Further Discussion of the South Africa Genocide Case Against Israel: Evaluating What the Court Might Do

Despite the Western media effort to downplay the South Africa case before the International Court of Justice charging Israel with violating the Genocide Convention, the action is still getting a fair bit of play. To recap, South Africa is seeking “provisional measures” to bar Israel from committing genocide while the Court considers a full case. We list these nine provisional measures at the end of the post. We have embedded the three key documents, the initial South Africa written filing, called in ICJ speak an “application”, the South Africa oral argument, and the Israel oral argument, in a separate post.

These “provisional measures”‘ are analogous to a temporary restraining order in the US context, to prevent imminent harm since a final decision would by (in this instance) years away. The ICJ is expected to issue its ruling in the next one to three weeks.

Despite the considerable commentary on this legal action, there seems a comparative dearth of discussion on how the court might rule and why. Mind you, it isn’t as if various commentators have not addressed considerable elements of the case, but I have yet to see an effort at a through treatment (admittedly a post from Lawfare comes close but does not consider some of the procedural questions, or the pressures on the judges). As a non-lawyer and a non-expert in this particular sort of dispute, I am relying on the input of others with domain knowledge, so further commentary welcome.

The very short version of what follows is:

The ICJ can reject the South Africa case, can accept it but not order provisional measures, can pick and choose among the provisional measures South Africa called for, can modify some or all of the suggested provisions measures or even implement its own.

Virtually all commentators have punted on the issue we focused on in our earlier post,1 that Israel had claimed there was a serious procedural problem with the South Africa action. Even though the Israel presentation of this issue was weak and screechy (in keeping with the caliber of its oral argument), a careful reading of the South Africa oral argument and its filing says Israel may indeed have a point. And if your humble blogger could find these deficiencies, the odds seem high an Israel-friendly jurist could too. There is a question, very much over my pay grade, as to whether South Africa could refile. The analogy to similar grounds for dismissal in Anglosphere cases suggests it should be able to, but that would considerably dent the credibility of South Africa (in terms of care in going about such a serious charge) and also delay any relief in Gaza.2

The supporters of the South Africa case contend it would damage the credibility of the court if it were to fail to implement any provisional measures. That is why Norman Finkelstein has suggested that one way for the court to compromise would be to order some but not all provisional measures. My belief is that the court will not be willing to impose the two provisional measures that amount to imposing a ceasefire on Israel. The court would seem hard-pressed to reject Israel’s contention that Hamas is not a party to the Genocide Convention, so to require only Israel to put down its arms would amount to inviting a full-bore Hamas onslaught.

As for the “prestige of the court,” sadly in our neoliberal world what is likely to matter more is the prestige of the individual judges in their home countries. And we are seeing loud arguments (admittedly here from a media organ that is in the can for Israel) that the “prestige of the court” arguments go against finding for South Africa. From the Economist in Charging Israel with genocide makes a mockery of the ICJ (hat tip furzy):

With its case, South Africa is making a mockery of the court. Genocide requires that Israel is killing people in Gaza simply for being Palestinian. In fact it is targeting Hamas fighters in response to a deadly attack on its territory. Some far-right Israeli politicians have used hateful language, but they are not articulating government policy. South Africa has called on the ICJ to impose a unilateral ceasefire on Israel, which would leave it unable to defend itself against Hamas, a terrorist group whose founding charter calls for the killing of Jews. By trying to hold Israel solely responsible for the death of Palestinians, it is vindicating Hamas’s tactic of fighting from schools and hospitals in the knowledge that the death of civilians killed in the crossfire will inflame global public opinion.

The icj [sic] is unlikely to offer a final ruling for years. South Africa’s case is so flimsy that it would be shocking if its final arguments convince the judges that Israel had committed genocide.

It is astonishing to see the depth of belief among Israel-defenders, even with orthodox outlets like CNN conceding in a headline last week Hundreds of thousands are starving in Gaza as famine arrives at ‘incredible speed,’ UN aid chief warns. But that view is likely to animate some of the ICJ jurists.

The other wee “prestige of the court” problem the ICJ has no enforcement powers. It would take UN action (which the US is sure to veto) or measures by states, individually or acting in concert.3 And Netanyahu has already said he’d defy any ICJ adverse ICJ decision.

Prejudices of and Pressures on the Judges

The fifteen regular judges for the ICJ now consist of representatives from four of the five permanent members of the Security Council, the US, China, Russia, and France, and eleven other judges, from Australia, Brazil, Germany, India, Jamaica, Japan, Lebanon, Morocco, Slovakia, Somalia, Uganda (see here; (Craig Murray mentions in passing that the General Assembly succeeding in replacing the UK ICJ judge with one from India was a Big Deal; it will be even more so if against the odds, South Africa gets any provisional measures approved; new judges must get a majority vote from both the Security Council and the UN as a whole) . They are joined by two ad hoc judges sworn in for this case, one from Israel and and one from South Africa (each party to a case has the right to appoint a judge if they do not already have a national representative on the panel). We will refrain from discussing the Israel ad hoc judge, Aharon Barak, save to point out that as an Israel Supreme Court judge, he has consistently treated everything the IDF said as gospel and has supported the defiance of past ICJ rulings. He could wind up being a small net plus for South Africa by overplaying his hand.

Deciding a question in favor of the plaintiff requires a majority. So an abstention is tantamount to a vote for Israel.

Norman Finkelstein, in counting noses before the hearing, argued that France was 50/50, and that Russia and China were unlikely to vote for South Africa. Finkelstein argued neither country would want to open the Genocide Convention can of worms (any ruling that lowered the bar could be turned against them). Russia has also been pointedly staying as far away as possible from the Gaza controversy, when they would have been expected to clear their throats by now and disapprove of Israel’s actions in Gaza. Remember that as Finkelstein put it, “Germany never met a genocide it didn’t like.” Germany was quick to say it would intervene in the case in support of Israel in the trial phase. Finkelstein also pointed out that Uganda always sides with Israel.

