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Understanding the case of South Africa vs Israel at the ICJ

The South Africa vs Israel case stands out in the complex field of international law not only as a legal battleground but also as a clear illustration of the unparalleled damage caused by Israel's military campaign in Gaza. This legal saga goes beyond the conventional narratives of the Israeli-Palestinian conflict, thrusting into the forefront the horrific reality of tens of thousands of indiscriminate Palestinian casualties.

In December 2023, South Africa filed a claim against Israel for suspicion of genocide, urgently seeking provisional measures. The OHCHR echoed the court's urgency, citing hundreds of daily Palestinian casualties, predominantly women and children, reaching a staggering death toll of 26,751 in Gaza over the past three months

The dispute unfolds against the historical backdrop of the Palestinian people's longstanding struggle, asserting forced displacement and denial of self-determination since Israel's 1948 establishment. 

The South Africa vs Israel case

South Africa's filing of a case against Israel at the International Court of Justice (ICJ) on December 29, 2023, marked a significant development amid the escalating humanitarian crisis in Gaza. 

In the nation’s application to the ICJ, South Africa condemned Hamas's actions unequivocally and emphasized its foreign policy objective—achieving a lasting peace between Israel and the State of Palestine, based on the borders existing on June 4, 1967. 

The legal foundation of South Africa's claim rests on allegations that Israel is violating its obligations under the Convention Against Genocide. While South Africa has labelled Israel's actions in Gaza as genocide, Israel contends that its military operations are acts of self-defence necessary to combat Hamas

The ICJ, at this stage, is not determining whether Israel has committed genocide but is considering provisional measures to address South Africa's allegations. These measures include the cessation of military operations to prevent irreparable harm while the case undergoes a lengthy adjudication process. 

The term genocide was coined by Raphael Lemkin, a Polish Jew, and its definition, as per the 1948 Genocide Convention, encompasses acts committed with the intent to destroy a national, ethnic, racial, or religious group

As stated in Article II of the Genocide Convention, these acts include killing members of the group, causing serious bodily or mental harm, deliberately imposing conditions of life leading to physical destruction, imposing measures to prevent births, and forcibly transferring children of the group. 

The ICJ's Order in South Africa vs Israel Case

In the case of South Africa vs Israel, the ICJ issued a significant order, indicating provisional measures under the 1948 Genocide Convention. The court's order specifically outlined that Israel must "take all measures within its power to prevent the commission of all acts within the scope of the convention against genocide." This directive extends to ensuring that the Israeli military also undertakes such preventive measures.

Furthermore, the ICJ's order emphasised the imperative for Israel to prevent and punish any direct and public incitement to commit genocide against the people in Gaza. In addition to these preventive actions, the court-mandated Israel to facilitate the provision of urgently needed basic services and humanitarian assistance in the region.

Said Benarbia, MENA Programme Director of the International Commission of Jurists, emphasized the gravity of the court's order, stating, "Through this Order, the world’s highest judicial authority has acknowledged that there is a risk of genocide being committed in Gaza." 

He underscored that it is now the responsibility of Israel to implement these provisional measures promptly, aligning with its obligations under the United Nations Charter. It's crucial to note that, at the provisional measures stage, the ICJ does not make determinations on the merits of the case.

The court clarified that it has yet to decide whether Israel has committed, sanctioned or incited genocide in violation of the Genocide Convention. A subsequent hearing on the merits of the case is slated to take place at a later stage, underscoring the ongoing legal process that will further scrutinize the allegations against Israel.

Is the Court’s ruling binding? And how can it be implemented?

The International Court of Justice holds that judgments delivered in disputes between states are binding upon the concerned parties and are final without appeal. However, the court lacks enforcement mechanisms. While there is no direct mechanism to compel compliance, the court's decisions carry reputational, political and diplomatic weight, influencing public opinion.

The implementation of the ICJ's ruling on South Africa vs Israel could unfold through various channels. One avenue is voluntary compliance, where Israel, as a party to the case, willingly adheres to the court's orders. This option relies on the willingness of the involved nations to uphold their international legal obligations.

Diplomatic pressure is another potential means of implementation. Nations or entities supporting the ICJ's decision may exert influence through diplomatic channels to encourage Israel to comply with the court's provisional measures. The court's decisions, having political and diplomatic implications, can shape the discourse surrounding the case.

A pivotal route involves the United Nations Security Council (UNSC). South Africa or other nations could bring the matter to the UNSC, seeking a resolution requiring Israel to abide by the ICJ's emergency measures. The UNSC, with the power to pass resolutions and enforce them, could play a decisive role in implementing the court's ruling.

However, potential challenges exist, particularly considering the historical use of the United States' veto power in the UNSC. The U.S. has previously vetoed resolutions related to the Gaza conflict, protecting its ally, Israel. 

The dynamics could shift if the UNSC passes a resolution mandating Israel's compliance with the ICJ's orders. In such a scenario, the UNSC would possess the authority to take punitive actions against Israel.

The implementation process hinges on the interplay of diplomatic efforts, political will and international consensus, with public opinion and reputational considerations adding additional layers of influence.

The International Court of Justice's order stands as a pivotal moment, recognizing the potential for genocide in Gaza. The road ahead involves complex diplomatic maneuvers, potential UNSC involvement and the formidable challenge of enforcing the ICJ's decision.


Image Credit: Le Monde

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