Further Discussion of the South Africa Genocide Case Against Israel: Evaluating What the Court Might Do

Despite the Western media effort to downplay the South Africa case before the International Court of Justice charging Israel with violating the Genocide Convention, the action is still getting a fair bit of play. To recap, South Africa is seeking “provisional measures” to bar Israel from committing genocide while the Court considers a full case. We list these nine provisional measures at the end of the post. We have embedded the three key documents, the initial South Africa written filing, called in ICJ speak an “application”, the South Africa oral argument, and the Israel oral argument, in a separate post.

These “provisional measures”‘ are analogous to a temporary restraining order in the US context, to prevent imminent harm since a final decision would by (in this instance) years away. The ICJ is expected to issue its ruling in the next one to three weeks.

Despite the considerable commentary on this legal action, there seems a comparative dearth of discussion on how the court might rule and why. Mind you, it isn’t as if various commentators have not addressed considerable elements of the case, but I have yet to see an effort at a through treatment (admittedly a post from Lawfare comes close but does not consider some of the procedural questions, or the pressures on the judges). As a non-lawyer and a non-expert in this particular sort of dispute, I am relying on the input of others with domain knowledge, so further commentary welcome.

The very short version of what follows is:

The ICJ can reject the South Africa case, can accept it but not order provisional measures, can pick and choose among the provisional measures South Africa called for, can modify some or all of the suggested provisions measures or even implement its own.

Virtually all commentators have punted on the issue we focused on in our earlier post,¹ that Israel had claimed there was a serious procedural problem with the South Africa action. Even though the Israel presentation of this issue was weak and screechy (in keeping with the caliber of its oral argument), a careful reading of the South Africa oral argument and its filing says Israel may indeed have a point. And if your humble blogger could find these deficiencies, the odds seem high an Israel-friendly jurist could too. There is a question, very much over my pay grade, as to whether South Africa could refile. The analogy to similar grounds for dismissal in Anglosphere cases suggests it should be able to, but that would considerably dent the credibility of South Africa (in terms of care in going about such a serious charge) and also delay any relief in Gaza.²

The supporters of the South Africa case contend it would damage the credibility of the court if it were to fail to implement any provisional measures. That is why Norman Finkelstein has suggested that one way for the court to compromise would be to order some but not all provisional measures. My belief is that the court will not be willing to impose the two provisional measures that amount to imposing a ceasefire on Israel. The court would seem hard-pressed to reject Israel’s contention that Hamas is not a party to the Genocide Convention, so to require only Israel to put down its arms would amount to inviting a full-bore Hamas onslaught.

As for the “prestige of the court,” sadly in our neoliberal world what is likely to matter more is the prestige of the individual judges in their home countries. And we are seeing loud arguments (admittedly here from a media organ that is in the can for Israel) that the “prestige of the court” arguments go against finding for South Africa. From the Economist in Charging Israel with genocide makes a mockery of the ICJ (hat tip furzy):

With its case, South Africa is making a mockery of the court. Genocide requires that Israel is killing people in Gaza simply for being Palestinian. In fact it is targeting Hamas fighters in response to a deadly attack on its territory. Some far-right Israeli politicians have used hateful language, but they are not articulating government policy. South Africa has called on the ICJ to impose a unilateral ceasefire on Israel, which would leave it unable to defend itself against Hamas, a terrorist group whose founding charter calls for the killing of Jews. By trying to hold Israel solely responsible for the death of Palestinians, it is vindicating Hamas’s tactic of fighting from schools and hospitals in the knowledge that the death of civilians killed in the crossfire will inflame global public opinion.

The icj [sic] is unlikely to offer a final ruling for years. South Africa’s case is so flimsy that it would be shocking if its final arguments convince the judges that Israel had committed genocide.

It is astonishing to see the depth of belief among Israel-defenders, even with orthodox outlets like CNN conceding in a headline last week Hundreds of thousands are starving in Gaza as famine arrives at ‘incredible speed,’ UN aid chief warns. But that view is likely to animate some of the ICJ jurists.

The other wee “prestige of the court” problem the ICJ has no enforcement powers. It would take UN action (which the US is sure to veto) or measures by states, individually or acting in concert.³ And Netanyahu has already said he’d defy any ICJ adverse ICJ decision.

