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South Africa, Israel made their cases at the ICJ. What next?

ICJ Gaza genocide: South Africa and Israel have made their cases. What next?
5 min read
12 January, 2024
South Africa has asked the ICJ to call on Israel to "immediately suspend" its indiscriminate attacks on Gaza but will the global court endorse this?
South Africa and Israel made their cases at the ICJ in public hearings this week [Dursun Aydemir/Anadolu via Getty]

Israel and South Africa have each made their cases in public hearings at the International Court of Justice (ICJ) this week.

South Africa has accused Israel of committing genocide against the Palestinian people in Gaza. More than 23,700 people have been killed in Gaza since Israel launched its war on 7 October, after a large-scale attack by Hamas.

Israel has conducted indiscriminate bombings, arbitrary killings, and tortured detainees over the course of its onslaught, which has lasted more than three months.

Now that the public hearings are over, what can we expect next? And how long will we have to wait for any outcomes?

What next?

In its filing to the ICJ, South Africa asked for the court to issue several orders to be placed upon Israel.

These include having Israel "immediately suspend" its Gaza offensive, stop forced displacement of Palestinians in the territory and enable humanitarian access, as well as preserve evidence.

The decisions of the ICJ are binding upon countries, and cannot be appealed. However, the ICJ has no way of enforcing its rulings and they are sometimes completely ignored.

The ICJ is not known for its speed but "provisional measures" take priority over all other cases and a decision can be relatively quick - a matter of weeks.

The ICJ can order all of the measures requested by South Africa. It could decline to order anything. It could order something completely different, or even decide it is not competent to judge.

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Mazen al-Masry, a law professor at City University of London told The New Arab's Arabic-language sister site Al-Araby Al-Jadeed that it was highly likely that the court would accept South Africa's request that there be a temporary end to fighting.

"The question remains: what will be the content of the decision? Will something similar to that issued for Russia and Ukraine to stop the fighting? Or will it relate to the entry of humanitarian aid? Or oblige Israel to fight according to the standards of international law? 

"This is what we will learn in the coming days," al-Masry said. "It may take from a week to two months."

After the court decides whether or not to apply emergency measures, it will then look at the broader case "on the merits" - South Africa's charge that Israel is in breach of the UN Genocide Convention.

A ruling of the broader case "on the merits" on the other hand will probably take several years.

The decisions of the ICJ are binding upon countries, and cannot be appealed. However, the ICJ has no way of enforcing its rulings and they are sometimes completely ignored.

On the likelihood that the court would rule in favour of South Africa, lawyer and legal researcher Alaa Mahajna told Al-Araby Al-Jadeed: "In my belief, there is no national or international judiciary that is completely politically independent. 

"Judges are influenced by the positions of the countries that they come from... they are subconsciously influenced when the topic is related to a political issue and is on the media agenda extensively, and there is polarisation around it within society - especially in countries allied with Israel, even if public opinion in these countries is against the war."

Israeli case: 'No special intent'

Israel's legal team said South Africa's claim was baseless and they had failed to make the case for provisional measures to be placed.

Israel said the ICJ had no jurisdiction under the Genocide Convention to order it to halt its military actions in Gaza.

Senior counsel Malcolm Shaw said that Israel did not have the needed "special intent" to commit crimes under the Genocide Convention.

Tal Becker, legal advisor of the Israeli foreign ministry told the court that if anyone was suffering a genocide it was Israelis.

He claimed that the orders South Africa had asked for would leave Israel defenceless against Hamas, a group who he said committed a "wholesale massacre" on 7 October and had genocidal intent.

In a moment of absurd comic relief, Malcolm Shaw said he had lost a page of his argument

"Someone has shuffled my papers", he told the court - and the world.

Political representatives from Palestine and South Africa held a press conference after Israel made its case.

"Our request for provisional measures remains strong," Zane Dangor, the Director-General at South Africa's Ministry of International Relations told press.

Dangor said the recent measures Israel presented to the court as evidence that it was trying to minimise harm to civilians in Gaza was no guarantee of the safety of Palestinians in the run-up to a court verdict.

He also said that South Africa took "strong umbrage" against claims made Thursday by Israeli politicians that South Africa was serving as the legal arm of Hamas.

"This legal team represents the people of South Africa," he said.

Ammar Hejazi, assistant to the Palestinian foreign minister told press that the case Israel presented "no solid arguments on the basis of fact and law".

Israel's case was made up of "debunked lies that have been said before, that have been debunked before", Hejazi said of claims including that Hamas militants were using hospitals as military bases.

South African case: 'Calls are explicit'

Lawyers representing South Africa laid out their case on Thursday. They urged for the court to act to end Israel's war, and said Israeli leaders had been explicit in their calls for genocide.

"Israel's political leaders, military commanders, and persons holding official positions have systematically and in explicit terms declared their genocidal intent," lawyer Tembeka Ngcukaitobi told the judges.

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South Africa filed its case with the ICJ on 29 December, the latest in several shows of support from the country towards Palestinians since 7 October.

The filing has been backed by several countries across continents, including Brazil, Jordan, Turkey, Bolivia, and Venezuela. Belgium's deputy prime minister Petra De Sutter and the Spanish Sumar party, which is part of the governing coalition, have also expressed support.

AFP contributed to this report