to as “the crime of crimes,” it is important not to let the singular focus on genocide obscure the potential inhumanity and unlawfulness of non-genocidal conduct. The term “genocide” was originally coined by a Jewish lawyer, Raphael Lemkin, to capture the horrors of German policies targeting Jews in Europe before and during World War II. Even though the final judgment of the International Military Tribunal at Nuremberg did not use the word genocide, the UN General Assembly affirmed in 1946 that genocide is a crime under international law, and countries concluded the Convention Against Genocide in 1948. As William Schabas has observed, “the lay understanding of genocide is more akin to crimes against humanity, in that it comprises a broad range of mass atrocities.” In legal terms, what differentiates genocide from war crimes or crimes against humanity is not the degree of severity or scope of impact. Genocide is not defined with reference to the number of deaths, but rather with reference to the specific intent (dolus specialis) of the perpetrator. As Lemkin explained, the term genocide means “a coordinated plan of different actions aimed at the destruction of essential foundations of the life of national groups, with the aim of annihiliating the groups themselves.” In other words, “[g]enocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” Interestingly, some of Lemkin’s contemporaries, including Sir Hersch Lauterpacht, felt that the emphasis on groups was misplaced, and that international law should focus on the rights of individuals, who are entitled to legal protection regardless of their group identity.
The origin of the term genocide, and the specific intent it requires, is important to understand in assessing South Africa’s claims and Israel’s response. South Africa’s application focuses on the right of Palestinians not to be targeted because they are Palestinians, with the specific intent of annihilating the group. In Israel’s view, South Africa’s claims are not plausible because this is not the intent, or even an intent, of Israel’s military campaign. Israel has expressed an intent to eliminate Hamas, which has committed to destroying Israel. However, Israel argues that it has attempted to distinguish the 15,000 to 40,000 Hamas militants from the rest of Gaza’s population of roughly 600,000 to the extent possible in a dense urban setting.
The biggest problem for Israel is that some Israelis have expressed the intent to eliminate Palestinians from Gaza, including key members of the current governing coalition, even though their comments arguably do not represent the country’s official policy. Netanyahu has sought to distance himself from those comments, but he has not sanctioned or replaced the worst offenders, Bezalel Smotrich and Itamar Ben Gvir. (Netanyahu needs Smotrich and Ben Gvir’s support to preserve his fragile parliamentary coalition and remain in power while he faces trial on charges of corruption, which carry prison sentences.) The political power of far-right extremists, and the failure to censure them, lends further credence to South Africa’s allegations, particularly with respect to incitement. Meanwhile, although it appears that Defense Minister Yoav Gallant’s dehumanizing reference to “human animals” in the immediate aftermath of Oct. 7 applied to the Palestinian fighters who carried out the attack and not the entire population, the “complete siege” he ordered in the same statement evokes prohibited collective punishment, whose results are now verging on famine crimes.
Invoking the ICJ’s Jurisdiction
South Africa asserts that it has a legal obligation under the Genocide Convention to prevent genocide by invoking the ICJ’s jurisdiction under that treaty. This is a somewhat novel, although not unprecedented, interpretation. The ICJ is not generally the forum of first resort for concerns about international peace and security or humanitarian crises. Under the UN Charter, the 15-member Security Council has “primary responsibility for the maintenance of international peace and security.” On Dec. 22, 2023, the Security Council passed a resolution calling for, among other things, compliance with international humanitarian law (IHL) (which governs the conduct of armed conflict), the delivery of humanitarian assistance, and the “immediate and unconditional” release of hostages still held in Gaza (the resolution passed with 13 votes in favor, and abstentions from the United States and Russia). The UN General Assembly, whose resolutions are not legally binding but that play an important role in expressing the views of states, has called for an immediate humanitarian ceasefire, the immediate and unconditional release of all hostages, and ensuring humanitarian access (with 153 votes in favor, 10 against, and 23 abstentions).
