An international law expert explains why South Africa’s case at the ICJ is so important

South Africa and Israel will be appearing before the International Court of Justice, on Thursday, January 11, where the court will begin hearing arguments on whether Israel is committing the crime of Genocide.

The highly anticipated public hearings, which will last for two days, are based on an 84-page appeal submitted by South Africa in December to the ICJ, the top judicial body of the United Nations. In the appeal, South Africa argues that Israel’s military campaign in Gaza is “genocidal in character” and that through both action and intent to commit genocide, Israel has violated the 1948 Genocide Convention.

Both Israel and South Africa are parties to the convention, which came into being on the heels of World War II and the Holocaust. All signatories of the treaty are obligated not to commit genocide, to ensure that it is prevented, and to seek that the crime be prosecuted. 

South Africa’s appeal to the ICJ, however, is not just about charging Israel with the crime of genocide – a lengthy process that could take the court months or years. It’s also seeking a more immediate solution by requesting the court institute provisional measures to immediately halt Israel’s military campaign in Gaza.

Essentially, South Africa wants two things: to stop the mass killing of Palestinians in Gaza now and for Israel to be charged with the crime of genocide in the long term. A condensed breakdown and explanation of the 84-page brief can be found here.

Expectedly, Israel has outright denied any accusations of genocide, lambasting the South African appeal as antisemtic “blood libel”. The U.S. has also rebuked South Africa’s appeal, called it “meritless” and “completely without any basis in fact.”

Nevertheless, Israel is pressing forward, sending a carefully crafted legal team to The Hague in the Netherlands to defend Israel’s position that it is not committing genocide in Gaza. 

The much-talked about public proceedings, which will take place over the course of two days on Thursday and Friday, January 11th and 12th, are being welcomed by both Palestinians, as well as a number of countries around the world, who have thus far failed to bring about a ceasefire, primarily due to the U.S. veto of UN resolutions calling for a halt to the violence. 

Despite the international buzz and anticipation, many in Palestine and around the world remain skeptical as to how much weight an ICJ ruling against Israel could hold due to a long history of Israeli impunity on the global stage and Israel’s well-documented disregard for international law and human rights norms. 

Still, many Palestinian international law experts and human rights groups say the ICJ proceedings are significant and could hold serious consequences not only for Israel and Palestine but for the world.

Among them is Dr. Munir Nuseibah, a Palestinian professor of International law at Al-Quds University and the Director of the Al-Quds Human Rights Clinic. Mondoweiss spoke to Dr. Nuseibah about the significance of this case, why people should pay attention to it, and what implications it holds. 

Why does this case matter?

The case filed by South Africa is important for a number of reasons. First, Dr. Nuseibah notes, the fact that it was filed at the ICJ in and of itself is significant, being that the court is the highest judicial body that settles disputes between states. 

“This is quite significant because it’s… based on an agreement, or treaty that is binding to both South Africa and Israel,” he said, referring to the 1948 Genocide Convention. 

“This is important in the history of the Palestinian cause, since we haven’t had an opportunity to get a binding international decision on any of the important questions that we have been dealing with, including for example, the issue of the Palestinian refugees, the [Israeli] occupation, etc,” Dr. Nuseibah continued.

The last time the ICJ made a decision in relation to Palestine was a 2004 advisory opinion that found Israel’s separation wall, which at that stage was still early on in its construction, violated international law and should be torn down.

However, because that decision was a non-binding advisory opinion, Israel was not obligated to stop construction or take down the wall. Instead, Israel continued constructing the wall, which today spans across hundreds of kilometers, cutting off Palestinians from their land and swallowing up swaths of Palestinian territory. 

This case, Dr. Nuseibah says, would be different, as the resulting decision from this week’s proceedings would be binding, and if the court rules in favor of South Africa, it would mean that under international law, Israel would be obligated to end its military campaign in Gaza in the short term, and in the long term, potentially provide material reparations to the victims of its genocide. 

The case is also significant as a symbolic measure as well. That, in the face of an ongoing genocide, which has been well documented by Palestinians and international human rights organizations alike, the world must intervene to stop it. 

“If there is no serious intervention, and if the United Nations, the world, and what we call the international community is going to continue to be silenced and made inactive, and in a certain way deactivated and demobilized, this horror will continue,” Dr. Nusaibah said, not just in Palestine but around the world.  

