South Africa v. Israel at the International Court of Justice

A Conversation on the Law of Genocide with Professor Willian A. Schabas

By: Aysha Khan (2L)Credit: Creative Commons

This article reflects the views of the author alone, not the International Human Rights Program, nor the Rights Review Editorial Board members.

On January 22, 2024, the IHRP hosted Professor William A. Schabas for a special conversation on the law of genocide and the ongoing International Court of Justice (ICJ) hearing, South Africa v. Israel. Dr. Schabas is a law professor at Middlesex University and Leiden University and is world-renowned in his expertise in human rights law, genocide, and the death penalty. 

Dr. Schabas began his conversation by sharing the historical context of the ICJ regarding violations of the Convention on the Prevention and Punishment of the Crime of Genocide, or the Genocide Convention. The Genocide Convention of 1948 sets a number of obligations on party states, requiring them to enact legislation that prevents genocide, punish those who have committed genocide, and cooperate in extradition charges, among other items. Article IX of the Convention lays out the compromissory clause that enables any contracting party to unilaterally bring a dispute to the ICJ relating to the interpretation, application, or fulfillment of the treaty. 

The first time a state brought a claim on the violation of genocide when they were not an injured party was in the case of The Gambia v. Myanmar. Gambia, on behalf of the 57 states that make up the Organization of Islamic Cooperation, claimed that Myanmar had breached its obligation under the Genocide Convention through its assault on the Rohingya Muslims. In support of Gambia, several Western European states and Canada filed an intervention seeking a larger, expansive, and liberal interpretation of the Genocide Convention. According to Article 63 of the Genocide Convention, these same intervening parties agree to be bound by the court’s ruling despite not being a direct party. The consequence of this intervention is pertinent to the current South Africa v. Israel case, where several of the same interveners – this time on the side of the respondent – may no longer be able to advocate instead for a continued narrow approach. 

Previous landmark judgements by the ICJ on claims relating to genocide have used strict interpretations of the Genocide Convention. In Bosnia and Herzegovina v. Serbia and Montenegro, the Court adopted the conclusions from the International Criminal Tribunal for the Former Yugoslavia that found instead of a “collective” responsibility, guilt for war crimes should be individualized. Accordingly, Serbia was only found guilty of failing to prevent genocide. 

Using this same framework, the Center for Constitutional Rights has brought a claim against U.S. President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin for failure to prevent genocide in Gaza. They argue that the U.S. has influence over the State of Israel to prevent genocide and is directly abetting its development with weapons, funds, and diplomatic cover. Dr. Schabas assisted in the case’s filing through a written declaration that found “there is a serious risk of genocide committed against the Palestinian population of Gaza and that the United States of America is in breach of its obligation [in the Genocide Convention].”

What happens next with South Africa v. Israel?

As predicted by Dr. Schabas, ICJ justices, in response to the filing by South Africa, recently made a provisional order. This first stage by the ICJ has a relatively low threshold – similar to an interim injunction that only requires a prima facie case to go forward. The provisional order is released soon after an initial filing and can vary from being a symbolic gesture to a set of demands, like in the case of Ukraine v. Russia, where Russia was required to immediately suspend military operations in the territory of Ukraine. 

The provisional measures, released on January 26, 2024, fell short of ordering an immediate ceasefire, but did trigger certain legal obligations. The following orders were directed at Israel by a majority of the justices: 

1. Israel shall take all measures within its power to prevent the commission of genocidal acts within the scope of Article II of the Convention, in relation to Palestinians in Gaza and take all measures within its power to prevent the commission of such acts, including the killing of Palestinians in Gaza and deliberately inflicting conditions of life calculated to bring about their physical destruction in whole or in part;
2. Israel shall ensure with immediate effect that its military does not commit genocidal acts;
3. Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to Palestinians in Gaza;
4. Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the humanitarian crisis in Gaza;
5. Israel shall take effective measures to prevent the destruction of evidence related to allegations of genocidal acts against Palestinians in Gaza; and
6. Israel shall report to the Court within a month on all measures it has taken to enforce the provisional measures.

The second stage at the ICJ will involve a review of the admissibility and jurisdiction of the case. South Africa has six to eight months to submit a full application with more extensive analyses. In turn, Israel will have three months to make their objections. 

Whether the Court will take a broader interpretation of the Genocide Convention remains unclear. Dr. Schabas stated that in the past, the Court has made a distinction between measures intended to physically exterminate a group and measures to expel a group from a territory. Historically, the latter has not constituted as genocide. This has since been criticized by countries like Canada for its narrow interpretation. However, the same countries that advocate for a broader interpretation, by doing so, may expose themselves to potential violations of the Convention.    

Dr. Schabas ended with a salient point about the significance of South Africa’s decision to bring a claim to the ICJ on behalf of Palestine. After decades of international condemnation in their apartheid era, South Africa returns to the international arena – full circle – bringing their once-ally and lone friend to trial for claims they previously faced themselves.