The Israel-South Africa Case Before the ICJ: A Legal Examination of Genocide Allegations and Global Accountability

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Written by Lala Mustafa
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On the 29th of December, 2023, South Africa initiated litigation against Israel at the International Court of Justice (ICJ), bringing the legal dynamics of genocide into the spotlight and presenting nuanced challenges in international law. South Africa’s claim, rooted in the Genocide Convention of 1948 [2], accuses Israel of actions that, if proven, could amount to genocide against Palestinians in Gaza. While ICJ’s recent provisional measures aim to prevent further harm, the Court has yet to establish jurisdiction definitively, leaving pivotal questions about legal responsibility, state sovereignty, and the very capacity of international law to enforce human rights protections. This case, with its final judgment likely years away, not only tests these legal frameworks but also reveals the ICJ’s enduring limitations in enforcing its rulings against powerful states, underscoring the need for structural changes to strengthen international accountability.
However, before examining the ICJ’s weaknesses, it’s essential to understand the details of the case first.

Historically, the ICJ’s rulings on genocide, such as in Bosnia and Herzegovina v. Serbia 2007, have required substantial evidence of intent (dolus specialis), typically derived from statements or documented policies demonstrating a desire to erase a group’s identity.

South Africa’s legal filing against Israel at the ICJ similarly hinges on Article II of the Genocide Convention, which criminalizes acts carried out “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[3] Alleging a pattern of extensive civilian casualties, targeted destruction of infrastructure, and severe living conditions that risk eradicating Palestinian life in Gaza, South Africa argues that these actions, taken collectively, meet the definition of genocide [4]. Acting on South Africa’s petition, the ICJ issued interim orders on March 28th [5] and May 24th [6], directing Israel to halt military operations in Gaza, specifically around Rafah, and to allow humanitarian aid into affected areas. The May directive went further, mandating that Israel permit United Nations (UN) investigators to enter Gaza to assess the allegations. Despite these measures, the ICJ reports indicate Israel’s non-compliance and an ongoing deterioration of conditions in Gaza, underscoring the limits of the ICJ’s enforcement powers when states fail to cooperate. [7]

More recently, on October 28th of this year, South Africa bolstered its case by submitting over 750 pages of evidence, accompanied by 4,000 additional pages of annexes, detailing alleged acts of genocide [8]. South Africa’s task, however, is formidable: it must prove dolus specialis existed prior to the October 7th attacks by Hamas. Legal scholars, including William Schabas, argue that intent is the crux of genocide law[9], as it’s both the defining element and the most challenging to prove in such cases.[10]

Israel has argued robustly against the ICJ’s jurisdiction in this matter, emphasizing its sovereign right to self-defense against threats from Hamas, a non-state actor [11]. This defense rests on the principle that international judicial bodies have limited jurisdiction over internal security matters, particularly those involving a state’s military responses. Citing past ICJ cases like Nicaragua v. United States (1986), Israel contends that the Court should respect its prerogative to act within its territory’s security framework as questions of jurisdiction often hinge on interpretations of sovereignty and state consent [12].

Additionally, Israel’s defense before the ICJ emphasizes its “humanitarian protective measures,” such as evacuation alerts - positioning these actions as compliance with international humanitarian law’s (IHL) obligations to protect civilians [13]. Such framing strategically leverages the principles of IHL, despite counter-reports, such as those by Forensic Architecture, arguing that these evacuations have instead led to mass displacement and further civilian casualties [14]. Yet, by casting its actions as preventive, Israel potentially blurs the line between precaution and intent, creating legal ambiguity that challenges South Africa’s ability to satisfy the stringent standards for proving genocide.

Israel further asserts that South Africa’s filing lacks the direct bilateral dispute necessary for ICJ jurisdiction under Article IX of the Genocide Convention, arguing that no such dispute over genocide existed prior to the filing[15]. In contrast, South Africa frames its filing as a necessary action under the Genocide Convention, emphasizing its responsibility as a signatory to address alleged acts of genocide. For South Africa, this commitment also goes beyond legal obligation—it reflects a longstanding solidarity with the Palestinian cause that echoes its own history of opposing apartheid and challenging systemic oppression[16]. Despite South Africa’s moral and legal positioning, Israel’s procedural defenses raise significant obstacles, potentially allowing it to block a substantive judgment by relying on jurisdictional arguments alone.