The odds of France siding with South Africa appear to have since dropped after the French Foreign Minister lambasted the South Africa case. From Middle East Monitor:

French Foreign Minister Stephane Sejourne has suggested that Paris may not accept the International Court of Justice (ICJ)’s ruling against Israel for genocide, because it “crosses a moral threshold”.

“To accuse the Jewish state of genocide is to cross a moral threshold,” Sejourne said. “The notion of genocide cannot be exploited for political ends. This has always been our position.”

Despite some criticism within the EU, there has been no walkback.

Before you contend that these ICJ judges are, or at least could be, independent, remember that they are not appointed for life, unlike US Federal Court judges. Judges whose terms expire in 2027 or 2030 are from Slovakia, France, Somalia, China, Uganda, India, Lebanon, Japan, Judge Georg Nolte Germany and Brazil. While some ICJ judges are re-elected, that is not a sure bet.

So all these judges, unless they plan to retire, have to assume they are going back to normal life in their home countries. You don’t have to go down the ex-CIA analyst Ray McGovern/Larry Johnson line of thinking, that the US will be out to alert any possible wrong-thinking judge of kompromat that could be made public. If any of these judges are in the Collective West power structure (and the ones in those countries have to be to get into the ICJ in the first place), the judges likely know well of how an unwelcome decision could cost them: children’s applications to elite schools rejected. A spouse in a professional services business (say law or consulting) sees his clients disappear.

Finkelstein underscored this idea in a later interview, the last in a four part series on the Connections Podcast on Jadaliyya, after both sides had made their oral arguments. At 19:10, he explained that pretty much every government had taken sides for or against Israel, and it would be very difficult for a judge to buck his government. Finkelstein discussed the case of Richard Goldstone, whose career was ruined when his 2009 report to the UN found both Israel and Palestine had committed war crimes.

Remember that was 2009. Cancel culture is much more open and vicious than it was then.

Craig Murray, one of the only 14 who secured a seat in the ICJ gallery to watch the hearings live, noted how uncomfortable the judges seemed and how eager they were when Israel brought up possible procedural escape hatches. From his write-up of South Africa”s oral argument:

The South African delegation was buoyant and mutually supporting, with a lot of inclusive body language and comparative animation. The Israeli delegation was the opposite of animated. It appeared severe and disdainful…

You would not think from the body language it was Israel that stands accused. In fact the only people in the court whose demeanour was particularly dodgy and guilty were the judges. They absolutely looked like they really did not want to be there. They seemed deeply uncomfortable, fidgeted and fumbled papers a lot, and seldom looked directly at the lawyers speaking.

It occurred to me that the people who really did not want to be in the Court at all were the judges, because it is in fact the judges and the Court itself on trial. The fact of genocide is incontrovertible and had been plainly set out. But several of the judges are desperate to find a way to please the USA and Israel and avoid countering the current Zionist narrative, the adoption of which is necessary to keep your feet comfortably under the table of the elite.

And from Murray’s second day write-up:

He [Malcolm Shaw] argued that South Africa could not bring this case and the ICJ had no jurisdiction, because there was no dispute between Israel and South Africa on which the ICJ could rule…

This very much interested the judges. As I noted on day one, this got them more active than anything else when Professor John Dugard addressed the same point for South Africa. As I reported:

The judges particularly enjoyed Dugard’s points, enthusiastically rustling through documents and underlining things. Dealing with thousands of dead children was a bit difficult for them, but give them a nice jurisdictional point and they were in their element.

They were even more excited when Shaw tackled the same point. This gave them a way out! The case could be technically invalid, and then they would neither have to upset the major Western powers nor make fools of themselves by pretending that a genocide the whole world had seen was not happening. For a while, they looked visibly relieved.

In other words, the prestige that is really at stake is that of the individual judges. And not in a good way.

The Court’s Key Choices

The South Africa filing and presentation was overwhelming in depicting the unprecedented level of civilian deaths in Gaza, the destruction of infrastructure and hospitals, food shortages approaching starvation, and the many statements by Israeli officials of their intent to eliminate Palestinians from Gaza. You would think there was no other side. And by comparison, the Israel oral arguments (they did not submit a written filing before the hearing) seemed shrill, of the “pound the table” school of lawyering, although if you read Israeli official statements, they use that register an awful lot.

However, as Murray pointed out above, many of the judges would be happier if they didn’t have to decide the case on its merits, but could use procedural problems to dodge this bullet. Israel raised two, and in my humble opinion, did a very lazy and sloppy on the one that is their best shot, the matter of whether South Africa had initiated a dispute before it went to court. Note that again as Murray made clear, judges very much like dealing with legal arguments, so there is good reason to think, as with judges in other court systems, these jurists make their own determination and will not rely merely on the arguments made by each party.

Even though this court is more akin to an arbitration panel than an Anglosphere court, and thus can be forgiving on matters of procedure, it has to be mindful of the requirements of the Genocide Convention in addition to the “dispute” requirement. Per Jus Mundi:

Generally, the requesting party must satisfy the following requirements (specific analysis and case law on each requirement is available via the below hyperlinked cross-references):

  1. prima facie jurisdiction of the tribunal;
  2. prima facie existence of a right susceptible of protection;
  3. necessity of the measure requested;
  4. urgency of the measure requested; and
  5. proportionality of the measure requested.

The South African side made a long and persuasive argument that the Genocide Convention imposed obligations on signatories to stop and prevent genocide, even if their country was not directly affected by it, and its lawyers marched point by point through the requirements of the Convention…except oddly proportionality.

