The case South Africa v Israel at the International Court of Justice

The case South Africa v Israel at the International Court of Justice: legal and political considerations

The order on provisional measures issued by the International Court of Justice (ICJ) on January 26, 2024 in the case that South Africa has filed against Israel for alleged violations of the Genocide Convention has raised many different reactions and points of view. Hypothesis and claims about who won and who lost have then become the main issues of debate.

The ICJ has issued its order based on the powers recognised by article 41 of its Statute. According to it, the court is endowed with powers to illustrate provisional measures to be put in place in order to preserve the rights of parties (all parties involved, not only the party that submits a request for provisional measures) which, during the pending period to reach a final decision, may see their position or interests prejudiced. These measures can either be requested by one of the parties to the dispute or can be ordered proprio motu by the court. Before this process can begin, the court must ascertain and satisfy itself in terms of jurisdiction over the case (prima facie analysis).

At this stage of the proceeding, the court was not called on the analysis of breaches of substantive law, but the analysis of plausibility of breaches.

In the session that took place on January 11 and 12, the parties submitted and presented their positions on jurisdiction, admissibility, and requests. South Africa also submitted a list of requests of provisional measures to be implemented against Israel. The most compelling request concerned the halt of hostilities in the war that erupted between Israel and Hamas following the terrorist massacre of October 7, 2023. The court eventually issued an order on provisional measures, but it did not accept the request of putting an immediate end to the hostilities.    

The question on who won and who lost does not have a clear cut answer. South Africa may be considered the winner by the media. Similarly, the issue of the order may be damaging for Israel from a diplomatic point of view as it would add legal ammunition to the States and non-state organisations that have traditionally held an anti-Israel stance over the years. At the same time though, the decision of the court not to issue an immediate halt to the hostilities in the Gaza Strip, which would have been the most impactful measures that could have been taken, can lead to the conclusion that the court recognised and preserved Israel’s right to self-defence .

From the South African perspective, the fact that the court recognised jurisdiction prima facie could be seen as a partial victory. The court has also established that “some of the acts and omissions alleged by South Africa […] appear to be capable of falling within the provisions of the Convention.” 

An overall analysis of the order leads to the conclusion that the court does not recognise to have the elements necessary to ascertain whether acts of genocide have taken place in the Gaza Strip by the Israeli Defence Forces (IDF). Therefore the measures that have been ordered become mostly a reiteration of the obligations under the Genocide Convention, a reminder of the duties, not a sentence on misdeeds committed.

In its order, the court sanctions the statements of some of some Israeli leaders, such as the President Isaac Herzog and some members of the Israeli cabinet, considering them inflammatory. As such, it reiterated the duty of these officials in speaking responsibly and the duty of Israeli judicial bodies to prosecute individuals that promote ideas that can be considered incitement, even in a borderline fashion.

The court’s order for Israel to report back to the court within one month and present the action plan put in place to further the protection of Palestinian non-combatant population is a twofold tool. The opposers to Israel’s reasons see this order as a sanction of its behaviour in combat. Opposite to this approach, the supporters of Israel see it as an opportunity for the Jewish State to submit further evidence of its bona fide throughout the military operation. A similar view can be expressed about the order concerning the preservation of evidence until the court analyses the allegations against the provisions of substantive law. 

Binding or not binding character: legal effect of provisional measures orders

The binding character of provisional measures has often been subject of debates among academics. The practice and provisions within international tribunals are not steady and consistent.

In the case of the ICJ Statute and the European Convention on Human Rights (ECHR), the documents are silent about the effects of provisional measures. A silence that sparks debates over the legal effects of provisional measures. In the case of the United Nations Convention on the Law of the Sea (UNCLOS), instead, the article 290(6) UNCLOS establishes that the parties to a dispute must “comply promptly” with provisional measures. This different approach among international judicial bodies keeps the debate ongoing.

For what concerns the ICJ, Collins (1994) discusses the topic of provisional measures as expressed in the article 41 of the ICJ Statute mentioning the different opinions and positions held by Lauterpacht and Fizmaurice.

According to Lauterpacht, provisional measures are not binding. In his position, the focus has to be placed on the language of the article and on the fact that “legal consequences of liability in public international law are generally limited.” In these terms, therefore, an order on provisional measures should be perceived as a warning with likely consequences if not respected.

