South Africa vs Israel

Translated by Michela Scappaticci

The shadow of the Israeli military campaign threatens to extend to Rafah, the last Palestinian urban centre before the border with Egypt. According to the United Nations, the city would be home to more than half of the Gaza Strip's more than two million inhabitants, squeezed into an area of less than 65 square kilometres, often pushed by the southward advance of the IDF, the Israeli Defence Forces.

Prime Minister Benjamin Netanyahu ordered the army to prepare an evacuation plan for civilians in preparation for a land offensive. Josep Borrell, the EU High Representative for Foreign Affairs, sarcastically asked whether the Moon might be the chosen place to evacuate a population with its back to the wall.

At the dawn of yet another humanitarian catastrophe, even Tel Aviv's Western partners have spoken out against the imminent offensive, as Valentina Ruaro reports in a recent article.


President Biden's harsh statements would make the fate of Rafah a potential sticking point in US-Israeli relations. However, on 13 February, the US Senate approved a 95 billion dollar war aid package, 14 billion of which were earmarked for Tel Aviv and US military operations in the Middle East. Borrell again pointed out the logical inconsistency between asking Netanyahu to reduce the number of civilian casualties and persisting in offering him arms and support.

South Africa, which had accused Tel Aviv of genocide at the International Court of Justice (ICJ) in December, urged the court to impose new constraints on Israel in preparation for the offensive. While acknowledging that the "dangerous situation" in Rafah requires compliance with the provisional measures pronounced on 26 January, the ICJ declined to introduce further ones.

Nevertheless, the very measures already issued offer a lens through which to assess the impact of international law on the conflict in Gaza.

The Hague Order

Alleging Tel Aviv's violation of the 1948 Genocide Convention, Pretoria had requested the ICJ to order the defendant to "immediately suspend its military operations in and against Gaza" as part of its provisional measures. As noted in a previous article, these constitute interim orders for the parties to the case issued by the Court pending final judgment (ICJ Statute, Art. 41).

At the end of January, the UN's highest court decreed that Israel must "take all measures within its power" to prevent any genocidal act listed in Art. II of the 1948 Convention and preserve any evidence of it, provide humanitarian assistance to the Palestinians in the Strip, and issue a report on actions taken by 26 February.

As Prof. Marko Milanovic pointed out, predictably, Israel dodged the imposition of a ceasefire, receiving orders that it claims it is already implementing - considering itself innocent of the charge of genocide. However, the reputational damage is not insignificant.

The Court united in a divided world

Vague and cautious measures seem to be the price for the Court to send a message of unity. The size of the majority in all six provisional measures - never falling below fifteen judges out of seventeen, even taking into account the two ad hoc judges - contrasts a surprising unity with today's multipolar and fragmented world.

The fifteen judges who sit for nine years in The Hague are elected in groups of five by the Security Council and the UN General Assembly. Although there is no formal regional allocation of seats, in fact tradition has dictated a principle of geographical distribution. As witnessed by the newly elected US Judge Sarah Cleveland, who donned the robe on 6 February, the election campaign reflects contemporary geopolitical shifts.

Nonetheless, in the words of Prof. Nico Krisch, the Court paints 'the picture of a united world', also thanks to the frequent reference to statements by agencies and officials of the vituperative United Nations to outline the context on which the provisional measures are based.

Israeli ad hoc judge Aharon Barak himself spoke in favour of the measures ordering Tel Aviv to 'prevent and punish direct and public incitement to commit genocide' - which Pretoria attributed to many Israeli state officials, quoting them verbatim - and to allow the provision of humanitarian assistance to the Palestinian population. The outgoing US judge's favourable votes, Prof. Milanovic further reminds us, further belie the suspicions of an anti-Israel conspiracy in the UN.

Plausibility...

Having said that, the most notable element of the Court's Order is the plausibility of the provisional measures. Specifically, the recognition of the claim of genocide as plausible.

Of course, the provisional measures do not amount to a conviction against Israel, and it will likely take years for the ICJ's judgment to be obtained. However, the Court's jurisdiction over the case is limited to violations of the Genocide Convention (Art. IX of the Convention), excluding other offences such as war crimes or crimes against humanity. This means that the case, and thus the provisional measures issued pending judgment, rest only on the plausibility of genocidal intent on the part of Israel.

The ICJ held that such plausibility exists. And, as Prof. Krisch further states, a state "should not even approach the point where an accusation of genocide becomes plausible".

Moreover, the court issued the provisional measures in the context of what it calls a 'human tragedy' that began with the Hamas attack on 7 October and continued with a 'large-scale military operation' that brought death and destruction to the Strip. As Prof. Fionnuala Ní Aoláin notes, without going into the merits, the ICJ has described a 'sympathetic narrative' that is certainly not flattering towards Tel Aviv, including some statements by Israeli officials that can be accused of genocidal intentions for using 'dehumanising language'.

... and responsibility

In addition to image damage for the defendant, the Hague Court Order could have an impact on third states that are in some way facilitating Israeli operations in Gaza.

According to Prof. Janina Dill, the provisional measures would warn governments that supply arms to Israel that they are assisting "what could conceivably be a very serious international wrongdoing".

As human rights researcher Yussef Al Tamimi explains, these third states should be wary of two fundamental responsibilities.

The first is to prevent genocide, an obligation to which all contracting parties to the 1948 Convention are subject (Art. I). In particular, this duty would be triggered the moment a state becomes aware of a 'serious risk' that a genocide is about to be committed - based on the ICJ's own observations in the 2007 Bosnia and Herzegovina vs. Serbia and Montenegro case (para. 431) on the Srebrenica massacre. That the threshold of 'serious risk' has been crossed is suggested by the Court's recognition that 'there is a real and imminent risk that irreparable harm will be caused to the rights' of the inhabitants of the Strip to be protected from acts of genocide.

The second is not to become complicit in genocide. Complicity is legally and morally more serious than mere failure to prevent, and as such would require a higher threshold for prosecution.

Nevertheless, the Court Order would seem to suggest caution to states providing economic and military assistance to Israel's campaign in Gaza. For a start, by actually verifying how Israeli forces make use of such assistance on the battlefield.

In short, for once it seems that the ICJ has not hidden behind legal quibbles to avoid exposing itself with too direct a message. The message has been sent. Whether it is received is another matter.

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