One of Israel’s arguments amounted to “Yeah, even if you think we did something, you should be invoking a different body of law.” Lawfare discussed this notion with respect to the provisional measures that would require Israel to cease military operations, but IMHO Israel intended for it to apply generally:

This is the hole in South Africa’s case that makes an order to suspend military operations doubtful. South Africa condemned the Oct. 7 attacks and hostage taking by Hamas and other Palestinian armed groups, but it did not fully engage with the consequences of Hamas’s continuing military operations, including rocket barrages fired at Israel. It was almost as if South Africa had decided with its lawyers: Don’t mention the war. Israel by contrast talked of little else. And it spoke the legal language of war, otherwise known as international humanitarian law: precautions in attack, warnings, military targets, confronting human shielding, and legal assessments of proportionality.

South Africa was able to bring this case because of the compromissory clause in the Genocide Convention, which gives the ICJ jurisdiction to hear disputes between parties over the convention’s application. Israel, however, argued that it was IHL (the law of armed conflict) that was the appropriate law for regulating the conduct of hostilities—including hostilities with an enemy that itself flagrantly violated that law—and that provided the proper “framework for balancing military necessity with humanitarian considerations.”

In other words, Lawfare didn’t take Israel’s jurisdiction handwave seriously, but still concludes (as we surmised) that the court is extremely unlikely to order Israel to halt military operations in Gaza. The “proportionality” requirement in the Genocide Convention suffices.

Now to the dispute over the dispute.

As we warned in our earlier post, South Africa looks to have muffed the notification to Israel of a dispute under the Genocide Convention. And this is not based on Israel’s assertions, which amounts to a lame argument, “We never answered so there was no dispute.”

South Africa’s own documents suggest it did not tee this matter off properly. A reading of the footnotes in the “dispute” sections in both the original written filing and the oral argument who South Africa to have repeated misrepresented what the source documents said or stood for. This could be a serious own goal, since it would not have been hard for South Africa to have taken the extra say three weeks to properly notify Israel and giving them a deadline for replying before going to the ICJ. But the dire and worsening conditions in Gaza created time pressure.

If you read the footnotes, South Africa treats various statements by national leaders, mainly on Twitter or Facebook, sometimes to the press in their own countries, depicting Israel as conducting genocide as amounting to initiating a dispute. That does not tee off an action any more than do the many many statements to the media that China has been engaged in ethnic cleansing or even genocide against the Uighurs amount to an official action. In addition, none of the countries whose leaders used the G word with respect to Israel joined South Africa as co-filers of its application (although quite a few states later said they support South Africa’s application).

South Africa also cites several Notes Verbale it sent to Israel before it filed its application with the ICJ on December 29 as proof of a dispute. But those were all referrals to the ICC over allegations of various war crimes (you can click through from the link and read the underlying document), with only the very last including genocide. While all those other war crimes, such as ethnic cleansing, can serve to substantiate genocide, they are not in and of themselves genocide.

In addition, the ICC is not the ICJ. The ICC prosecutes individuals. From the ICC’s Understanding the International Criminal Court:

The International Criminal Court (“the ICC” or “the Court”) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression

It does not have the power to take action against states. The legal authority of the two bodies also differs. For instance, the ICC can issue arrest warrants while as we pointed out, the ICJ had no enforcement powers. Similarly, UN members can elect. So it is hard to fathom how a referral to the ICC, which could lead to action only against individuals, could be depicted as initiating action against a state.

South Africa claimed Israel had replied. From its oral argument:

By this time, the dispute had crystallized as a matter of law. This was confirmed by Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.142

However, if you use the link in Footnote 142 (https://www.gov.il/en/departments/general/swords-of-iron-faq-6-dec-2023), it goes to a Ministry of Foreign Affairs document, Hamas-Israel Conflict 2023: Frequently Asked Questions. Item 10, the last item, addresses “What is the response to the charge that a “genocide” is taking place in Gaza?”

FAQ is a format used for communicating with the media and the general public. I asked Aurelien about whether this sort of response could be considered to be a reply. Aurelien does have some knowledge of this area; as he noted, “although I was very deeply involved in the practical aspects of punishing atrocities at one point in my life, and even wrote a book about it.” He did point out that there is a lot of legal literature and substantial case law what it took for a matter to amount to a dispute for ICJ purposes. The bottom line is there seems to be no consensus. However, the matter of the “reply via FAQ”: is in a different category. His take:

In my experience such responses have no legal standing at all. They are just like answers to questions in an interview on TV.

South Africa does say it sent an additional Note Verbale on December 21 but that text was provided only to the judges so we cannot tell how it tried to finesse that the earlier complaints effectively had been about individuals, and not the State of Israel.4 South Africa filed its application a week and a day later, which IMHO is an insufficient amount of time for a substantive response. Even in the US on procedural matters, 10 to 15 days is the normal deadline in most jurisdictions for a reply.

Again, this is a very muddled area. But Aurelien’s bottom line, before I pointed out that that “reply’ was a mere FAQ,, a negative for South Africa, was that an “activist” bench could find for South Africa on the matter of whether this dispute actually had “crystallized”. Again from Aurelien: “I suppose it depends how brave the Court is feeling.”

I suspect the more likely determinant of which way the court goes on this issue is what would happen next if the ICJ were to determine that South Africa had not actually initiated a genocide dispute for its purposes. To a layperson, this sounds analogous to dismissing a case for improper service. That sort of dismissal is “without prejudice”, as in the plaintiff can try again. If the Court were to reject the filing on this basis, it would presumably have to articulate how South Africa fell short so it could reboot properly. This would certainly hurt South Africa’s credibility. Would it hurt the judges…more than they might worry if they found for South Africa? And if a refiling is possible, it would also mean the case likely back in their laps after more preliminary wrangling between Israel and South Africa. But then again, things could change in the meantime to reduce the pressure on the court….such as a lengthy ceasefire.

Other Options for the ICJ

We’ll cover this final topic quickly.