“To not only be accused of genocide, but to be charged by the court, and to be seen as a country guilty of genocide is very important,” he said. “In my opinion, everything that happens in the International Court of Justice now, is likely to influence thousands of lives in the future. 

So whatever these judges will decide will actually be a question of life and death for many, many Palestinians.”

What will South Africa be arguing on Thursday?

The crux of South Africa’s argument is that Israel is committing genocide in Gaza and that it is violating its obligations under the 1948 Convention on the Prevention and Punishment of Genocide, which defines the crime as “acts intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.” 

South Africa’s argument hinges on proving that Israel is not only committing acts of genocide in Gaza but that there is a clear intent on Israel’s part to commit genocide – the latter being a significant focus of the 84-page brief, which listed off an array of quotes from Israeli politicians, officials, and public figures using genocidal language when speaking about Israel’s campaign in Gaza. 

“[South Africa’s] first argument will involve the speeches and quotes basically from Israeli officials who have been using genocidal language from the very first day actually, from October 7th,” Dr. Nuseibah said. 

“In criminal law it’s not enough to do something, but you have to intend to do something. And one of the signs of intent, are the things you say. So these quotes from Israeli officials will be used to show that Israel has been calling for genocide,” he continued. 

And, of course, South Africa will be providing evidence of what it says are clear genocidal acts carried out by Israel in Gaza, such as “bombing civilians, heavily targeting homes, targeting hospitals, targeting cultural centers, targeting universities, schools, etc,” Dr. Nuseibah detailed. 

“So all of these targets that the Israeli army has destroyed over the past months, and of course the civilian casualties, the human beings who have been murdered or injured or made disabled, [Israel] using hunger as a weapon, etc. – all of that will be a very important part of the facts South Africa will present,” he said, adding that the denial of fuel and electricity, the siege on 2 million civilians, and the forcible displacement of Palestinians in Gaza is also “an important element of genocide and especially in this case.”

What will Israel’s legal defense look like?

While there are 84 pages to give us an insight into South Africa’s case, it’s not as apparent what exactly Israel’s defense will consist of.

If the past few months have been any indication, however, during which Israel has denied any wrongdoing in Gaza, justified it as self-defense, and has actually accused Hamas of genocide for its October 7th attack – some assumptions can be made as to how Israel will approach it’s defense.

First, Israel’s primary strategy, Dr. Nuseibah says, will be to “deny, deny, deny.”

“Israel will deny everything that South Africa claims,” Dr. Nuseibah said. “It will deny that it has starved people, or that it is trying to starve people. It will deny that it is not allowing humanitarian aid into Gaza, by showing examples where it actually did allow some trucks to enter,” he continued, noting that what little humanitarian aid has been allowed into Gaza has been critically insufficient to address the needs of the more than 2 million people trapped in the strip. 

“It [Israel] will talk about any attempts they made in any of their operations to ‘reduce civilian casualties’, whether by warning civilians in certain places,” Dr. Nuseibah said, referring to Israel’s practice of dropping leaflets to notify civilians that their area is going to be attacked, or by providing QR codes and maps of “safe zones” and “combat zones” in Gaza – all practices that have been widely criticized both as insufficient to save civilian lives, and as a PR move by Israel to save face in front of the international community. 

At the time of publication, 96 days after Israel began its bombardment on Gaza, more than 23,000 Palestinians have been killed, the vast majority of them civilians. 

“So, Israel’s strategy will be to deny everything, because there is nothing else they can do or say,” Dr. Nuseibah said. “It is a longtime strategy and practice of Israel that we are used to. Israel always denies its crimes. Even until today, Israel denies the Nakba, that is the official position of Israel, to deny it.”

While Israel has focused much of its propaganda campaign on accusing Hamas, and supporters of the Palestinian cause in general, of carrying out or advocating for the genocide of Israelis and Jewish people, Dr. Nuseibah said he doubts that will be a feature of Israel’s arguments at the ICJ. 

“I doubt that they will do this or bring this up, because if they do, then they would have to present evidence. They would have to allow an open investigation into what happened on October 7th,” Dr. Nuseibah said, noting that Israel has historically prevented access to independent investigators seeking to probe potential crimes committed in the occupied Palestinian territory. 

How will this impact Palestinian lives right now?

While the deliberations on whether Israel is guilty of genocide in Gaza or not could take years, South Africa’s case is expected to yield a much more immediate and time-sensitive result. 