Unlike the Security Council, which can address any situation that threatens international peace and security, the ICJ has authority only to hear disputes between states that consent to its jurisdiction. One way to provide consent is to join a treaty that contains a compromissory clause referring disputes under the treaty to the ICJ. The Convention on the Prevention and Punishment of the Crime of Genocide is such a treaty. It currently has 153 parties, including Israel (since 1950) and South Africa (since 1998). Parties to the treaty consent to the ICJ’s jurisdiction over disputes between states parties involving genocide, as well as conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. The ICJ has previously heard cases brought under the Genocide Convention by Croatia against Serbia, and by Bosnia and Herzegovina against Yugoslavia (Serbia and Montenegro). A case brought by Ukraine against Russia that accuses Russia of unlawfully using allegations of genocide as a pretext for invading Ukraine is pending before the court. ICJ judgments in contentious cases are binding on the parties to the dispute.
The ICJ also has authority to issue advisory opinions on matters referred to it by bodies including the UN General Assembly. A pending advisory opinion request asks the court to provide a legal opinion on, in the words of the General Assembly’s request, “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures.” The ICJ’s advisory opinions, including a prior advisory opinion involving Israel’s construction of a wall or security barrier in Occupied Palestinian Territory, do not have binding legal force, but they carry great weight.
The ICJ has 15 judges, each elected for 9-year terms by the UN General Assembly and the Security Council. Because none of the current 15 judges comes from either South Africa or Israel, each of those countries appointed an ad hoc judge, for a total of 17 judges. South Africa appointed Judge Dikgang Ernest Moseneke, who was imprisoned for opposing apartheid. Israel appointed Judge Aharon Barak, a Holocaust survivor. Both are legal giants. The choice of Barak in particular has sparked attention, with the Israeli right demonizing him for the “judicial activism” of the Israeli Supreme Court (not being sufficiently deferential to the political branches and promoting human rights at the expense of national security interests and Jewish group interests) and others criticizing his role in legitimizing Israeli settlements and other measures (being too deferential to the political branches).
The fact that South Africa brought this case is no coincidence. There has been a long-standing alignment between the African National Congress’s opposition to apartheid in South Africa and the Palestinian liberation movement. Indeed, Israel has been accused of committing apartheid in its treatment of Palestinians in the occupied West Bank. At the same time, it is fair to note that South Africa itself has stood in the way of prosecutions for international crimes including genocide, most notably by failing to comply with an arrest warrant issued by the International Criminal Court against Sudanese President Omar al-Bashir. South Africa also abstained from the General Assembly’s March 2022 condemnation of Russia’s invasion of Ukraine, with the South African President criticizing the resolution for failing to “foreground the call for meaningful engagement” between Ukraine and Russia. This does not detract from Israel’s legal obligations or the need to engage seriously with South Africa’s argument. However, it may help to explain the perceptions of some who view South Africa’s application as disingenuous, or as an attempt by the current government to gain popularity domestically. It is also important to understand this case in the context of continued critiques of the selective enforcement of international law by Western powers, which is also a concern that will inform the approach of many of the ICJ’s judges.
Hearings on South Africa’s Request
The court conducted public hearings on South Africa’s provisional measures request on Jan. 11 and Jan. 12. There is no fixed timeline for the court to issue an order. For reference, it responded just over two weeks after hearings on Guyana’s recent request for provisional measures to enjoin Venezuela from disturbing the status quo while the ICJ considers those countries’ conflicting territorial claims, and just over one week after hearings on Ukraine’s request for provisional measures against Russia. In the latter case, the ICJ ordered Russia to cease its military operations in Ukraine, which was an even broader order than Ukraine requested. Neither Venezuela nor Russia (which boycotted the ICJ proceeding) complied, even though the orders are legally binding.