The ICJ could rule against all the requested provisional measures but allow the case to proceed on the normal dispute timetable, as in years. Aside from that course of action allowing Israel to continue its horrorshow in Gaza, remember also, unlike normal genocide disputes where one party is the alleged perp and the other the victim, Israel has a much better access to information, particularly now that Internet access has been repeatedly cut, journalists are an endangered species, and few (no?) NGOs and UN officials have access.

As we indicated above, the test of proportionality suggests the ICJ will not approve the requested provisional measures 1 and 2, to suspend formal and irregular military operations in Gaza. I suspect they will not approve of 3 (to prevent genocide) since that is an obligation under the Genocide Convention, to which Israel is already a signatory. Having its duties reaffirmed via a provisional measure is arguably prejudicial.

If we lived in a sane and humane world, it should be a no-brainer for the Court to implement the remaining provisional measures (with the removal of the word ‘desist” which Israel has complained is prejudicial) which call for Israel to provide humanitarian relief, stop killing Palestinians as members of the group, and (effectively) stop making Gaza uninhabitable. The other measures call for preservation of evidence, allow access by fact-finders, and submit regular reports to the ICJ. But requiring Israel to implement any provisional measures requires the ICJ to have determined that South Africa made a sufficiently strong case that Israel was engaged in genocide in Gaza. That is what quite a few ICJ judges really do not want to do.

So sadly the odds favor the ICJ punting, either via a procedural issue such as the one I outlined, or worse, a failure to get the needed votes on the merits of the case.

If that is the outcome, it will only confirm that there are two standards of justice in the world, one for white colonialists5 and another for everyone else.


1 This includes John Mearsheimer.

2 The ICJ has such a big history of hearing disputes that there are almost certainly procedural precedents. But none were in high-stakes cases like genocide.

3 I believe there are some measures that take effect automagically in certain states due to pre-existing law. Whether provisional measures would trigger them is again over my pay grade.

4> From the transcript of the oral argument:

However, as a matter of courtesy, before filing the present Application, on 21 December 2023, South Africa sent a Note Verbale to the Embassy of Israel to reiterate its view that Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State party to the Genocide Convention, was under an obligation to prevent genocide from being committed143. Israel responded by way of a Note Verbale that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute. This was emailed late on 27 December 2023, this Note Verbale was received by the relevant South African team on 29 December 2023 after the present Application was filed.

I am trying to avoid reliance on anything Israel has said, but my impression from the Israel whinging is that if a reply were made, the potential plaintiff needs either to address that, as in have some back and forth with the offending State before going to the ICJ and discuss that history, or alternatively, explain it its application why the reply confirmed that that there was an irrevocable dispute.

5 Who is white changes over time. The Irish in the US in the early 1900s were not white. Matt Stoller and Alastair Crooke, among others, maintain that (at least) Ashkenazi Jews are white.

South Africa’s requested provisional measures:

(1) The State of Israel shall immediately suspend its military operations in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above.

(3) The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.

(4) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
 (a) killing members of the group;
 (b) causing serious bodily or mental harm to the members of the group;
 (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
 (d) imposing measures intended to prevent births within the group.

(5) The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
 (a) the expulsion and forced displacement from their homes;
 (b) the deprivation of:
  (i) access to adequate food and water;
  (ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
  (iii) medical supplies and assistance; and
 (c) the destruction of Palestinian life in Gaza.

(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.

(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.

(8) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.

(9) The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve it.

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  1. JohnA

    Re ‘Germany was quick to say it would intervene in the case in support of Germany in the trial phase. Finkelstein also pointed out that Uganda always sides with Israel.’

    I take it you mean in support of Israel?

  2. PDB

    Yves, as always, thank you for your thorough work. I have to agree with Alexander Mercouris on this one. Back here in the states it simply will not matter. But then I also admit to being in the stick a fork in it camp since ’08.

  3. john r fiore

    It is clear to all thinking human beings, that without immediate intervention, by legal, economic or physical means, everyone in gaza may die…

  4. QABubba

    I maintain that it is the entirety of the West that is on trial. The whole Zionist enterprise and their supporters are on trial.
    The West is desperately trying to hang on to its authority. Irrespective of how the court rules, the world will judge whether the authority of the West is valid, or is not.
    The ruling of the ICJ may very well be ignored. Gaza and the West Bank may very well be ethnically cleansed.
    But it will be a loss for the West, irrespective of how the court rules.

  5. ciroc

    I am sure the ICJ judges are well aware of the risks involved in exonerating Israel. They would not want the definition of genocide to be “more serious than Gaza”. So I agree with the idea that the court will refuse to hear the case and insist that it has no jurisdiction.

    1. Yves Smith Post author

      That is not even remotely what the post said. Please do not straw man me. It predisposes me to deal with you harshly.

      I said the court could reject the case not on jurisdiction but on what we in the US call procedure, basically that South Africa had not properly initiated a dispute with Israel. That would make South Africa look bad (sloppy!). You seem to be using jurisdiction in the US sense. The court clearly has jurisdiction under the Genocide Convention. And the Genocide Convention clearly imposed a duty on states that are not parties to a conflict to prevent genocide. The question is if South Africa met the threshold conditions to file a case.

      It is over my pay grade, but I said I assumed South Africa could still reboot, so after delay, the case could move forward. By then, events might have changed, such as Israel agreeing to a long-ish ceasefire, which it could use to argue against the genocide charge.

  6. KD

    If I had to guess, I would imagine some kind of hand-wringing denial of provisional remedies but expressing concern about possible humanitarian consequences from the Gaza operations with a “stern” warning to Israel. After all, that’s been the line of the US officially, so it should be safe.

  7. Bryan

    From https://www.aljazeera.com/news/2023/11/17/does-israel-have-the-right-to-self-defence-in-gaza :

    Israel withdrew its forces from Gaza in 2005, but it has imposed a land, sea and air blockade on the enclave since Hamas came to power in 2007.

