To Stop Israel’s Genocide in Gaza and Save International Law, Support South Africa’s ICJ case

Icj Policy Brief

Palestinian Anti-Apartheid Movement (PAAM) – URGENT Policy Brief (18 January 2024)

On 29 December 2023, South Africa made history. It submitted an application to the ICJ under the Genocide Convention accusing Israel of perpetrating genocide against the 2.3 million Palestinians in the occupied and besieged Gaza Strip and requested provisional measures that include a ceasefire and lifting of the blockade. The World Court is expected to decide on the requested measures within days, while deliberations on the merit of the genocide charges against Israel will likely take many months. 

To stop Israel’s Gaza genocide and salvage the credibility of international law, we need to maximize pressure on states (parliaments and governments) to:

(1) Unequivocally support South Africa’s ICJ application. Short of fulfilling this legal and moral obligation, states must be pressured to adopt the “Irish option” of supporting provisional measures, particularly a permanent ceasefire and lifting the siege. If even that is not feasible, then at the very least states must be pushed to take the weak “French option” of declaring full support for the ICJ and its rulings and non-interference in its deliberations and decision-making process; it is better than silence. 

(2) Establish a special tribunal for Gaza, as called for by UN officials, and enact universal jurisdiction to hold Israeli war criminals to account, given the complicity of the ICC Prosecutor, and impose lawful and proportional sanctions, starting with comprehensive military embargoes and expelling Israel from international fora (UNGA, International Olympic Committee, FIFA, etc.).

Supporting South Africa’s case is extremely urgent. Famine and infectious diseases are spreading in Gaza due to Israel’s deadly siege and relentless bombing. UN human rights experts warn that all Gaza Palestinians, half of them children, are hungry and over half a million are “starving.” In a new statement reiterating charges of genocide and domicide against Israel, they said: “It is unprecedented to make an entire civilian population go hungry this completely and quickly. Israel is destroying Gaza’s food system and using food as a weapon against the Palestinian people.”

According to experts, South Africa has presented a very strong legal – and moral – case that establishes the plausibility of the genocide charge against Israel, which is all that is currently needed for the ICJ to order provisional measures. These measures apply whether Israel is committing, intends to commit or incites to the commission of genocide. 

The impressive number of UN and legal experts, human rights organizations, and leading genocide scholars that have warned of Israel’s unfolding genocide in Gaza increases the chances of a positive ruling on provisional measures. As prominent international law scholar Mohsen al Attar puts it, “The ICJ faces a stark choice: find in favour of South Africa and indicate provisional measures or damn international law into oblivion.”

As recent developments have shown, the longer Israel continues with its genocide in Gaza, enabled by the US and other Western powers, the higher the risks will be of a full-fledged armed conflict engulfing the West Asia region–one of the world’s most geostrategically sensitive parts. 

The Organization of Islamic Cooperation (OIC) and the Arab League, together representing 57 states, have supported South Africa’s application to the ICJ, as have more than 20 states, mostly from the Global South. Tens of UN human rights experts have welcomed South Africa’s ICJ application saying, “ICJ decisions are final, binding, and not subject to appeal. Adherence to any order the Court may make by the parties involved is imperative for protecting the rights of Palestinians and reinforcing the primacy of international law.” 

Reinforcing “the primacy of international law” at a time when Israel’s Western-enabled, live-streamed genocide is reducing it “to tatters,” as Ireland’s president puts it, has never been as urgent. Cognizant of that, several states, while not supporting the genocide charge against Israel, have strongly expressed confidence in the ICJ and respect for its decisions, hinting that they oppose any interference in its work.  

Expectedly, genocide denial and attacks on South Africa’s case have come mainly from colonial Western states, led by the US. A former Portuguese secretary of state has commented on the shameless role of the US saying, “No one could accuse the U.S. of double standards. What it is vulnerable to is the accusation that it no longer has any standards at all.” Following Israel’s ICJ defense, dismissed by legal scholars and human rights experts as propaganda-heavy, legally wanting, and riddled with lies, Germany announced it will intervene on Israel’s side. Shaming Germany’s complicity, Namibia has said, “Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza.”

Strong support for the South African case before the ICJ has come from Bosnian survivors of genocide. They wrote: “As survivors of the Bosnian Genocide and War who have witnessed the devastating consequences of inaction, your support is crucial in urging the ICJ to act decisively to protect Palestinians in Gaza.” 

Based on the massive public record of Israel’s genocidal acts and its leaders’ unambiguous expressions of genocidal intent, and in light of the emerging well-resourced facts that refute much of the propaganda desperately deployed by Israel to justify its unjustifiable genocide, the court of public opinion already sees Israel as guilty of genocide. This changes everything. 

South Africa’s ICJ case against Israel’s US-enabled genocide will be remembered, says international law scholar Saul Takahashi, as “the first step towards finally holding a rogue state accountable for repeated, longstanding violations of international law; or as the last, dying breath of a dysfunctional, Western-led international system.”