South Africa’s claims are different from Guyana’s and Ukraine’s because South Africa has not been injured directly by Israel’s alleged conduct. Rather, South Africa is bringing claims as a party to the Genocide Convention with an interest in the Convention’s enforcement. This follows a model established in The Gambia v. Myanmar, brought in 2019 to enforce the Genocide Convention, and The Netherlands and Canada v. Syria, brought in 2023 to enforce the Convention Against Torture. Both those cases resulted in the issuance of provisional measures and are still before the court. It appears that there may be an emerging trend to bring ICJ cases as a means of vindicating collective interests symbolically, even though the impact of such cases on actual state behavior remains unclear.
South Africa’s provisional measures request is also different from Ukraine’s in that it does not confine itself to the parameters of the Genocide Convention. Instead, South Africa asks the court to order Israel to “immediately suspend its military operations in and against Gaza.” Although a request for provisional measures at the ICJ is generally framed as a way to preserve the rights of the parties to a dispute, South Africa has positioned itself as a protector of the rights of Palestinians in Gaza. At the hearing, Israel argued that provisional measures should be “a shield not a sword,” and that ordering it to cease attempts to rescue Israeli hostages and neutralize Hamas’s ability to carry out further attacks would prejudice Israel’s right and obligation to defend its own population.
For the court to assert its jurisdiction at the preliminary measures stage, it must determine that Israel’s alleged acts are capable of falling within the Genocide Convention’s provisions. It must then determine whether provisional measures are required to preserve the parties’ respective rights under the treaty. There must also be a link between the rights whose protection is sought and the provisional measures requested.
The legal teams on both sides comprised seasoned international law experts and ICJ advocates. Israel’s legal team argued against the grant of provisional measures on both procedural and substantive grounds, starting with the question of whether South Africa gave Israel a genuine opportunity to address South Africa’s concerns through diplomatic channels before filing its case. Israel also emphasized that the same acts could amount to genocide or not, depending on the existence of the requisite intent to destroy a group as such in whole or in substantial part. In South Africa’s view, it is enough to point to acts that could amount to genocide in order to create a “plausible” claim that can support provisional measures. In Israel’s view, unless the court requires a sufficient showing of specific intent, any terrorist group could embed itself within a civilian population to create the kind of humanitarian disaster that would trigger the court’s intervention under South Africa’s theory.
Rather than offer a play-by-play description of the arguments, it might help to boil the substantive disagreement down to three main points:
1. Prima Facie Case
To establish jurisdiction at the provisional measures stage, South Africa must show a “prima facie” case of violations of the Genocide Convention. Both sides agree that the ICJ does not have jurisdiction to adjudicate whether Israel has committed, or is committing, war crimes or crimes against humanity. Unlike genocide, those crimes do not require showing the specific intent of destroying a group in whole or in substantial part.
South Africa argues that there is a clear dispute between South Africa and Israel about whether or not Israel is violating the Genocide Convention. In Israel’s view, this alone does not establish the existence of a “dispute” as defined by ICJ case law. Israel argues that South Africa has not shown that Israel’s actions in Gaza are capable of falling within the scope of the Genocide Convention. This is because it has not pointed to genocidal statements by actual wartime decision-makers. It has also failed to consider Israel’s contrary statements and actions, which are inconsistent with an intent to destroy a group in whole or in part.
Because Israel objects to the court’s jurisdiction, Israel has asked the court to remove this case from its General List (that is, to dismiss it). However, given the “capable of falling within the scope” standard, it is unlikely that the court will agree. In particular, the Convention prohibits “direct and public incitement to commit genocide.” A prima facie case of failure to prevent and punish incitement does not depend on genocide having been committed.
2. Power to Indicate Provisional Measures
Provisional measures must have as their object the preservation of the respective rights claimed by the parties. The scope of the court’s eventual judgment on the merits is restricted to alleged violations of the Genocide Convention. The court must decide whether the “rights” claimed by South Africa are plausible, and whether there is a sufficient link between those rights and the provisional measures requested.
