The International Court of Justice (ICJ), which sits in The Hague, is in the spotlight as

Israel’s military campaign in Gaza passes its 100th 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 article 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 7 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 Benjamin
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 (ICC), 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 onward.

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, “[T]he 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 annihilating the groups themselves” (emphasis
added). 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 2 million 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 (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 play an important role in
expressing the views of states, has called for an immediate humanitarian cease-fire,
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 nine-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.
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, the court is unlikely to 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 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 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 “[g]enocides 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, that 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 a 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: (a) ensuring that sufficient humanitarian aid can be
delivered and distributed, even knowing that some of it will be seized by Hamas; and
(b) 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.