    That, according to Albanese, amounts to occupation – although Israel and its allies disagree with that assessment.

    “Israel does not claim it has been threatened by another state. It has been threatened by an armed group within an occupied territory. It cannot claim the right of self-defence against a threat that emanates from a territory it occupies, from a territory kept under belligerent occupation,” Albanese said.

    Albanese was referring to a 2004 advisory opinion by the International Court of Justice (ICJ), which said the construction of Israel’s separation wall in the occupied West Bank was illegal. The ICJ rejected the Israeli argument to build the wall, saying it could not invoke the right to self-defence in an occupied territory. (my emphasis)

    Why is this argument not sufficient to refute Israel’s argument that the law of armed conflict is the appropriate regulatory tool for its actions in Gaza? IOW If Israel has no right to self-defense from a threat emanating from a territory it unjustly occupies – a position the ICJ has previously taken in an advisory document – how can the IHL be argued to be the law of record here?

    1. Yves Smith Post author

      Please read the Israel oral argument. Israel did not discuss a right to self defense (as in a right to protect the state). Many Israel officials and defenders have made that argument in the press but that is not the angle they took in court. Israel argued for the need to protect its citizens, as in individuals. And they are outside the occupied territory.

  8. renard

    German judge Georg Nolte is the son of historian Ernst Nolte who played a key role in the so called Historikerstreit (Historians Dispute) in Germany:


    Of course we don’t know if and how this might play out.

    He has indeed worked for the german government before, for the Ministry Of Defense as well as on the advisory council of the Foreign Office. OTOH he will be 70 when his current term ends and might as well just retire. He got a high number of votes from both the GA and the SC when elected judge as well as when elected for the International Law Commission by the GA 10 years before which points to quite some reputation in the ‘Global South’ as well:


  9. Synoia

    The choice of South Africa appears to me to illustrate to the world that one can have several different Tribes and govern without excessive force.

    SA has 2 white tribes and a least 5 or 6 Africa African tribes(th9s is an estimate and is not accurate), within its boarders.

    And it settled its discrimination without a huge death toll.

    Thanh’s to Nelson Mandela and leadership, the ANC and Afrikaans National Party.

    As such this referral ti the Court by South Africa appears as a carefully, and rare, example of a careful example of settling issues in a country with several ethnic groups.

    1. CA

      Fine comment:

      ‘The choice of South Africa appears to me to illustrate to the world that one can have several different Tribes and govern without excessive force.

      SA has 2 white tribes and at least 5 or 6 African African tribes(this is an estimate and is not accurate), within its borders.

      And it settled its discrimination without a huge death toll.

      Thanh’s to Nelson Mandela and leadership, the ANC and Afrikaner National Party.

      As such this referral to the Court by South Africa appears as a careful, and rare, example of a careful example of settling issues in a country with several ethnic groups.’

  10. Carolinian

    All the fine print lawyering in the above merely illustrates why many people–perhaps including Will Shakespeare–have a kind of contempt for the profession. After all in countries such as ours it’s lawyers who make the law and fine print is a feature, not a bug. Those of us who have been on juries have heard their spiel about the sacred nobility of The Law even as they are ambulance chasing for a payday.

    Of course justice is a sacred concept and sometimes or even often justice and the law intersect in a kind of Venn diagram. But the flaws must be acknowledged and admitted.

    I saw an interesting article on why the Israelis didn’t choose an eager Dershowitz as their advocate and it suggested the Dersh’s fine printing on behalf of Epstein was an association not to be desired. So it seems when it comes to reputation winning isn’t the only thing, even if it was once the mantra of the Green Bay Packers.

    1. Carolinian

      Just to add my riff is about Lawfare, not Yves’ fine summary. One of my favorite shows was Better Call Saul which was a satire of the legal world while still mindful of the good side. Just saw in the trades that this remarkable show never won an Emmy. Was it too close to the moguls for comfort?

    2. Yves Smith Post author

      Actually you are misreading Shakespeare. “First, let’s kill all the lawyers” is to remove an impediment to a wannabe tyrant. The words are spoken by Dick the Butcher, loyal to anarchist Jack Cade, Shakespeare calls him “the head of an army of rabble and a demagogue pandering to the ignorant,” who wants to overthrow the government.

        1. Carolinian

          Hey even the rebel rabble can be right some of the time. But yes the Bard was pitching his plays to the aristocrats and even wanted to become one since he eventually acquired a coat of arms.

          One of my favorite movies is Olivier’s Henry V where a disguised Larry plays “a little bit of Harry in the night” and explains the burdens of kingship to Henry’s unwitting followers. Biden doubtless recites this passage while sitting around the campfire with Blinken and Sullivan.

      1. Not Qualified to Comment

        And Portia in ‘The Merchant of Venice’ having first and unsuccessfully appealed to Shylock’s general humanity (“The quality of Mercy…”) uses the law of contract to stymie his savage bargain – he is entitled under the law to his pound of flesh as long as he can take it without any blood to which he is not entitled under the contract.

        Interesting – appeals to Israel to show Mercy and humanity to the citizens of Gaza having been rejected, SA turns, Portia-like, to the strictures of International Law re genocide which could – I emphasis could – backfire badly against Israel even if in nothing worse than global opinion. The moral of TMoV is that if Shylock had shown the mercy Portia first asked of him he would not have suffered the swingeing penalty then imposed on him in consequence of his defeat at law.

  11. Dwight

    About the question of whether South Africa has established existence of dispute for purpose of jurisdiction, South Africa cited to this General Assembly debate on a humanitarian ceasefire resolution.


    The question is whether there was an exchange in a multilateral forum showing the existence of a dispute.

