The International Court of Justice: A Case for Political Theatre or Justice?

On Dec. 29, 2023, the Republic of South Africa filed an Application before the International Court of Justice (ICJ), the highest judicial court of the United Nations, on alleged violations of the Israel state under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) regarding Palestinians in the Gaza Strip. 

The ICJ is the primary judicial body for the UN and adjudicates disputes between member states. The court does not issue resolutions filed by actus populous, or disputes from individuals or non-governmental organizations. The ICJ’s foremost power is its ability to issue provisional measures and compulsory jurisdictions as resolutions of disputes between states. The South African government is calling for the ICJ to prevent Israel from continuing crimes in Gaza, requesting an emergency provisional order before the main case begins. Throughout the trial, the bombardment of Gaza continued. But the momentum of the Application cannot overshadow the limitations of the ICJ and its ability to enforce an emergency or provisional measure effectively. Is the court capable of providing justice in the region, or will this case be an unresolved act in political theater?

The lives of Palestinians in the Gaza Strip that once attempted to thrive in what Human Rights Watch regards as “the largest open-air prison in the world” have faced a relentless bombardment since Oct. 8, 2023. As of Jan. 11, 2024, ABC reported that the siege of the Gaza Strip had killed 1 percent of Gaza’s population, or nearly 24,000 people, of which more than 10,000 were children. An additional 7,000 are reportedly buried under rubble and 1.9 million people—over 80 percent of the population—are internally displaced. The United Nations Secretary-General Antonio Guterrez referred to Gaza as a "graveyard for children." Israel’s targeted bombardment of Gaza has reasonable evidence to prove the murders of 200 medics, 102 United Nations (UN) staff, and 41 journalists—and continues to date.

The calls for a humanitarian ceasefire in Gaza continue from Palestinians, pro-Palestinian campaigners, human rights defenders, and on Dec. 12, 2023, 153 member states of the United Nations General Assembly. Despite the action of member states, the U.N. Security Council failed four times, the United States its recurring opponent, to adopt a resolution of a humanitarian ceasefire, although the Council continues discussing a fifth text. 

South Africa’s Application establishes that “acts and omissions by Israel...are genocidal in character, as they are committed with the requisite specific intent...to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnic group.” The 84-page document states that the conduct of the Israeli state, through its agents and entities acting on its instruction to Palestinians in Gaza, directly violates its obligations under the Genocide Convention, stating that “Israel, since Oct. 7, 2023. in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide.” 

The two-day public hearing began Jan. 11, 2024. Over the two days, the key to unlocking this case is through Article II of the Genocide Convention by proving genocidal intent. To prove the actus reus, the physical act of genocidal intent, the South African legal team relied on UN material, memos and data and purported intent from Israeli senior officials including Israeli Prime Minister Benjamin Netanyahu. The five-point argument summarizes the Application: mass killings of Palestinians, bodily and mental harm, forced displacement, food blockade, destruction of healthcare systems, and prevention of Palestinian births. 

Israel claimed its military actions did not violate the actus reus requirements, that the attacks on Gaza were not in violation of international humanitarian law, and that they could not be illegal under the Genocide Convention. The Defense lawyers identified the statements of senior officials as not reflective of government policy. Malcolm Shaw, a member of Israel’s legal team, argues that the statements were made in the immediate aftermath of an event that severely traumatized Israel. Israel's foreign ministry spokesman, Lior Haiat, took the step of accusing South Africa of acting as the “legal arm” of Hamas.

Following the end of hearings on Jan. 12, 2024, South Africa did not have an opportunity to rebut the Israel defense. The case depends on the Court’s willingness to see genocidal intent as plausible, meaning it is not a charge of genocide, but the Court has to afford merit to the evidence presented. Some analysts find the Court may lend a statement on the siege in Gaza, but will not fulfill the provisions South Africa requests. Regardless of the outcome, a decision from the ICJ could take months to years. 

The ICJ issued its provisional measures on Jan. 26, 2024. The court stated it had prima facie jurisdiction, meaning some of South Africa’s claims of Israel violating the Genocide Convention are plausible. The Court believes that Israel failed to provide enough factual evidence to dismiss the case. Additionally, they also honored South Africa’s urgent request for provisional measures in lieu of a final adjudication. The Security Council cannot thwart this statute; however, it does not mean it needs to be followed given the ineffectual history of provisional measures.

Some scholars have said the South Africa ICJ case is historic. When the Application was filed the case was ridiculed as meritless by Israel, the United States, France and the United Kingdom; which is doubly significant since the latter three countries serve as permanent members of the UN Security Council. However, the ICJ ruled that South Africa presented a plausible case and will continue its investigation into the Israeli military bombardment on Gaza. It is also significant the positionality of a Global South nation such as South Africa utilizing international arbitration courts as an avenue to identify what South Africa recognizes as apartheid of Palestinians in Israel. 

The efficacy of the ICJ varies. Previously provisional measures regarding the civil war in Myanmar eased tensions there, whereas in the Russia and Ukraine conflict, there was no effect. Is the case mere political theater? With the limitations of the UN, following Security Council restrictions, to what extent can international institutions be reliable enforcers of international human rights? Given that military operations have not paused in Gaza, while the formerly designated safe zone in the southernmost border city Rafah has become a site of bombardment by the Israeli military, the ICJ’s stance on plausibility has not been enough to protect Palestinians or to encourage the Security Council to put forth a ceasefire resolution, rendering these provisional measures more theatrical in egalitarian values than it actually is. Experts have regarded this decision as unlikely to curtail Israel’s stance, given the U.S.'s demonstrated support of Israel, which has potentially potent implications for future genocidal charges against states.  

South Africa called it a “decisive victory”; meanwhile, Palestinians in Gaza pointed out the absence of the word “ceasefire.” It will take months to years for the ICJ to determine if Israel has committed genocide in Gaza, but when the resolution does come out what are we to expect? This case is without precedent and a watchful eye on the resolution issues by the ICJ will be historic, but will it be effective? To bear an effective result, it requires more than dismissed provisional measures but an intentional decision from global governance to save Palestinian lives and serve as a first stepping stone to end the conflict.

The image used in this article is licensed for noncommercial reuse under the Getty Images Rights-Managed License. It has been unaltered from its original form created by Remko de Waal on 31 January 2024 and can be accessed here on Getty Images.