The case before the court, South Africa v. Israel,  crystallised two competing narratives: one that the Palestinian people, forcibly displaced and denied their right of self-determination since the founding of the State of Israel in 1948, and subjected to oppression and occupation ever since; and the opposing version that the Jewish people, who were finally able to establish an independent state in their historical homeland after generations of persecution and pogroms in exile, culminating in the systematic murder of six out of 17 million Jews during the Holocaust, and who have been under threat from hostile neighbours ever since. The problem with adversarial proceedings is that these narratives may be framed as mutually exclusive, when in fact both are true – writes Chimène Keitner, a Martin Lurther King Jr Professor of Law at the University of California Davis School of Law.

On December 29, 2023, South Africa filed its request to the ICJ to have provisional measures put in place in Gaza that would put an end to what South Africa deemed to be genocidal acts committed by Israel on the Palestinian population. Whilst condemning the actions of Hamas, South Africa called upon the ICJ to determine if Israel had plausibly violated the prohibition of genocide. The Court was expected to announce a decision weeks after the hearing, with South Africa having a keen interest on the possible grant of a preliminary order that would give the Palestinian civil population much needed relief.

 What is the ICJ?

The ICJ, short for Intentional Court of Justice, is the only international Court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations and was established by the United Nations (UN) Charter in June 1945 and serves as the UN’s  top court. Article 92 of the UN Charter provides that the ICJ “shall be the principal judicial organ of the United Nations” and shall function in accordance with the Statute of the International Court of Justice. The court is based in The Hague (Netherlands) and is composed of 15 judges elected for nine-year terms by the UN General Assembly and the UN Security Council.

Only states may be parties in cases before the court. In terms of its mandate, Article 36(1) states that the jurisdiction of the court comprises “all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Article 41(1) of the statute empowers the court, in any case before it, “to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”

What Triggered South Africa’s Legal Action?

Taking care not to ignore the historical geopolitical background of the conflict, the economic motives following the discovery of a trillion cubic feet of gas on the Gaza shoreline in the 1990s, and the US-Israeli plan to reduce dependence on the Suez Canal for global trade reasons, the case was about the nature, scope and extent of Israel’s military operations in Gaza since the heinous October 7, 2023 attack by the terrorist group Hamas. At the time the case was filed, aroud  28,000 people had died in Gaza and millions had been displaced since Israel launched its counter-offensive. The fundamental question before the ICJ was whether Israel’s actions in Gaza amount to violations of its obligations under the Genocide Convention.

What Exactly Did the Court Decide?        

On Friday, January 26, 2024, a panel of 17 judges of the ICJ delivered its ruling on Africa’s request for the indication of provisional measures submitted in the landmark case. Firstly, the court concluded that it had jurisdiction to hear the case pursuant to Article IX of the Genocide Convention contrary to Israel’s argument. Secondly, the court concluded, prima facie, that South Africa had standing to submit the dispute with Israel concerning alleged violations of obligations under the Genocide Convention to it. Thirdly, and most significantly, the court ordered several provisional measures.