    Israel said Hamas is genocidal (somewhere between 1:05:00-1:13:00)
    South Africa said “The events of the past six weeks in Gaza have illustrated that Israel is acting contradictory to its obligations in therms of the Genocide Convention.” (1:17:20-1:17:35)
    Following this, many Western countries spoke by citing only to international humanitarian law, not the Genocide Convention. (Slovenia made a cryptic reference “Never again is now” but didn’t cite Genocide Convention.) German said it cannot endorse the text because it doesn’t condemn Hamas and sexual violence. Only Iran mentioned Genocide Convention, saying all member states have obligation to stop it (2:00:00). Syria accused Israel of genocide and ethnic cleansing.

    I don’t know if Israel had opportunity to speak again, or if that matters, but it seems clear to me that the accusation was made and not responded to that day or later. The UN News website linked above doesn’t include the bombshell accusation of South Africa in the summary, but how can such a bombshell accusation go unanswered and then it be claimed there is no dispute between the Contracting Parties as to whether Israel may be committing genocide? I think that it is not just Israeli silence that matters for purpose of Article 9 of the Genocide Convention, which speaks of “Disputes between the Contracting Parties” being submitted by any of the parties to the dispute. The dispute is not just between Israel and South Africa, it seems, but I’ll leave that to lawyers more experts to me.

    1. Yves Smith Post author

      I went to the link and the only mention of genocide is by the Egyptian ambassador. So this looks to be a misrepresentation of the record. Or perhaps South Africa provided the wrong link but that is very sloppy.

      South Africa also claimed that Israel had replied to the genocide dispute in its December 6 FAQ, so the dispute needed to be initiated before that to accept the South Africa timeline. The General Assembly debate referenced in the link you cited is December 12. So Israel would have needed to reply after December 12, yet South Africa did not cite any reply after that date.

      I found several instances in the written application and in the oral arguments where the South Africa statements were inconsistent with what their supporting documents said.

      1. Dwight

        The link I provided wasn’t given by South Africa – they just referred to the December 12 General Assembly in their application so I found this link.

        I listened to the video embedded in the above link and am citing from my notes made a few days ago, and providing timestamps based on the running time of that embedded Youtube video. I just confirmed South Africa’s statement which contains the above quote about Israel’s failure to meets its obligations under the Genocide Convention, from 1:17:22-1:17:33.

        As I said, the UN News summary in the link I provided is incomplete and I think it should have included South Africa’s bombshell accusation, which was newsworthy when made.

      2. Dwight

        Sorry, I should have been clearer that I’m referring to statements made in the YouTube video embedded in the UN News article I linked to. Footnote 40 of South Africa’s application cites to the same article, video, and statement by South Africa, with time stamp 1:13:37 where South Africa’s statement begins.

        It’s not clear that a subsequent response by Israel was required to establish that a dispute exists. It’s a substantive question, not one of procedural fairness. However, South Africa at footnote 43 cites Israel Ministry of Foreign Affairs statement of December 15, as follows: “Israel denies that its conduct in Gaza violates its obligations under the Genocide Convention, asserting that ‘[t]he accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant’ and ‘antisemitic’ https://www.idf.il/en/mini-sites/hamas-israel-war-23/all-articles/the-war-against-hamas-answering-your-most-

        In my inexpert opinion, Germany’s silence before South Africa’s application, and its intervention on Israel’s side after the application, also shows that there was a dispute at time of the application.

        1. Yves Smith Post author

          As I indicated, there is still a problem with the timeline. The only response that SA cites are the Dec 6 FAQ, which is before the Dec 12 UN session you tracked down, and then the Dec 21 Note Verbale, where Israel sent a timely but apparently hand-wavey response on December 27 and South Africa filed without having considered it.

          This is from Aurelien, who looked at a paper that discussed extensively what it took for a dispute to be a dispute before the ICJ:

          But note that all that is needed is that the sides have “clearly opposite views” based presumably on public statements. The Court has specifically said that in the case of genocide there is no requirement for a preliminary attempt to settle the dispute peacefully (as foreseen by Art 33 of the UN Charter, for example.) So the real issue is whether the statements by (and not necessarily exchanges between) SA and Israel before the ICJ hearing are sufficient to show that the sides held “clearly opposite views.” As you say, this seems a bit flaky, but the Court might decide that nonetheless, any reasonable person would conclude that the two states did, in fact, disagree on the issue.

          So it seems to me that, if it wanted to, the Court could argue that a point of law was involved (fulfillment of obligations under the Convention) and that the two countries held clearly different views, and that therefore the ICJ had the jurisdiction to decide who was right. Of course, how they would do that, and whether it’s even possible, are other questions.

          That said, what bothers me about this argument is that all of the cases mentioned in the paper (and all the ICJ cases I know of) have been about something which divides the two sides, who have a common interest in resolving the problem in their favour. The classics are things like boundary disputes, commercial disputes, reparations etc., where the two sides have an obvious practical interest in the facts of the situation. That’s not the case here, as far as I can see: there is no way in which SA can claim in the slightest degree to have a practical interest in whether genocide is occurring in Gaza. I think the SA team recognised this because they talk about the prevention of genocide being part of ius cogens, ie peremptory international legal norms, and all states having a responsibility to all other states (in this case, presumably Palestine.) The weakness of this argument of course, is that any state could accuse any other state of genocide, and argue that there was a dispute, and that the ICJ should make a ruling. The possibilities for mischief and chaos are endless. Whether the ICJ will want to go into this argument I have no idea.

          As a layman, my feeling is that an activist group of judges could, if they wanted to, find that there was a “dispute” between SA and Israel, and therefore that the case met the threshold test. I must admit that that wasn’t my initial impression, but looking at some of the language used in ICJ judgements, it seems to me that it is at least possible. I suppose it depends how brave the Court is feeling.

  12. Will

    >>>Now to the dispute over the dispute.

