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South Africa v. Israel: What Does ICJ's Interim Ruling Mean for Gaza?



On the 25th of January 2024, the International Court of Justice (ICJ) issued its interim ruling on the claim that Israel’s actions in Gaza against the Palestinian people constitutes a breach of the Genocide Convention. This case was brought before the court by South Africa against Israel. The Court ruled that whilst it hears the case Israel must do all within its power to prevent genocide against the Palestinian people in the Gaza Strip.


The ICJ is the court of the United Nations, made up of fifteen justices, based in The Hague in the Netherlands. Contrary to the International Criminal Court (ICC), the ICJ issues judgements on cases between states rather than individuals. The ICJ provides binding rulings on cases brought before the court and all UN member states are ipso-facto party to the Court’s statute.


The binding rulings of the ICJ are based on international treaties & conventions, international customary law, general principles of law, previous rulings, and the writings of highly qualified publicists.


In this case, South Africa argues that Israel, in their actions in Gaza, have breached the ‘Convention on the Prevention and Punishment of the Crime of Genocide’, known more widely as the Genocide Convention. As Israel and South Africa are both signatories of the Genocide Convention, the ICJ can rule on cases concerning potential breaches of the convention as brought by South Africa. This is due to states’ right to bring potential breaches of treaties and conventions they are party to before the court, to ensure effective implementation of said treaty.


It is important to note that this initial ruling does not decide whether Israel has committed acts of genocide. What it does decide is whether there is a case to be heard by the Court, and if there is a case for Israel having committed genocide. In this particular case, South Africa requested that the interim ruling shall require Israel to halt action in Gaza whilst the Court considers the case. This is significant as cases before the ICJ typically take around three years to reach their conclusion, therefore a preliminary ruling would have created an immediate obligation for Israel, rather than potential acts of genocide continuing until the case is concluded in three years time. Whilst the Court did not rule that Israel should cease all military operations in Gaza, it did create a legal requirement for Israel to take action to ensure they do not as a state (as well as members of their military) commit acts of genocide.


Unfortunately, whilst the rulings of the ICJ are binding in this case, the Court has no means to enforce its rulings, as it lacks a police force or a peacekeeping force. Israel has already indicated it does not intend to follow the Court’s interim ruling on the imposition of provisional conditions. The United Nations Security Council has the power to enforce ICJ rulings at its own discretion, however, the USA being Israel's largest ally would be unlikely to allow this.


On the other hand, the ruling can be viewed as having massive political implications for the wider international community. The ICJ has a lot of influence, it is the highest Court of the UN, it has ruled there is case to answer in this scenario and Israel must not commit any further acts that can be considered genocide, such as any killings of members of the Palestinian populace. This has implications for other states’ party to the Genocide Convention, they will expect Israel to fall in line with the provisional conditions laid out by the Court. If Israel fail to do so there could be severe diplomatic consequences from states such as the UK, USA, Ireland, France and other parties to the Genocide Convention, as they may view Israel’s failure to comply, if evident, as undermining the authority of the International Court of Justice, and by extent the United Nations itself. We are already beginning to see wider consequences for Israel’s continuing military action in Gaza, Nicaragua are now bringing a case against Germany before the ICJ, claiming Germany are aiding in genocide in Gaza by supplying weapons to Israel.


In terms of what diplomatic consequences could mean for Israel, this ranges from the very basic to the very complex. In the first instance there could be more widespread condemnation of Israel’s actions, the UK Government has so far fallen short of condemning Israel’s actions in Gaza and the USA are seen to be Israel’s closest ally, a statement of condemnation by either the UK and USA at this point would leave Israel without any major allies. Israel could also be sanctioned by various countries, as occurred as a response to South Africa’s policy of apartheid in the 1980s and as is currently happening to Russia as a result of the war in Ukraine. These sanctions could be on wealthy individuals (the UK has targeted over 100 Russian oligarchs, whose wealth totals over £100 billion) or on investments (influential universities and institutions in the USA boycotted all South African investment in the 1980s). Economic and financial sanctions can lead to massive consequences for a country’s economy and thereby the funding of a war or policy.


Whilst we must take the idea of countries taking action with a grain of salt, it seems that even the US relationship with Israel is now strained. In recent weeks there have been rumours of a rift in relations between Israeli Prime Minister Netanyahu and US President Joe Biden. Israel’s international relationships are weakening, further condemnation and consequences could therefore be looming.


So whilst this ruling does have massive implications for Israel and the wider international community, there is a sense among legal commentators that there is little to no chance Israel will comply with the conditions imposed on it by the ICJ. Therefore, whilst the ruling is groundbreaking, there is still a long way to go to reach a peaceful resolution in the Middle East.



Image: Getty Images/via The Nation

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