A different position is held instead by Fitzmaurice, where provisional measures are considered binding, with the focus placed on the purposes. What Fitzmaurice stresses on is the fact that if provisional measures were not to be understood as binding, then the whole raison d’être of their institution would be missed.

 Interesting is the case of Merrills, who changed position on the matter over time. In 1995 he held the position that the provisional measures issued by the ICJ are not legally binding, while in 2005 he stated that they are legally binding. This change of position within scholars can be attributed to the development of international law and the sensitivities that the international community relies on.

In the La Grand case, the ICJ held the opinion that the power of the court to issue provisional measures is based on necessity and that article 41 of the Statute “is to prevent the court from being hampered in the exercise of its functions.” It also reiterated that article 41, when read in context, should be interpreted as binding. If provisional measures were not to be considered binding, then these interpretations would be contrary to the purposes of article 41 itself. The La Grand case was the first time that the court expressed its position in terms of binding character of the measures.

In the order issued in the case submitted by South Africa against Israel, the court reiterated its position that interim measures “have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed.” In this case Israel.

Regardless of the academic debate, the nature of the case, the echo it has in the international community will lead to consider these measures as binding.  

Considerations about the order and the context

The court, as an organ of the United Nations (UN) as expressed through article 7 of the UN Charter, has referred to data and figures expressed and relied on by UN bodies, agencies and committees and treated them as impartial and even neutral. All of this while recent investigations within some of the UN agencies working in the Gaza Strip, such as the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), are highlighting a different picture of the situation.

The particularities of these figures concern the fact that they are based on statements made by the Health Ministry in the Gaza Strip (therefore Hamas) and that do not distinguish between combatants and non-combatants. The court did state that the figures referred to could not be independently verified, however used and referred to in an order of this type, with the political echo and controversy that the case has, becomes a legalisation of approximation and bias.

The court could have chosen other options at its disposal. One of these could have been reference to the humanitarian tragedy on display in the conflict without referring to figures that could not be verified. Other options could have been the inclusion of a statement that these figures do not include only civilians, but also combatants or, stretching further, include the Israeli figures, although approximate, on the number of Hamas terrorists killed in the military operations. 

Considering the sensitivity of the case, it would have been an act of legal probity to conduct an analysis of the bona fide of South Africa, an assessment of any direct or indirect interests, its track record for what concerns support for the work of international judicial criminal bodies, such as the International Criminal Court (ICC) in the case crimes against humanity, war crimes, and genocide against former Sudanese president Omar Al-Bashir. South Africa did condemn Hamas’s attack on October 7, 2023, however in its submission it hardly mentioned the type and extent of atrocities perpetrated on Israeli soil against Jews for the overwhelming part, but also Arabs and foreigners. Just as it totally failed to mention the genocidal intent of Hamas as expressed in its Charter.

The court, in its pronouncement, has highlighted how all parties to the hostilities are bound by international humanitarian law (IHL). However, the order refers solely to Israel as the case is brought against it, not Hamas, which is not a state, therefore a case against it could have not been brought forward. In the order, however, the court could have included measures applicable to South Africa as well. An example could have been reminding South Africa about its obligations under the Genocide Convention, such as prohibition of aiding and abetting. Similarly, in the statement concerning the call for immediate release of hostages, the court could have issued an order to South Africa to report back to the court about its efforts in interceding with the leadership of Hamas for the release of the hostages. It would have been only a symbolic order, with no real effects, but would have given a signal and been a reminder to the whole international community about its responsibility of treating all the victims of the conflict impartially. Not only one side.

The court could have done better when referencing the statements of Israeli leaders. Particularly for what concerned the comments made by President Herzog and the Ministry of Defence, Yoav Gallant. Taking at face value the construction made on those statements by South Africa and cutting off the parts of those same statements that would have provided context were not a sign of probity and fairness.

An analysis of the order leads to the conclusion that the ICJ has not issued any practical measures to be implemented for the IDF. The analyst Yonah Jeremy Bob comments that “the most troubling practical item in the ruling for Israel is the need to report back to the ICJ in one month, something which leaves the door open to a more serious order at that time.” 