    With all due respect to Yves and commenters in previous posts, I do not believe the supposed procedural deficiencies are relevant. Whether there is a ‘dispute’ is a substantive question as acknowledged by the Israelis at page 25 paragraph 12 of their oral arguments. In making this statement, Israel relied on two prior ICJ cases, Gambia v Myanmar (2019) and Ukraine v Russia (2022) (see footnote 36). The first is most applicable as it, like with South Africa v Israel, involved a third party (Gambia) bringing an application to the ICJ in order to stop a genocide in Myanmar.

    In Gambia v Myanmer, the Court at paragraph 20 of its Provisional Measures Order said that for a dispute to exist States must:

    hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations. The claim of one party must be ‘positively opposed’ by the other. The Court cannot limit itself to noting that one of the parties maintains that a dispute exists, and the other denies it. [Citations omitted.]

    The Court found that the above requirements were met and a dispute existed between Gambia and Myanmar because (at paragraph 27):

    (1) during the general debate of the UN General Assembly, Gambia stated “it was ready to lead concerted efforts to take the Rohingya [genocide] issue to the International Court of Justice”, and

    (2) Myanmar responded two days later at the UN General Assembly rejecting any claims of genocide.

    As if to emphasize that this is a substantive issue, the Court, in the same paragraph, quoted from an earlier case in which it said:

    a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis [(pronounced with words)] . . . the position or the attitude of a party can be established by inference, whatever the professed view of that party

    No magic words, no procedural hoops. The Court will carefully examine all the facts to find if a dispute exists.

    After the above decision, Myanmar raised further objections that were addressed by the ICJ in its judgement of July 22, 2022. I’ll briefly go over the arguments there regarding the ‘dispute’ issue because I think it further highlights that the Court has declined to get lost in ‘procedural’ weeds.

    As summarized by the Court at paragraph 52, Myanmar made two further arguments about why a dispute didn’t exist between it and Gambia before Gambia brought its Application to the ICJ:

    [first] the applicant [Gambia] must have made a legal claim which the respondent was aware of or could not have been unaware of, and [second] the respondent must have positively opposed that legal claim in a manner which the applicant was aware of or could not have been unaware of. [Emphasis added.]

    With its first argument, Myanmar is trying to raise the bar and basically require Gambia to have served it with a legal brief before beginning proceedings with the ICJ. At paragraph 72 of its decision, the Court dealt with this argument by referring to earlier cases where it had decided States do not even have to refer to a specific treaty in exchanges before they later bring a case before the ICJ concerning that treaty. It’s only necessary that:

    the exchanges must refer to the subject-matter of the treaty with sufficient clarity to enable the State against which a claim is made to identify that there is, or may be, a dispute with regards to that subject-matter.

    As to the second argument, Myanmar was trying to require Gambia to have entered into direct communication with it in order for both States to have become ‘mutually aware’ of each other’s opposing views. Without such ‘mutual awareness’, Myanmar argued a dispute could not exist. Coincidentally, in this case too a Note Verbale featured in the defense as Myanmar never responded to one sent by Gambia. The lack of a response was cited as evidence of no dispute.

    The Court affirmed its earlier judgment that the respondent does not have to expressly oppose the views of the applicant in order to create a dispute. In other words, there was no requirement for Myanmar to have directly communicated its opposing view to Gambia. The Court only needed to find that the parties held clearly opposing views.

    [Otherwise,] a respondent could prevent a finding that a dispute exists by remaining silent in the face of an applicant’s legal claims. Such a consequence would be unacceptable…Consequently, the Court is of the view that the requirement of “mutual awareness” based on two explicitly opposed positions, as put forward by Myanmar, has no basis in law. [Paragraph 71]

    It was enough that Myanmar had publicly disputed that genocide was taking place for the Court to find that the States held opposing views and therefore a ‘dispute’ existed (see paragraph 73).

    I’ll speculate here and say that for the above reasons, Israel’s argument that there’s no dispute because it didn’t have enough time to respond to South Africa’s Note Verbale is also unpersuasive. Indeed, Israel seems to be arguing that a dispute can only exist if the States agree, after discussing the issue, that they can not resolve their differences. Or perhaps only if Israel gives up on those dicussions? Consider its argument at page 28 paragraph 25:

    South Africa decided unilaterally that a dispute existed, irrespective of Israel’s conciliatory and friendly response, since repeated. Perhaps had South Africa taken up this offer at the time proffered as a result of its own Note, the Parties may have decided there was no dispute as such to place before the Court under the Genocide Convention and that South Africa’s expressed concerns over the genocide allegation would have been assuaged. We may never know. South Africa’s precipitate institution of proceeding foreclosed that option.

    If Israel is allowed to succeed with its ‘procedural’ arguments, then that effectively kills the Genocide Convention. To forestall the weak tea of legal action before the ICJ, any future perpetrator of genocide only has to say, “lets talk things over, while I continue killing.”

    1. Yves Smith Post author

      Gambia referred not just to genocide but also an intent to apply to the ICJ: As you quoted, “it was ready to lead concerted efforts to take the Rohingya [genocide] issue to the International Court of Justice.” South Africa had alleged genocide repeatedly to Israel, via its Notes Verbale on the ICC referrals. Those are against individuals, not the state.

      See the later ICJ language you cited:

      the exchanges must refer to the subject-matter of the treaty with sufficient clarity to enable the State against which a claim is made to identify that there is, or may be, a dispute with regards to that subject-matter.

      Again, prior to December 21, all of the South Africa communiques to Israel were about criminal referrals as in against individuals, not the state. South Africa and other countries had also made many many complaints about Israel war crimes, such as collective punishment, but most were chary of using the G word in the UN (they were much freeer in press communiques but as Aurealien indicated, these do not carry any weight).

      So South Africa could have said it had a beef with Israel over its failure to prevent genocide, as in stop the bad acts of these (curiously unnamed individuals) in its ICC referral. That as I recall is the form of one of the key ICJ genocide rulings (Nicaragua?). But it did not do that.

