On December 29, 2023, South Africa had filed the case with the International Court of Justice (ICJ) alleging that Israel is violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. South Africa contends that Israel has violated the Genocide Convention by committing genocide against Palestinians in Gaza, and by failing to prevent it, including by not holding senior Israeli officials and others accountable for their direct and public incitement to genocide. The case is not a criminal proceeding against individuals but seeks a legal determination of state responsibility for genocide.
The ICJ may take several years to reach a final verdict in the genocide case against Israel, which is why South Africa has requested the world’s highest court to order provisional measures to protect the Palestinian people in Gaza from further harm. South Africa has also sought Israel’s compliance with the Genocide Convention and attempted to safeguard its ability to have the case fairly adjudicated. South Africa has asked the ICJ to issue these measures “as a matter of extreme urgency”, arguing that Palestinians in Gaza are in “urgent and severe need of the Court’s protection”.
The ICJ is composed of 15 judges appointed for nine-year terms through separate, simultaneous elections at the UN General Assembly (UNGA) and the UN Security Council (UNSC). Any country can propose candidates but no two judges must come from one nation. At the moment, the bench includes judges from all parts of the world including France, Slovakia, Somalia and India’s Dalveer Bhandari — a former Supreme Court judge and Chief Justice of the Bombay High Court.
ICJ judges ought to be impartial and not act as extensions of their countries. In the past though, judges have voted in line with their countries’ politics. In 2022, when the bench voted in favour of the decision to order Russia out of Ukraine, judges from Russia and China were the only two who voted against the decision. Israel and South Africa can appoint one “ad hoc” judge each to join the bench since neither is represented. Aharon Barak, a former Supreme Court chief justice, is Israel’s choice. South Africa has appointed Dikgang Moseneke, a former deputy chief justice.
A full judgement from the ICJ, determining whether Israel has committed genocide in Gaza, will likely take years to emerge. The Hague-based court will give both parties time to build and submit more detailed arguments. Multiple hearings will follow. After that, the judges will take a vote, and then a final decision will be announced. ICJ judgements are legally binding and cannot be appealed. One issue though: The court has no real enforcement power. If Israel does not comply, South Africa can approach the UNSC for enforcement. But there, the US, Israel’s number one backer, has veto power as a permanent member. Washington could shield Israel from punishment, as it has done multiple times.