Prejudices of and Pressures on the Judges

The fifteen regular judges for the ICJ now consist of representatives from four of the five permanent members of the Security Council, the US, China, Russia, and France, and eleven other judges, from Australia, Brazil, Germany, India, Jamaica, Japan, Lebanon, Morocco, Slovakia, Somalia, Uganda (see here; (Craig Murray mentions in passing that the General Assembly succeeding in replacing the UK ICJ judge with one from India was a Big Deal; it will be even more so if against the odds, South Africa gets any provisional measures approved; new judges must get a majority vote from both the Security Council and the UN as a whole) . They are joined by two ad hoc judges sworn in for this case, one from Israel and and one from South Africa (each party to a case has the right to appoint a judge if they do not already have a national representative on the panel). We will refrain from discussing the Israel ad hoc judge, Aharon Barak, save to point out that as an Israel Supreme Court judge, he has consistently treated everything the IDF said as gospel and has supported the defiance of past ICJ rulings. He could wind up being a small net plus for South Africa by overplaying his hand.

Deciding a question in favor of the plaintiff requires a majority. So an abstention is tantamount to a vote for Israel.

Norman Finkelstein, in counting noses before the hearing, argued that France was 50/50, and that Russia and China were unlikely to vote for South Africa. Finkelstein argued neither country would want to open the Genocide Convention can of worms (any ruling that lowered the bar could be turned against them). Russia has also been pointedly staying as far away as possible from the Gaza controversy, when they would have been expected to clear their throats by now and disapprove of Israel’s actions in Gaza. Remember that as Finkelstein put it, “Germany never met a genocide it didn’t like.” Germany was quick to say it would intervene in the case in support of Israel in the trial phase. Finkelstein also pointed out that Uganda always sides with Israel.

The odds of France siding with South Africa appear to have since dropped after the French Foreign Minister lambasted the South Africa case. From Middle East Monitor:

French Foreign Minister Stephane Sejourne has suggested that Paris may not accept the International Court of Justice (ICJ)’s ruling against Israel for genocide, because it “crosses a moral threshold”.

“To accuse the Jewish state of genocide is to cross a moral threshold,” Sejourne said. “The notion of genocide cannot be exploited for political ends. This has always been our position.”

Despite some criticism within the EU, there has been no walkback.

Before you contend that these ICJ judges are, or at least could be, independent, remember that they are not appointed for life, unlike US Federal Court judges. Judges whose terms expire in 2027 or 2030 are from Slovakia, France, Somalia, China, Uganda, India, Lebanon, Japan, Judge Georg Nolte Germany and Brazil. While some ICJ judges are re-elected, that is not a sure bet.

So all these judges, unless they plan to retire, have to assume they are going back to normal life in their home countries. You don’t have to go down the ex-CIA analyst Ray McGovern/Larry Johnson line of thinking, that the US will be out to alert any possible wrong-thinking judge of kompromat that could be made public. If any of these judges are in the Collective West power structure (and the ones in those countries have to be to get into the ICJ in the first place), the judges likely know well of how an unwelcome decision could cost them: children’s applications to elite schools rejected. A spouse in a professional services business (say law or consulting) sees his clients disappear.

Finkelstein underscored this idea in a later interview, the last in a four part series on the Connections Podcast on Jadaliyya, after both sides had made their oral arguments. At 19:10, he explained that pretty much every government had taken sides for or against Israel, and it would be very difficult for a judge to buck his government. Finkelstein discussed the case of Richard Goldstone, whose career was ruined when his 2009 report to the UN found both Israel and Palestine had committed war crimes.

Remember that was 2009. Cancel culture is much more open and vicious than it was then.

Craig Murray, one of the only 14 who secured a seat in the ICJ gallery to watch the hearings live, noted how uncomfortable the judges seemed and how eager they were when Israel brought up possible procedural escape hatches. From his write-up of South Africa”s oral argument:

The South African delegation was buoyant and mutually supporting, with a lot of inclusive body language and comparative animation. The Israeli delegation was the opposite of animated. It appeared severe and disdainful…

You would not think from the body language it was Israel that stands accused. In fact the only people in the court whose demeanour was particularly dodgy and guilty were the judges. They absolutely looked like they really did not want to be there. They seemed deeply uncomfortable, fidgeted and fumbled papers a lot, and seldom looked directly at the lawyers speaking.