Some other aspects that can be highlighted from the issue of the order concern the fact that, although the court referred to the events of October 7 as a massacre, it did not consider the use that Hamas makes of human shields and civilian facilities, such as schools, refuge shelters, mosques, and health centres and hospitals. Similarly it did not make any reference to the rocket barrage falling on Israel after those events, the precautions taken and efforts made by the IDF to avoid as much as possible harm to civilians “at the cost of allowing Hamas leaders to escape” (Bob).

The dissenting opinion expressed by the ad hoc judge Ahron Barak refers to the decisions made by the court based on falling short evidence. On an analogous line of reasoning the permanent ICJ judge Julia Sebutinde voted against all measures expressed by the court. In her dissenting opinion, after expressing the position that the conflict between Israel and the Palestinian people is a case of historical and political nature, recalling the need to refer in bona fide to previous UN Security Council resolutions to find a permanent solution that can guarantee safe coexistence between the different sides, she follows the reasoning that the dispute is not of a legal character, “susceptible of judicial settlement by the Court.” With reference to the application submitted by South Africa, she holds the opinion that “some of the preconditions for the indication of provisional measures have not been met” as South Africa has submitted evidence able to prove “even on a prima facie basis” that the alleged misdeeds committed by Israel “were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention.” As consequence of this reasoning,  South Africa “has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention.”

Conclusions

Drawing further conclusions from the order, the court implicitly accepted the position expressed by Professor Malcolm Shaw KC, one of the members of the legal team representing Israel before the ICJ, that the existence of a conflict does not in itself qualify it as a genocide and that therefore the term genocide should not be watered down and weakened. The nature of the case, its echo within the international community, and the humanitarian and conflictual context in which it develops would have hardly brought the court to dismiss the case at this stage. For this reason, among others, the real effect of this order is much more limited than what is represented and claimed by the parties opposing Israel. The real challenge for South Africa will be to prove the breach of substantive law.

One of the paradoxes of these types of cases is that any state, despite hypothetically having a controversial track record of human rights or compliance with international standards or expectations, can bring before the ICJ a state that is acting in self-defence.

This case raises issues about the politicisation of legal international fora. In an international community more and more bipolarised, with the emergence of several actors that aim to reset their positions in the international arena, this case is likely to have consequences in the relations with states, with the Genocide Convention becoming a tool to hijack or blackmail other states.

One of these countries is South Africa, which in turn has a long history of anti-Israel stances since Nelson Mandela’s presidency and passing through events such as the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance that took place in Durban in 2001.

The case submitted by South Africa, the way it construed and presented its arguments during its oral submission on January 11, 2024  does not seem to have filed the case with the intention of winning it. It seems more that its intentions were focused on disrupting the IDF operation.

Recent investigations are highlighting a financial network in support of Hamas existing through some South African banks and financial institutions. Similarly, its refuse to arrest of the former Sudanese Head of State Omar Al-Bashir accused of genocide by the ICC casts doubts on its bona fide in the submission of the case against Israel.

References:

• Statute of the International Court of Justice
• United Nations Charter
• Application Instituting Proceedings and Requests for the Indication of Provisional Measures
• Public sitting held on Thursday 11 January 2024, at 10 a.m., at the Peace Palace, President Donoghue presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Verbatim Record
• Public sitting held on Friday 12 January 2024, at 10 a.m., at the Peace Palace, President Donoghue presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Verbatim Record
• Order of 26 January 2024, Order Application of the Convention of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
• Dissenting Opinion of Judge Sebutinde
• Separate Opinion of Judge ad hoc Barak
• Collins, L. Essays in International Litigation and the Conflict of Laws. (Oxford: Clarendon Press, 1994) [ISBN 0198257325], pp.214–233 (Chapter XIV ‘Interim measures in International Tribunals’).
• Merrills, J. ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’, 44 International and Comparative Law Quarterly (1995)
• Merrills, J. International Dispute Settlement. (Cambridge: Cambridge University Press, 2005)
• International Court of Justice, La Grand Case (Germany v. United States)
• Yonah Jeremy Bob, “ICJ badmouths Israel for 35 minutes, then Israel wins – analysis”, Jerusalem Post, January 26, 2024; an updated version of this analysis has been published on January 27, 2024
• Ohad Merlin, “Major South African banks provide platform to fund Hamas”, Jerusalem Post, January 24, 2024; an updated version of this analysis has been published on January 25, 2024
• The Covenant of the Islamic Resistance Movement (commonly known as Hamas Charter or Hamas Covenant)