Last week, as the International Court of Justice (ICJ) issued a provisional ruling in South Africa’s lawsuit against Israel, it sent an authoritative message to the world: Allegations of genocide against Israel are not meritless. Notwithstanding Hamas’s unlawful conduct that started the war last October, the court clearly indicated an overwhelming disapproval of the way that Israel has been fighting the war—stating, notably, that Palestinians face a “real and imminent risk” to their right to be protected from acts of genocide.
Last week, as the International Court of Justice (ICJ) issued a provisional ruling in South Africa’s lawsuit against Israel, it sent an authoritative message to the world: Allegations of genocide against Israel are not meritless. Notwithstanding Hamas’s unlawful conduct that started the war last October, the court clearly indicated an overwhelming disapproval of the way that Israel has been fighting the war—stating, notably, that Palestinians face a “real and imminent risk” to their right to be protected from acts of genocide.
Even though the court did not rule on the merits of the genocide allegations, which may take years, it evoked strong reactions from around the globe. While human rights experts and groups welcomed the ruling, Israeli Prime Minister Benjamin Netanyahu decried the court’s decision, protesting the court’s willingness to hear the case at all.
In any case, the ICJ decision offers an opportunity for lasting peace that should not be missed. For that, credit must go to South Africa for bringing the case.
Pretoria’s “moral leadership,” as some have called it, has garnered support from many countries throughout the global south. However, other countries such as Germany, the United Kingdom, and the United States have opposed the lawsuit. Not only has Antony Blinken, the U.S. secretary of state, declared South Africa’s case “meritless,” he’s also argued that the case “distracts the world” from efforts to find a lasting solution to the conflict.
While both sides are entitled to their own views, it is wrong to suggest that a case that seeks to stem the bloodbath is an attempt to distract the world from more durable paths to peace at a time when the Israeli-Palestinian conflict is threatening to provoke a wider regional war. Since lasting solutions cannot be found within the chambers of the political organs of the United Nations, including the Security Council, which has become hopelessly dysfunctional, solutions must be sought elsewhere.
Rather than criticize South Africa for daring to launch the lawsuit that asks whether the Genocide Convention has been violated, a more constructive criticism would be to argue that Pretoria limited its case too narrowly with regard to the parties involved and the scope of its litigation—namely, by not initiating proceedings against Hamas and failing to examine crimes other than genocide, such as war crimes and crimes against humanity, which are often committed under the cover of war.
South Africa’s case mainly rests on the principle that international lawyers call obligation erga omnes. According to that doctrine, the obligation to protect human rights and humanity from acts of violence is an obligation owed to the whole world—even if they are not direct victims of said violations. Therefore, any country is entitled to bring legal action to ensure continued protection of the concerned rights , as Gambia, Canada, the Netherlands, and Ukraine have done in the past.
However, South Africa oddly limited the parties to the proceedings by omitting to initiate proceedings against Hamas, which it could have done by including Palestine as a nominal party in the case. This limitation likely results from the argument that Hamas is not a state actor, and therefore its actions cannot be adjudicated at the ICJ. That argument is flawed.
Considering that Hamas is the organization that performs the functions of government in Gaza, a geographic entity forming part of Palestine—which is recognized as a U.N. observer state—it is mistaken to argue that it is not a state actor which could trigger the international responsibility of Palestine. According to the U.N.’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, the conduct of Hamas, as the acting governmental authority in Gaza, is justiciable at the ICJ (just as the conduct of Arizona, a U.S. state, was justiciable at the ICJ in a 2001 case between Germany and the United States).
Another reason for the limitation likely results from the political debate about Palestine as a state. Given that 139 countries have recognized Palestine as a state and the U.N. General Assembly has voted to recognize Palestine as a nonmember observer state, the obstacle to initiating proceedings against Palestine at the ICJ depends on the practices of the ICJ. Indeed, Palestine is listed among the states that may be parties to proceedings before the ICJ. Notably, in 2018, the same year it was admitted as a state party to the ICJ statute, Palestine challenged the U.S. relocation of its embassy to Israel from Tel Aviv to Jerusalem.