It occurred to me that the people who really did not want to be in the Court at all were the judges, because it is in fact the judges and the Court itself on trial. The fact of genocide is incontrovertible and had been plainly set out. But several of the judges are desperate to find a way to please the USA and Israel and avoid countering the current Zionist narrative, the adoption of which is necessary to keep your feet comfortably under the table of the elite.

And from Murray’s second day write-up:

He [Malcolm Shaw] argued that South Africa could not bring this case and the ICJ had no jurisdiction, because there was no dispute between Israel and South Africa on which the ICJ could rule…

This very much interested the judges. As I noted on day one, this got them more active than anything else when Professor John Dugard addressed the same point for South Africa. As I reported:

The judges particularly enjoyed Dugard’s points, enthusiastically rustling through documents and underlining things. Dealing with thousands of dead children was a bit difficult for them, but give them a nice jurisdictional point and they were in their element.

They were even more excited when Shaw tackled the same point. This gave them a way out! The case could be technically invalid, and then they would neither have to upset the major Western powers nor make fools of themselves by pretending that a genocide the whole world had seen was not happening. For a while, they looked visibly relieved.

In other words, the prestige that is really at stake is that of the individual judges. And not in a good way.

The Court’s Key Choices

The South Africa filing and presentation was overwhelming in depicting the unprecedented level of civilian deaths in Gaza, the destruction of infrastructure and hospitals, food shortages approaching starvation, and the many statements by Israeli officials of their intent to eliminate Palestinians from Gaza. You would think there was no other side. And by comparison, the Israel oral arguments (they did not submit a written filing before the hearing) seemed shrill, of the “pound the table” school of lawyering, although if you read Israeli official statements, they use that register an awful lot.

However, as Murray pointed out above, many of the judges would be happier if they didn’t have to decide the case on its merits, but could use procedural problems to dodge this bullet. Israel raised two, and in my humble opinion, did a very lazy and sloppy on the one that is their best shot, the matter of whether South Africa had initiated a dispute before it went to court. Note that again as Murray made clear, judges very much like dealing with legal arguments, so there is good reason to think, as with judges in other court systems, these jurists make their own determination and will not rely merely on the arguments made by each party.

Even though this court is more akin to an arbitration panel than an Anglosphere court, and thus can be forgiving on matters of procedure, it has to be mindful of the requirements of the Genocide Convention in addition to the “dispute” requirement. Per Jus Mundi:

Generally, the requesting party must satisfy the following requirements (specific analysis and case law on each requirement is available via the below hyperlinked cross-references):

1. prima facie jurisdiction of the tribunal;
2. prima facie existence of a right susceptible of protection;
3. necessity of the measure requested;
4. urgency of the measure requested; and
5. proportionality of the measure requested.

The South African side made a long and persuasive argument that the Genocide Convention imposed obligations on signatories to stop and prevent genocide, even if their country was not directly affected by it, and its lawyers marched point by point through the requirements of the Convention…except oddly proportionality.

One of Israel’s arguments amounted to “Yeah, even if you think we did something, you should be invoking a different body of law.” Lawfare discussed this notion with respect to the provisional measures that would require Israel to cease military operations, but IMHO Israel intended for it to apply generally:

This is the hole in South Africa’s case that makes an order to suspend military operations doubtful. South Africa condemned the Oct. 7 attacks and hostage taking by Hamas and other Palestinian armed groups, but it did not fully engage with the consequences of Hamas’s continuing military operations, including rocket barrages fired at Israel. It was almost as if South Africa had decided with its lawyers: Don’t mention the war. Israel by contrast talked of little else. And it spoke the legal language of war, otherwise known as international humanitarian law: precautions in attack, warnings, military targets, confronting human shielding, and legal assessments of proportionality.

South Africa was able to bring this case because of the compromissory clause in the Genocide Convention, which gives the ICJ jurisdiction to hear disputes between parties over the convention’s application. Israel, however, argued that it was IHL (the law of armed conflict) that was the appropriate law for regulating the conduct of hostilities—including hostilities with an enemy that itself flagrantly violated that law—and that provided the proper “framework for balancing military necessity with humanitarian considerations.”

