What will come of South Africa’s ICJ initiatives?
In the six months since 7 October, South Africa has made vigorous use of the international legal mechanisms designed to stop violations of international law, particularly violations of international humanitarian law. South Africa’s bold initiatives in taking Israel to court over its ongoing atrocities in Gaza have impressed even hardened cynics. The cases present an opportunity for South Africa, as a member of the Global South, to assert itself not only against Israel but against the West.
I, for one, used to be very cynical about the efficiency of international courts, particularly the International Court of Justice (ICJ). Designed to adjudicate disputes between states that have consented to the court’s jurisdiction, the court is known for being conservative, slow and for not having teeth. One needs to look no further than the court’s 2004 Advisory Opinion on the Legality of the (separation) Wall to realise that Israel would most likely ignore the court’s ruling.
But the genius of the provisional measures case South Africa brought at the end of December is that it is used the one mechanism that could provide immediate relief. In theory, at least, the court was in a position to order an immediate ceasefire. Given the unbreakable deadlock in the Security Council, this would have been as close as any international body could get to make a statement of that kind. Alas the court did not order a ceasefire. It ordered a string of other provisional measures requesting a cessation of military action that caused physical and mental harm approximating genocide. It was entirely predictable that Israel would violate the provisional measures. When it became clear that Israel was determined to continue its genocidal killing of civilians, South Africa again approached the court for additional measures. The rules of the court allow a state to follow up after an initial ruling and ask for further measures. To date, South Africa has returned to the court twice and essentially implored the court to do more than reiterate that ‘Israel remains bound to fully comply with its obligations under the Genocide Convention.’
South Africa’s resort to legal mechanisms extends beyond the provisional measures case. South Africa referred Israel to the ICC in December 2023. And South Africa was vocal and eloquent in its presentation to the ICJ in the February case on the legal consequences of Israel’s illegal occupation of Palestine. South Africa, like other African countries, focused on the violation of the 1973 Apartheid Convention. South Africa was one of 52 countries presenting arguments to the court. The two cases are not directly linked but the fact that the cases were heard cheek-by-jowl strengthened their impact. One of the most powerful resources in South Africa’s legal arsenal was the presence of Prof. John Dugard, veteran anti-apartheid academic and former UN Special Rapporteur on the Occupied Palestinian Territories.
The ICJ advisory opinion on Israel’s occupation of Palestine is expected before July 2024, long before the outcome of the case on the Genocide Convention. By the time that judgement is rendered Palestine will look very different.
Many will argue that expectations should be managed since courts can only go so far. Nothing about the track record of international courts and tribunals since their revival in the 1990’s tells us that they constitute effective ways of stopping ongoing conflict. They simply do not have significant deterrent value. The Srebernica massacre of July 1995, for example, famously took place after the creation of the Yugoslavia Tribunal.
Yet South Africa’s initiatives have changed the landscape of international criminal law. It has forced a staid, reticent and conservative court to confront Israel’s atrocities head on. Aside from the reputational damage suffered by Israel, the ICJ ruling on provisional measures accomplished at least two powerful things. First, the ruling boldly puts the G word out there, the word that no one wants to associate with Israel in any other sense than in the context of the Holocaust. Much of the West’s continued support for Israel translates into an unwillingness to use the word’ genocide’. The ICJ case breaks through that psychological barrier. Second, the ICJ ruling also makes it very difficult for those that want to deny the genocide. And over the course of the next years South Africa will be bringing more and more evidence of genocide for the court to consider in the case on the merits. If the ruling achieved these two things only it would be a breakthrough in itself. And it would not have happened but for a brave and slightly maverick move from South Africa.
- Visiting Professor
- University of the Witwatersrand
What will come of South Africa’s ICJ initiatives?
In the six months since 7 October, South Africa has made vigorous use of the international legal mechanisms designed to stop violations of international law, particularly violations of international humanitarian law. South Africa’s bold initiatives in taking Israel to court over its ongoing atrocities in Gaza have impressed even hardened cynics. The cases present an opportunity for South Africa, as a member of the Global South, to assert itself not only against Israel but against the West.
I, for one, used to be very cynical about the efficiency of international courts, particularly the International Court of Justice (ICJ). Designed to adjudicate disputes between states that have consented to the court’s jurisdiction, the court is known for being conservative, slow and for not having teeth. One needs to look no further than the court’s 2004 Advisory Opinion on the Legality of the (separation) Wall to realise that Israel would most likely ignore the court’s ruling.
But the genius of the provisional measures case South Africa brought at the end of December is that it is used the one mechanism that could provide immediate relief. In theory, at least, the court was in a position to order an immediate ceasefire. Given the unbreakable deadlock in the Security Council, this would have been as close as any international body could get to make a statement of that kind. Alas the court did not order a ceasefire. It ordered a string of other provisional measures requesting a cessation of military action that caused physical and mental harm approximating genocide. It was entirely predictable that Israel would violate the provisional measures. When it became clear that Israel was determined to continue its genocidal killing of civilians, South Africa again approached the court for additional measures. The rules of the court allow a state to follow up after an initial ruling and ask for further measures. To date, South Africa has returned to the court twice and essentially implored the court to do more than reiterate that ‘Israel remains bound to fully comply with its obligations under the Genocide Convention.’