All this is to say that it might have been preferable for South Africa to initiate proceedings against Hamas, too. Israel had compellingly argued before the ICJ that any provisional order by the court to halt the fighting would tie Israel’s hands and not Hamas’s. That argument offers a better explanation for why the ICJ’s ruling did not go as far as to order an immediate cease-fire, though it indicated several provisional measures requiring Israel to prevent acts of genocide.
By omitting to include Hamas as a party to ICJ proceedings, South Africa lost the opportunity to actually try to halt the ongoing armed conflict by compelling both sides to stop fighting—given that the Security Council has proved unable to adopt a resolution calling for an immediate humanitarian cease-fire.
South Africa also unduly limited the scope of its litigation by confining it to the question of genocide. World leaders, including U.S. President Joe Biden, who argued that Israel was entitled to defend itself and go after Hamas, have criticized Israel for indiscriminate bombings that have killed innocent civilians in Gaza, including women and children, in unprecedented numbers in recent history.
In its defense, Israel argued that it also found the scale of civilian casualties and destruction in Gaza truly heartbreaking, and that it was doing its best to minimize harm to civilians. This defense was made in spite of the many disturbing utterances of multiple Israeli officials suggesting otherwise, and the critical observations of some Israeli citizens, including soldiers, suggesting a lack of restraint. Still, Israel refused to slow down—insisting at once that it must continue bombing and attacking Gaza until it had eliminated Hamas.
The Convention against Genocide is not the only document that Pretoria could have turned to; it could have also cited the Geneva Conventions of 1949 and their First Additional Protocol of 1977, a set of treaties which in one form or another bind all nations when fighting wars. The 1949 conventions criminalize the willful killing and willful infliction of great suffering on civilian populations as well as the destruction of civilian property beyond military necessity. The 1977 protocol details the principle of proportionality and forbids indiscriminate attacks.
In any war in which there are conflicting accusations and denials about violations of these norms, the legally proper recourse is to pose those questions to the ICJ—just as countries such as the Netherlands and Canada did in their case against Syria about violation of the Convention against Torture.
It is unreasonable and fundamentally counterproductive to criticize judicial proceedings before international courts, especially when parties are seeking to intervene in life-and-death situations that the global political institutions have otherwise been unable to resolve. Indeed, no nation should object to using judicial proceedings as a last resort in seeking to stop a war.
The irony is inescapable. Since 1928, states have agreed to renounce war as an instrument of state policy and to use peaceful means—including adjudication—to resolve differences instead, an idea subsequently enshrined in the U.N. Charter. Today, there is widespread concern that the ongoing war in Gaza could broaden the conflict across the region or beyond. Given that risk, it is startling that any responsible state would support continuing an armed conflict that has killed so many and destroyed so much, when no effort had been made to use peaceful means of settlement—apart from the brief cease-fire and prisoner exchange last November.
Putting the legal merits of these cases aside, there is much value in countries such as Gambia, Canada, the Netherlands, Ukraine, and South Africa bringing these kinds of proceedings to the ICJ. If nothing else, the recent case has forced the international community to confront the problem of armed conflict, even if the only way left to do that is through the international courts. The cases allow judges to cut through all the political noise to answer legal questions.
Additionally, such litigation can help to quell the cacophony of recriminations—allegations, denials, and counter-allegations of genocide, war crimes, apartheid, crimes against humanity, and wars of aggression—that these events invariably generate. These lawsuits thus invite trained experts—specifically, highly-qualified judges from across the world, assisted by the briefs and arguments of able counsel—to deliberate these questions and then declare to the world whether there is merit in the allegations, so that they are not left at the level of defamatory political insults or disingenuous denials.
International courts now seem to be the last hope for humanity in a world where the possibilities of science have been harnessed by states to maximize destruction, while the U.N.’s ability to curb the scourge of war has largely failed.