In other words, Lawfare didn’t take Israel’s jurisdiction handwave seriously, but still concludes (as we surmised) that the court is extremely unlikely to order Israel to halt military operations in Gaza. The “proportionality” requirement in the Genocide Convention suffices.

Now to the dispute over the dispute.

As we warned in our earlier post, South Africa looks to have muffed the notification to Israel of a dispute under the Genocide Convention. And this is not based on Israel’s assertions, which amounts to a lame argument, “We never answered so there was no dispute.”

South Africa’s own documents suggest it did not tee this matter off properly. A reading of the footnotes in the “dispute” sections in both the original written filing and the oral argument who South Africa to have repeated misrepresented what the source documents said or stood for. This could be a serious own goal, since it would not have been hard for South Africa to have taken the extra say three weeks to properly notify Israel and giving them a deadline for replying before going to the ICJ. But the dire and worsening conditions in Gaza created time pressure.

If you read the footnotes, South Africa treats various statements by national leaders, mainly on Twitter or Facebook, sometimes to the press in their own countries, depicting Israel as conducting genocide as amounting to initiating a dispute. That does not tee off an action any more than do the many many statements to the media that China has been engaged in ethnic cleansing or even genocide against the Uighurs amount to an official action. In addition, none of the countries whose leaders used the G word with respect to Israel joined South Africa as co-filers of its application (although quite a few states later said they support South Africa’s application).

South Africa also cites several Notes Verbale it sent to Israel before it filed its application with the ICJ on December 29 as proof of a dispute. But those were all referrals to the ICC over allegations of various war crimes (you can click through from the link and read the underlying document), with only the very last including genocide. While all those other war crimes, such as ethnic cleansing, can serve to substantiate genocide, they are not in and of themselves genocide.

In addition, the ICC is not the ICJ. The ICC prosecutes individuals. From the ICC’s Understanding the International Criminal Court:

The International Criminal Court (“the ICC” or “the Court”) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression

It does not have the power to take action against states. The legal authority of the two bodies also differs. For instance, the ICC can issue arrest warrants while as we pointed out, the ICJ had no enforcement powers. Similarly, UN members can elect. So it is hard to fathom how a referral to the ICC, which could lead to action only against individuals, could be depicted as initiating action against a state.

South Africa claimed Israel had replied. From its oral argument:

By this time, the dispute had crystallized as a matter of law. This was confirmed by Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.¹⁴²

However, if you use the link in Footnote 142 (https://www.gov.il/en/departments/general/swords-of-iron-faq-6-dec-2023), it goes to a Ministry of Foreign Affairs document, Hamas-Israel Conflict 2023: Frequently Asked Questions. Item 10, the last item, addresses “What is the response to the charge that a “genocide” is taking place in Gaza?”

FAQ is a format used for communicating with the media and the general public. I asked Aurelien about whether this sort of response could be considered to be a reply. Aurelien does have some knowledge of this area; as he noted, “although I was very deeply involved in the practical aspects of punishing atrocities at one point in my life, and even wrote a book about it.” He did point out that there is a lot of legal literature and substantial case law what it took for a matter to amount to a dispute for ICJ purposes. The bottom line is there seems to be no consensus. However, the matter of the “reply via FAQ”: is in a different category. His take:

In my experience such responses have no legal standing at all. They are just like answers to questions in an interview on TV.

South Africa does say it sent an additional Note Verbale on December 21 but that text was provided only to the judges so we cannot tell how it tried to finesse that the earlier complaints effectively had been about individuals, and not the State of Israel.⁴ South Africa filed its application a week and a day later, which IMHO is an insufficient amount of time for a substantive response. Even in the US on procedural matters, 10 to 15 days is the normal deadline in most jurisdictions for a reply.

Again, this is a very muddled area. But Aurelien’s bottom line, before I pointed out that that “reply’ was a mere FAQ,, a negative for South Africa, was that an “activist” bench could find for South Africa on the matter of whether this dispute actually had “crystallized”. Again from Aurelien: “I suppose it depends how brave the Court is feeling.”