The plausibility standard has not been precisely defined. The court has sometimes framed the test as requiring “reasonable grounds to believe” an allegation. In the context of motions to dismiss civil claims in U.S. federal court, judges have been told to apply their “judicial experience and common sense” to determine whether claims are “plausible” or only “conceivable.” (To grant a preliminary injunction, a U.S. judge must find that the requesting party has a “substantial likelihood of success on the merits.”) For many Israelis, allegations of genocide are inconceivable, especially because the high civilian toll in Gaza is attributable in large part to Hamas’s deliberate strategy of using civilian infrastructure for military purposes. For much if not most of the rest of the world, such allegations are at least conceivable, and South Africa argues that they more than meet the plausibility threshold.
In this case, the court is likely to follow the legal framework articulated in its order on provisional measures in the case brought by The Gambia against Myanmar. There, the court relied heavily on the comprehensive report of an international Fact-Finding Mission, as well as General Assembly resolutions referencing that report, to find that the right of the Rohingya group in Myanmar to protection from acts of genocide, and the right of The Gambia to seek compliance with the Genocide Convention by Myanmar, were “plausible.”
Unlike Myanmar, Israel put forth substantial evidence to argue that actual decision-makers have tried to distinguish in their planning and orders between civilians and combatants. In Israel’s view, its official statements distinguishing between the population of Gaza and the members of Hamas, its efforts to distinguish between civilians and combatants in the context of urban warfare, and its attempts to mitigate civilian harm despite the associated increased risks to its soldiers show that “intent to commit genocide is not even a plausible inference.”
The central question under the Genocide Convention is specific intent. Although South Africa argued that “Genocides are never declared in advance,” that is not true, as the Holocaust makes clear. The purpose of the Genocide Convention was to ensure that certain types of groups would “never again” be targeted for extinction. It does not regulate behavior that devastates civilian populations without that specific intent.
3. Link Between Rights and the Measures Requested
Israel spent quite a bit of time at the hearing parsing the various measures requested by South Africa and showing how the court has dealt with similar previous requests, including in the Bosnia case. An order to cease its military operations would require Israel to abandon its military efforts to find and release hostages and to destroy Hamas’s capacity to launch further attacks. Israel invoked its inherent right to self-defense, including counsel for South Africa Professor Vaughan Lowe’s statement in 2005 that “no-one, and no state, is obliged by law passively to suffer the delivery of an attack,” regardless of whether the source of the attack is a state or non-state actor.
South Africa argued that the right of self-defense under international law does not apply in these circumstances, and that Israel has sufficient control over Gaza for the law of belligerent occupation—a different legal framework—to apply instead, notwithstanding Israel’s 2005 withdrawal. Israel has not claimed that the right to defend itself and its nationals provides a justification or an excuse for genocide, but rather than an order requiring it to cease military operations in Gaza would deprive it of the ability to exercise such a right and would exceed the parameters of the Genocide Convention.
There are two additional criteria for provisional measures: risk of irreparable harm and urgency. These depend largely on the court’s analysis of the first three. Clearly, the situation is urgent, and physical and psychological harm to civilians is irreparable. However, the only rights that the court has jurisdiction to protect are rights provided by the Genocide Convention. The legal question is whether South Africa’s requested measures are necessary to protect rights under that Convention, not under international law generally.
As both a practical and legal matter, one would expect the court to refrain from ordering a respondent country to do something that would put its other international legal rights at risk, especially at the provisional measures stage. This will be a challenge for ICJ judges seeking to craft an opinion and order that fulfills the purpose, and remains within the bounds, of the Genocide Convention. Israel urged the court to apply the principles that “measures should not go beyond what is necessary to achieve their end, that the measures must not cause irreparable prejudice to the rights of the respondent, and that any impression of bias must be avoided.” For example, South Africa’s request that the ICJ order Israel to “cease and desist” from acts of genocide, Israel argued, presumes that Israel is engaging in such acts, which is a question (if at all) for the merits stage of the proceedings. Including such language in a provisional measures order would impermissibly “tarnish the reputation of the respondent State.” This argument shows the importance Israel attaches to this case and its potential further impact on Israel’s international standing.
