South Africa brings action against Israel for genocide before the International Court of Justice (ICJ)
With link to full text of the complaint
South Africa brought a case against Israel in the International Court of Justice (ICJ) under the 1948 Genocide Convention together with a request for an indication of Provisional Measures, on December 29, 2023.1
UPDATE
Paul Nuki of The Telegraph has published, on January 10, 2024, a comprehensive review of the allegations in the case with commentary on how the case could influence the actions of other states.2
In a Press Release on January 3, 2024, the ICJ announced that public hearings on South Africa’s Request for Provisional Measures would be held on February 11 and 12, 2024 in the Peace Palace in The Hague, the seat of the Court..3
South Africa will present its arguments on Thursday, February 11, from 10 am-12pm. Israel will present its arguments on Friday, February 12, from 10 am-12pm.
The proceedings will be streamed live and on demand on the Court’s website and also on UN Web TV.
Jake Johnson writes in Uncommon Dreams that Israel is reportedly pressuring governments to denounce the proceedings4
Johnson reports,
According to a cable obtained by Axios, the Israeli Foreign Ministry is calling on the country’s embassies to pressure host country diplomats and political leaders to swiftly issue an “immediate and unequivocal statement along the following lines: To publicly and clearly state that YOUR COUNTRY rejects the outrage[ous], absurd, and baseless allegations made against Israel.”
Axios reports that the U.S. in knee-jerk fashion already denounced the South African complaint:5
The Biden administration has already rejected South Africa’s appeal.
“We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever,” the White House National Security Council spokesperson John Kirby said on Wednesday.
Kirby’s statement only reveals how closely identified with the Israeli government the Biden administration is, and how clueless regarding international law and its influence on other governments it is.
Three years after taking office, Secretary of State Antony Blinken has yet to nominate and secure the confirmation of the top international lawyer in the government, the Legal Adviser to the State Department. In 2013 Barack Obama nominated Avril Haynes, the current Director of the CIA, for the position. Her nomination was subsequently withdrawn. Since that time, in 2013, the position has remained unfilled, with the duties of the office being carried out by an acting Legal Adviser.
Israel is justifiably concerned.
At long last, Israel’s actions in Gaza will be measured against the requirements of international law.by an independent, authoritative institution.
The hearings on February 11 and 12 relate to the indication of provisional measures, the international judicial equivalent of a binding injunction but one which the Court lacks the power to enforce.
Israel is likely to ignore the Court’s interim order. The next phase of the proceedings will be on the “Preliminary Objections” Israel will raise regarding the jurisdiction and competence of the Court to hear the case.
This will take time. After the Judgment in the Preliminary Objections phase of the case, assuming the Court finds it has jurisdiction and is competent to hear the case, the Court will then proceed to the Merits phase of the proceedings. In the Merits phase, the Court will receive evidence, hear arguments, and reach decisions regarding the allegations contained in South Africa’s complaint.
The whole process could take a couple of years. In the case of Nicaragua v. U.S., brought by Nicaragua in 1984, the Court issued an order of interim protection in 1984, a decision holding it was competent to hear the case, and in 1986 a final Judgment on the Merits condemning the United States.
While the proceedings will take time, the final judgment on the Merits by the International Court of Justice may contain a harsh condemnation against Israel and the government of Benjamin Netanyahu for their actions in Gaza since October 7, 2023.
The legal gears have been engaged. There is little Israel can do to avoid the ultimate judgment of the Court.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See,
1)Patrick Wintour, “Stakes high as South Africa brings claim of genocidal intent against Israel; Israel’s decision to defend itself at the international court of justice will make it harder for it to brush aside any adverse finding,” The Guardian, January 4, 2024.
2)South Africa, “Application instituting proceedings and request for the indication of provisional measures (South Africa v. Israel), December 29, 2023.
Paul Nuki, “Q&A: Will Israel be charged with genocide at The Hague? As the case goes to court tomorrow, legal teams say some of the strongest evidence comes from Israel's own leaders,” The Telegraph, January 10, 2024 (4:26 pm).
Paul Nuki, GLOBAL HEALTH SECURITY EDITOR, LONDON and Lilia Sebouai10 January 2024 • 4:26pm
International Court of Justice, “Request for the indication of provisional measures; Public hearings to be held on Thursday 11 and Friday 12 January 2024,” Press Release No. 2024/1 3 January 2024,
Jake Johnson, “Israel Accused of ‘Effort to Intimidate the Judges’ Ahead of Genocide Hearings; ‘Israel is pressing others to denounce the case in the hope of persuading the International Court of Justice to decide based on politics rather than the facts,’ said one critic,” Common Dreams, January 7, 2024;
Barak Ravid, “Inside Israel’s plan to quash South Africa’s Gaza genocide case,” AXIOS, January 5, 2024.
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