I suspect the more likely determinant of which way the court goes on this issue is what would happen next if the ICJ were to determine that South Africa had not actually initiated a genocide dispute for its purposes. To a layperson, this sounds analogous to dismissing a case for improper service. That sort of dismissal is “without prejudice”, as in the plaintiff can try again. If the Court were to reject the filing on this basis, it would presumably have to articulate how South Africa fell short so it could reboot properly. This would certainly hurt South Africa’s credibility. Would it hurt the judges…more than they might worry if they found for South Africa? And if a refiling is possible, it would also mean the case likely back in their laps after more preliminary wrangling between Israel and South Africa. But then again, things could change in the meantime to reduce the pressure on the court….such as a lengthy ceasefire.

Other Options for the ICJ

We’ll cover this final topic quickly.

The ICJ could rule against all the requested provisional measures but allow the case to proceed on the normal dispute timetable, as in years. Aside from that course of action allowing Israel to continue its horrorshow in Gaza, remember also, unlike normal genocide disputes where one party is the alleged perp and the other the victim, Israel has a much better access to information, particularly now that Internet access has been repeatedly cut, journalists are an endangered species, and few (no?) NGOs and UN officials have access.

As we indicated above, the test of proportionality suggests the ICJ will not approve the requested provisional measures 1 and 2, to suspend formal and irregular military operations in Gaza. I suspect they will not approve of 3 (to prevent genocide) since that is an obligation under the Genocide Convention, to which Israel is already a signatory. Having its duties reaffirmed via a provisional measure is arguably prejudicial.

If we lived in a sane and humane world, it should be a no-brainer for the Court to implement the remaining provisional measures (with the removal of the word ‘desist” which Israel has complained is prejudicial) which call for Israel to provide humanitarian relief, stop killing Palestinians as members of the group, and (effectively) stop making Gaza uninhabitable. The other measures call for preservation of evidence, allow access by fact-finders, and submit regular reports to the ICJ. But requiring Israel to implement any provisional measures requires the ICJ to have determined that South Africa made a sufficiently strong case that Israel was engaged in genocide in Gaza. That is what quite a few ICJ judges really do not want to do.

So sadly the odds favor the ICJ punting, either via a procedural issue such as the one I outlined, or worse, a failure to get the needed votes on the merits of the case.

If that is the outcome, it will only confirm that there are two standards of justice in the world, one for white colonialists⁵ and another for everyone else.

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¹ This includes John Mearsheimer.

² The ICJ has such a big history of hearing disputes that there are almost certainly procedural precedents. But none were in high-stakes cases like genocide.

³ I believe there are some measures that take effect automagically in certain states due to pre-existing law. Whether provisional measures would trigger them is again over my pay grade.

⁴> From the transcript of the oral argument:

However, as a matter of courtesy, before filing the present Application, on 21 December 2023, South Africa sent a Note Verbale to the Embassy of Israel to reiterate its view that Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State party to the Genocide Convention, was under an obligation to prevent genocide from being committed143. Israel responded by way of a Note Verbale that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute. This was emailed late on 27 December 2023, this Note Verbale was received by the relevant South African team on 29 December 2023 after the present Application was filed.

I am trying to avoid reliance on anything Israel has said, but my impression from the Israel whinging is that if a reply were made, the potential plaintiff needs either to address that, as in have some back and forth with the offending State before going to the ICJ and discuss that history, or alternatively, explain it its application why the reply confirmed that that there was an irrevocable dispute.

⁵ Who is white changes over time. The Irish in the US in the early 1900s were not white. Matt Stoller and Alastair Crooke, among others, maintain that (at least) Ashkenazi Jews are white.
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South Africa’s requested provisional measures:

(1) The State of Israel shall immediately suspend its military operations in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above.

(3) The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.

(4) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
 (a) killing members of the group;
 (b) causing serious bodily or mental harm to the members of the group;
 (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
 (d) imposing measures intended to prevent births within the group.

(5) The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
 (a) the expulsion and forced displacement from their homes;
 (b) the deprivation of:
  (i) access to adequate food and water;
  (ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
  (iii) medical supplies and assistance; and
 (c) the destruction of Palestinian life in Gaza.

(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.

(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.

(8) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.

(9) The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve it.