The court could proceed to the merits without ordering provisional measures. That said, given the urgency of the situation, it is difficult to see the court refraining from ordering at least some provisional measures under the Genocide Convention.
What Comes Next
The impact of South Africa’s filing is already clear from the attention it has received, including within Israel. Importantly, the Genocide Convention does not only prohibit acts of genocide, including attempt and complicity, but also direct and public incitement to genocide. Several observers have opined that South Africa has not sufficiently connected the inflammatory statements it has collected to Israel’s military actions, but it has demonstrated a failure by Israel to investigate and prosecute the most extreme statements, which go beyond the limits protected by freedom of expression. The legal jeopardy created by those statements could prompt more decisive action under applicable domestic law, which should be taken even absent an international legal obligation or ICJ order. (The Attorney General has recently announced investigations, although their effect remains to be seen.)
The ICJ case, and the attention it has generated, might also help Israel understand that it is at serious risk of losing the support it originally had for its response to the deadliest per capita terrorist attack on record. Many are predisposed to see any actions by Israel as presumptively evil, while others view them as presumptively righteous. These tendencies are reinforced in an adversarial proceeding that some view as an overdue indictment of Western imperialism generally.
International law, including international humanitarian law, can provide a common language for delineating internationally acceptable behavior. That said, it can also be used myopically to justify particular actions. International law will continue to lose legitimacy if it fails to protect more civilians from suffering, regardless of doctrinal categories. However, the ICJ will also lose credibility and influence if it exceeds the bounds of state consent.
Despite its potential expressive value, South Africa’s case and its emotionally and politically charged context also risk politicizing the ICJ in a way that could undermine its authoritativeness, especially if the judges adopt the same absolutist language used by the advocates. A well-crafted opinion should call attention to the civilian harm in Gaza and Israel’s international legal obligations without lowering the plausibility threshold for genocide to the point where it becomes indistinguishable from other serious international crimes.
One does not need the label “genocide” to observe that Israel’s definition of proportionality in this conflict and its view that other actors “only understand force” have resulted in disregard for the humanity of the population of Gaza. Israel can best show that it does not intend to destroy the Palestinian people in whole or in part by, among other things: (1) ensuring that sufficient humanitarian aid can be delivered and distributed, even knowing that some of it will be seized by Hamas; and (2) condemning and, where appropriate, punishing statements and actions that dehumanize Palestinians, especially by anyone in an official position, whether civilian or military. The alternative is the continued infliction of unspeakable suffering on an entire population, as well as further isolation from the international community and renewed barriers to the normalization of regional relations—thereby fulfilling Hamas’s geopolitical goals.
The trauma of Oct. 7 is an existential crisis for Israel on many dimensions. Further calls for the destruction of the state of Israel and the promise of future violent attacks will only fuel the continued rise of right-wing politicians. The ICJ case could play a constructive role if it educates the Israeli population about what is happening in Gaza and compels Israeli decision-makers to recognize the direct line from annexationist policies to the crime Raphael Lemkin named. Israel prides itself on its democratic institutions, and its legal team at the ICJ repeatedly emphasized its “robust and independent legal system.” For some, these claims may ring hollow. But there is an opportunity—and an imperative—for democratic renewal. The Israeli people, government, and military must categorically reject rhetoric and actions that could conceivably—let alone plausibly—be characterized as genocidal. The ICJ need not expand the definition of genocide in order to have a meaningful impact.
– Chimène Keitner is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. She is a leading authority on international law and civil litigation, and served as the 27th Counselor on International Law in the U.S. Department of State. Published courtesy of Lawfare.