South Africa’s resort to legal mechanisms extends beyond the provisional measures case. South Africa referred Israel to the ICC in December 2023. And South Africa was vocal and eloquent in its presentation to the ICJ in the February case on the legal consequences of Israel’s illegal occupation of Palestine. South Africa, like other African countries, focused on the violation of the 1973 Apartheid Convention. South Africa was one of 52 countries presenting arguments to the court. The two cases are not directly linked but the fact that the cases were heard cheek-by-jowl strengthened their impact. One of the most powerful resources in South Africa’s legal arsenal was the presence of Prof. John Dugard, veteran anti-apartheid academic and former UN Special Rapporteur on the Occupied Palestinian Territories.
The ICJ advisory opinion on Israel’s occupation of Palestine is expected before July 2024, long before the outcome of the case on the Genocide Convention. By the time that judgement is rendered Palestine will look very different.
Many will argue that expectations should be managed since courts can only go so far. Nothing about the track record of international courts and tribunals since their revival in the 1990’s tells us that they constitute effective ways of stopping ongoing conflict. They simply do not have significant deterrent value. The Srebernica massacre of July 1995, for example, famously took place after the creation of the Yugoslavia Tribunal.
Yet South Africa’s initiatives have changed the landscape of international criminal law. It has forced a staid, reticent and conservative court to confront Israel’s atrocities head on. Aside from the reputational damage suffered by Israel, the ICJ ruling on provisional measures accomplished at least two powerful things. First, the ruling boldly puts the G word out there, the word that no one wants to associate with Israel in any other sense than in the context of the Holocaust. Much of the West’s continued support for Israel translates into an unwillingness to use the word’ genocide’. The ICJ case breaks through that psychological barrier. Second, the ICJ ruling also makes it very difficult for those that want to deny the genocide. And over the course of the next years South Africa will be bringing more and more evidence of genocide for the court to consider in the case on the merits. If the ruling achieved these two things only it would be a breakthrough in itself. And it would not have happened but for a brave and slightly maverick move from South Africa.
- Visiting Professor
- University of the Witwatersrand
What will come of South Africa’s ICJ initiatives?
In the six months since 7 October, South Africa has made vigorous use of the international legal mechanisms designed to stop violations of international law, particularly violations of international humanitarian law. South Africa’s bold initiatives in taking Israel to court over its ongoing atrocities in Gaza have impressed even hardened cynics. The cases present an opportunity for South Africa, as a member of the Global South, to assert itself not only against Israel but against the West.
I, for one, used to be very cynical about the efficiency of international courts, particularly the International Court of Justice (ICJ). Designed to adjudicate disputes between states that have consented to the court’s jurisdiction, the court is known for being conservative, slow and for not having teeth. One needs to look no further than the court’s 2004 Advisory Opinion on the Legality of the (separation) Wall to realise that Israel would most likely ignore the court’s ruling.
But the genius of the provisional measures case South Africa brought at the end of December is that it is used the one mechanism that could provide immediate relief. In theory, at least, the court was in a position to order an immediate ceasefire. Given the unbreakable deadlock in the Security Council, this would have been as close as any international body could get to make a statement of that kind. Alas the court did not order a ceasefire. It ordered a string of other provisional measures requesting a cessation of military action that caused physical and mental harm approximating genocide. It was entirely predictable that Israel would violate the provisional measures. When it became clear that Israel was determined to continue its genocidal killing of civilians, South Africa again approached the court for additional measures. The rules of the court allow a state to follow up after an initial ruling and ask for further measures. To date, South Africa has returned to the court twice and essentially implored the court to do more than reiterate that ‘Israel remains bound to fully comply with its obligations under the Genocide Convention.’
South Africa’s resort to legal mechanisms extends beyond the provisional measures case. South Africa referred Israel to the ICC in December 2023. And South Africa was vocal and eloquent in its presentation to the ICJ in the February case on the legal consequences of Israel’s illegal occupation of Palestine. South Africa, like other African countries, focused on the violation of the 1973 Apartheid Convention. South Africa was one of 52 countries presenting arguments to the court. The two cases are not directly linked but the fact that the cases were heard cheek-by-jowl strengthened their impact. One of the most powerful resources in South Africa’s legal arsenal was the presence of Prof. John Dugard, veteran anti-apartheid academic and former UN Special Rapporteur on the Occupied Palestinian Territories.
The ICJ advisory opinion on Israel’s occupation of Palestine is expected before July 2024, long before the outcome of the case on the Genocide Convention. By the time that judgement is rendered Palestine will look very different.