The precedent for such defiance is not without foundation. In July 2004, the ICJ issued a landmark advisory opinion declaring Israel’s construction of the separation wall in the Occupied Palestinian Territories illegal and mandating its immediate cessation [17]. Rather than complying, however, Israel has instead expanded and fortified the wall over the years, further encroaching on Palestinian land and deepening restrictions on Palestinian movement, access to resources, and livelihoods [18]. For states with influential allies—especially the United States, which has consistently used its UN Security Council veto to block resolutions critical of Israel [19]—compliance with international judgments has become effectively optional. 

Given this background, even if the ICJ assumes jurisdiction and finds Israel guilty of genocide, many observers remain skeptical about the likelihood of compliance [20]. This skepticism underscores a central question: does the ICJ truly have the “teeth” to enforce its decisions? Unlike traditional courts with direct punitive mechanisms, the ICJ’s authority relies primarily on international perception and diplomatic pressure, soft power tools that may prove insufficient in compelling states shielded by powerful allies. 

Should Israel, with U.S. support, ignore the ICJ ruling, the consequences would likely be severe—not only for Palestinians but for the credibility of international law itself. Continued disregard for ICJ rulings could fuel criticisms of selective enforcement, potentially weakening the legitimacy of international legal institutions altogether. The limitations of ICJ enforcement in politically charged cases like this one underscore a broader call for reform among legal scholars and practitioners. Cassese [21] and Sands [22] have proposed increasing the ICJ’s enforcement mechanisms, either by establishing a specialized tribunal with clear jurisdiction over genocide cases or by enhancing UN Security Council (UNSC) involvement to ensure that ICJ orders are heeded. 

To further prevent enforcement from resting merely on voluntary adherence and political will, reforming the UNSC’s veto structure is essential. Currently, the veto power allows any of the five permanent members—China, France, Russia, the United Kingdom, and the United States—to block UNSC support for ICJ actions, often prioritizing national alliances over legal principles [23]. For instance, the U.S. has used its veto to block resolutions condemning Israel’s actions in Palestinian territories, as in the 2018 vote on investigating civilian deaths in Gaza [24], preventing further ICJ-backed accountability efforts. This unchecked veto power undermines the ICJ’s influence, as states may disregard ICJ rulings without fear of UNSC enforcement. Reforming the veto to limit its use in cases involving serious human rights violations, as advocated by former UN High Commissioner for Human Rights and former President of Ireland Mary Robinson [25], would ensure the UNSC consistently supports ICJ mandates. Such reform could enable a more impartial UNSC to enforce ICJ rulings effectively, thereby reinforcing the court’s legitimacy and compelling states to comply with international legal standards.

In tandem with these reforms, establishing a Standing Independent Investigative Mechanism (SIIM) could address fundamental weaknesses in the ICJ’s reliance on ad hoc investigative bodies, which are often politically constrained, delayed, and inconsistently supported [26]. In cases like Israel-Palestine, where Israel has accused the UN Commission of Inquiry (COI) of bias [27], the credibility of investigations is often compromised, and Israel’s lack of cooperation—particularly after the 2008-09 [28] and 2014 Gaza conflicts [29] —has limited access to essential evidence, weakening the COI’s capacity to conduct comprehensive investigations. A SIIM, operating independently from UNSC influence, would counter such criticisms by maintaining a standing, impartial mandate, separate from entities Israel has challenged as biased. This independence would not only reduce susceptibility to political pressures but would also allow for the systematic gathering and preservation of trial-ready evidence, lending greater credibility and robustness to ICJ rulings. The Independent Investigative Mechanism for Myanmar (IIMM), utilized in the ongoing Gambia v. Myanmar case, exemplifies this potential by rigorously preserving evidence on the Rohingya crisis, including satellite imagery and survivor testimonies [30]. While a SIIM wouldn’t provide direct enforcement power to the ICJ, it would bolster the court’s legitimacy; reputational impact is pivotal in international compliance, and judgments based on credible evidence would make it far harder for states to dismiss these rulings without facing significant global scrutiny.

At stake here is not just the legal outcome for Palestinians but the credibility of the entire international legal framework. If the ICJ cannot transcend political barriers to enforce its rulings, it risks becoming emblematic of selective justice, where principles are upheld only when politically convenient. For the Court to carry real weight, profound reforms—like rethinking the UN Security Council’s veto power or establishing an independent investigative mechanism—are key. Ultimately, this case challenges the international community to move beyond symbolic commitments, forging a system where the principles enshrined in conventions like the Genocide Convention resonate with genuine enforceability, even against the most politically insulated states.​

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