      As indicated, I think Israel made a very lazy and sloppy presentation. But the (IIRC Nicaragua) precedent clearly shows the ICJ making a determination using a legal logic chain that was not based on either side’s claims.

      The point as Aurelien indicated is that the precedents are all over the map, but his reading of them collectively versus the debate in this instance is that the path of less resistance would be to find for Israel, not South Africa.

  13. NN Cassandra

    As was pointed out, US will block anything the court may order Israel to do, so it’s all performative. And I don’t think in this case procedural punt is such clever idea. It may look clever to the lawyers, but to everyone else saying you can continue genocide unabated because you claim you didn’t receive proper letter informing you anyone has problem with it, isn’t winning message and wont restore Global South faith in the Western led rules based order. It’s zugzwag (or what is the german word) and SA won just by forcing them to make move.

  14. David in Friday Harbor

    As a lawyer, I find this post to be a useful presentation and discussion of the various ways that this court could rule. However, given the broad spectrum of legal and political agendas represented by such a large and diverse panel of decision-makers, I find it unproductive to even attempt to game-out what is actually going to happen. There will be much to discuss soon.

    What I can say is that I find the evidence to be quite compelling that the State of Israel is intentionally as a matter of state policy engaging in conduct against civilian noncombatants in both Gaza and the West Bank which violates article 2 of the Genocide Convention, a treaty to which it is a party and over which the ICJ has jurisdiction.

    As reported today in Middle East Eye, U.S. intelligence sources have determined that the IDF has been largely ineffective at eradicating Hamas fighters. Instead, the vast majority of casualties have been noncombatants and children, while the heavy physical destruction has been of homes, schools, civil infrastructure, and hospitals rather than what might fairly and reasonably described as military installations. In the cases of Bosnia and Myanmar the ICJ has ruled such conduct genocide.

    The UN has already been shown to be impotent. The likely failure to act by the ICJ will be the nail in the coffin of international law that we have always known to be a hollow shell held together by the Cold War promise of nuclear annihilation. Any failure by the ICJ to take action will be the ultimate affirmation of the post-USSR “Might Makes Right” unipolar U.S. Rules-Based Order. Where the world goes from here is anyone’s guess.

    Meanwhile the death, destruction, and suffering of innocent Palestinians driven from their homeland by Zionist terrorism and of innocent Jews lured by false promises into the occupation of that intrinsically hostile environment continues unabated, funded by the U.S. Treasury.

  15. Willow

    Like ‘Princess Bride’ where both cups (outcomes) are poisoned for the West. Russia & China will be very happy if South Africa’s ICJ case fails on procedural grounds. It will be a stake in the heart of the ‘rules based order’.

    Commentators have been going on about de-dollarisation but the real risk for the US is a breakdown in Intellectual Property laws/enforcement. By pushing ICJ to side in Israel’s favour US would be burning down its own house. The Global South, largest global share of consumers, walking away (or choosing not to enforce) from global commercial treaties/law would generate huge economic losses for US & European corporates. Ignoring West’s IP rights a form colonial ‘repartitions’? One of the big upsides for Russia has been not paying US royalties/profits on IP.

  16. Revenant

    I don’t think you mean to write the odds have fallen that France will support RSA. That would mean it was more likely. I think you mean they have lengthened.

    Also, pre-1900 it was not the Irish geographically who were not “white”: in the Anglosphere, it was Catholics, even ones as pale as milk! Plenty of Anglo-Irish grandees in power but not so many Papists. Africa began at Rome etc. Certainly not Ashkenazim either. The admission of non protestants to the big tent is because the Anglosphere is now modelled after America rather than the UK and the former has been confessionally more diverse for longer.

  17. vidimi

    there will be lots of factors for the judges to consider, but the most important should be whether this is or is not a genocide. In my opinion, it is the most obvious genocide in my lifetime, but who know how the judges will see it. This matters because at some point, even in the West, the facts will become undeniable and, probably when all those who are in power are no longer there, it will be commemorated as a genocide. The true death toll is likely 3-4 times higher than what is officially reported and countless more will perish from bombs, pestilence, hunger, or just the elements.

    So what happens when Israel paves over Gaza, then does the same thing in the West Bank, and the Palestinian people just disappear with only a small diaspora of refugees alive around the world? Are you willing to be remembered for all of history as someone who made sure it would happen?

    I’m hoping there is still an ounce of humanity left in the world.

    1. Yves Smith Post author

      That is not how the judicial decision tree works. They first have to consider if the case belongs before them at all.

      Forgive me if I am not yet buzzword compatible with the ICJ version of legal-speak. In the US context, a case can be dismissed for a whole host of reasons that generally come before considering the substance of the argument: venue (in the US, typically, does it actually belong in this state’s court?), jurisdiction (both personal jurisdiction and subject matter jurisdiction), and depending on the rules of procedure, whether the claim is time-barred (some don’t allow that to be argued in the “motion to dismiss” phase).

      I have been calling the dispute over the dispute a procedural matter, since it’s an argument that has nothing to do with the factual case about whether Israel violated the Genocide Convention. It’s about whether South Africa took the steps required before it could bring the case to the court. However, it seems in ICJ speak they may call that a matter of jurisdiction. Experts please pipe up.

      So you may not like it, but the court will consider the “dispute” and any other jurisdiction questions first. And if it decides against South Africa, it won’t consider the rest of the case. As I indicated, intuitively this would resemble what we call a dismissal without prejudice in the US, that South Africa could refile the case once it had addressed the shortcomings the court identified.

      The fact that the court has not yet issued a ruling would point to it getting past those initial jurisdiction questions (as in finding for South Africa on them and then proceeding to the substantive issues) since one would think it could issue a thumb’s down on what we in the US call procedure pretty quickly.

  18. Telee

    The Biden administrations view has been clearly stated by Admiral John Kirby. He pointed out that there is no merit or factual basis for the South African charges. That should settle the matter.

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