Many will argue that expectations should be managed since courts can only go so far. Nothing about the track record of international courts and tribunals since their revival in the 1990’s tells us that they constitute effective ways of stopping ongoing conflict. They simply do not have significant deterrent value. The Srebernica massacre of July 1995, for example, famously took place after the creation of the Yugoslavia Tribunal.
Yet South Africa’s initiatives have changed the landscape of international criminal law. It has forced a staid, reticent and conservative court to confront Israel’s atrocities head on. Aside from the reputational damage suffered by Israel, the ICJ ruling on provisional measures accomplished at least two powerful things. First, the ruling boldly puts the G word out there, the word that no one wants to associate with Israel in any other sense than in the context of the Holocaust. Much of the West’s continued support for Israel translates into an unwillingness to use the word’ genocide’. The ICJ case breaks through that psychological barrier. Second, the ICJ ruling also makes it very difficult for those that want to deny the genocide. And over the course of the next years South Africa will be bringing more and more evidence of genocide for the court to consider in the case on the merits. If the ruling achieved these two things only it would be a breakthrough in itself. And it would not have happened but for a brave and slightly maverick move from South Africa.
- Visiting Professor
- University of the Witwatersrand
What will come of South Africa’s ICJ initiatives?
In the six months since 7 October, South Africa has made vigorous use of the international legal mechanisms designed to stop violations of international law, particularly violations of international humanitarian law. South Africa’s bold initiatives in taking Israel to court over its ongoing atrocities in Gaza have impressed even hardened cynics. The cases present an opportunity for South Africa, as a member of the Global South, to assert itself not only against Israel but against the West.
I, for one, used to be very cynical about the efficiency of international courts, particularly the International Court of Justice (ICJ). Designed to adjudicate disputes between states that have consented to the court’s jurisdiction, the court is known for being conservative, slow and for not having teeth. One needs to look no further than the court’s 2004 Advisory Opinion on the Legality of the (separation) Wall to realise that Israel would most likely ignore the court’s ruling.
But the genius of the provisional measures case South Africa brought at the end of December is that it is used the one mechanism that could provide immediate relief. In theory, at least, the court was in a position to order an immediate ceasefire. Given the unbreakable deadlock in the Security Council, this would have been as close as any international body could get to make a statement of that kind. Alas the court did not order a ceasefire. It ordered a string of other provisional measures requesting a cessation of military action that caused physical and mental harm approximating genocide. It was entirely predictable that Israel would violate the provisional measures. When it became clear that Israel was determined to continue its genocidal killing of civilians, South Africa again approached the court for additional measures. The rules of the court allow a state to follow up after an initial ruling and ask for further measures. To date, South Africa has returned to the court twice and essentially implored the court to do more than reiterate that ‘Israel remains bound to fully comply with its obligations under the Genocide Convention.’
South Africa’s resort to legal mechanisms extends beyond the provisional measures case. South Africa referred Israel to the ICC in December 2023. And South Africa was vocal and eloquent in its presentation to the ICJ in the February case on the legal consequences of Israel’s illegal occupation of Palestine. South Africa, like other African countries, focused on the violation of the 1973 Apartheid Convention. South Africa was one of 52 countries presenting arguments to the court. The two cases are not directly linked but the fact that the cases were heard cheek-by-jowl strengthened their impact. One of the most powerful resources in South Africa’s legal arsenal was the presence of Prof. John Dugard, veteran anti-apartheid academic and former UN Special Rapporteur on the Occupied Palestinian Territories.
The ICJ advisory opinion on Israel’s occupation of Palestine is expected before July 2024, long before the outcome of the case on the Genocide Convention. By the time that judgement is rendered Palestine will look very different.
Many will argue that expectations should be managed since courts can only go so far. Nothing about the track record of international courts and tribunals since their revival in the 1990’s tells us that they constitute effective ways of stopping ongoing conflict. They simply do not have significant deterrent value. The Srebernica massacre of July 1995, for example, famously took place after the creation of the Yugoslavia Tribunal.
Yet South Africa’s initiatives have changed the landscape of international criminal law. It has forced a staid, reticent and conservative court to confront Israel’s atrocities head on. Aside from the reputational damage suffered by Israel, the ICJ ruling on provisional measures accomplished at least two powerful things. First, the ruling boldly puts the G word out there, the word that no one wants to associate with Israel in any other sense than in the context of the Holocaust. Much of the West’s continued support for Israel translates into an unwillingness to use the word’ genocide’. The ICJ case breaks through that psychological barrier. Second, the ICJ ruling also makes it very difficult for those that want to deny the genocide. And over the course of the next years South Africa will be bringing more and more evidence of genocide for the court to consider in the case on the merits. If the ruling achieved these two things only it would be a breakthrough in itself. And it would not have happened but for a brave and slightly maverick move from South Africa.
- Visiting Professor
- University of the Witwatersrand