As part of its appeal to the court, South Africa is seeking an emergency interim decision by the court, or “provisional measures,” to order the Israeli military to cease its campaign in Gaza immediately, stop the displacement of Palestinians, and allow for the entry of adequate humanitarian aid into Gaza. The court could make that decision in as little as a few days or weeks. 

These provisional measures, Dr. Nuseibah says, are some of the most critical elements to the case and have the biggest potential to change the course of the unfolding genocide in Gaza.

“This is very time sensitive. Every day that we lose, we are losing more lives. We are losing more casualties. There are more homes that are demolished. There are more days that children are not going to school,” he continued.”There is a lot of loss every single day of civilian life, and there is no human being in Gaza who is not heavily influenced by what is happening.”

“All of the provisional requests that South Africa has made are there to save lives immediately. And I do expect that the court will take these measures. History has shown that the ICJ has given these provisional measures in similar situations, even with less casualties and less risk,” Dr. Nuseibah said. 

“So I do expect that the court will decide provisional measures, which would mean a ceasefire, which is the most important thing right now, as well as stopping the displacement, allowing for the entry of aid, and stopping the continuous demolition of Gaza.”

Israel has ignored international law before, what will be different this time?

A major concern that many Palestinians and people watching the lead-up to this case share is the question: even if this is a binding decision, what’s to stop Israel from just ignoring it, and continuing to blatantly violate international law?

After all, Israel has for decades ignored international laws and norms. Let’s take one of the more well-defined examples, like Israel’s continued expansion of Jewish-only settlements deep in occupied Palestinian territory, despite being deemed as illegal under international law. Other crimes, like forcible expulsion and displacement, torture of political prisoners, unlawful killings, the mass incarceration of children, and more, can be added to the list. 

A more recent example could be Israel’s well-documented killing and targeting of Palestinian journalists in Gaza and the use of white phosphorus on civilian populations in Gaza and Lebanon, a practice strictly prohibited under international law. 

Israel also has a history of skirting accountability on the global stage, often protected by the veto powers of the United States at the UN, for example. To say the least, the list is long. 

Being a Palestinian professor of international law, Dr. Nuseibah says he is acutely aware of just how much international law doesn’t seem to matter when it comes to Israel and its crimes against Palestinians and that people are justified in their skepticism. 

Just because an ICJ decision in this case would be binding, Israel could still technically choose to ignore a ruling against it or a decision by the court for Israel to cease its campaign in Gaza, Dr. Nuseibah said. Such a precedent was set most recently in 2022, when an ICJ ruling ordering Russia to stop its invasion of Ukraine was ignored by Russia, who carried on with its military campaign anyway. 

While Dr. Nuseibah hopes that the court will rule in favor of South Africa, he says he doesn’t expect Israel to comply with any order made by the court, whether it is to cease its bombardment of Gaza immediately or to, in the future, offer material reparations to Palestinian victims of Israel’s genocide (both possible scenarios should the court rule in favor of South Africa).

“Unfortunately, it is very likely that in the same way that Israel has ignored international law over the past 75 years, it will just ignore a ruling by the court against it,” Dr. Nuseibah said. 

That outcome is mostly due to how international law is set up. It’s a flawed system, Dr. Nusiabah told Mondoweiss, describing it as being good on paper but lacking any real “teeth.”

“The problem with international law is that it doesn’t have any automatic enforcement mechanism,” Dr. Nusaibah said. 

Should Israel ignore a decision by the ICJ, South Africa could then initiate a number of procedures at the UN Security Council and General Assembly in an attempt to force Israel to implement the ICJ decision. But that’s a long and tedious process that, no doubt, will not serve to help Palestinians whose lives are at risk right now.

Still, even with the high likelihood that Israel rebukes a court decision that is not favorable towards it, Dr. Nuseibah says any decision by the court will still be impactful and significant. If the court approves the provisional measures, it would create more international and public pressure on Israel, and its supporters like the U.S., to stop conducting and funding a genocide that has already caused major global outcry and political division in the U.S, for example. 

And if Israel were to be found guilty of genocide, well, that would do major damage to Israel’s public image and standing on the global stage, Dr. Nuseibah said, “allowing for more action by the rest of the world that has been silenced by international pressure,” in the form of sanctions against Israel, boycotts, and other more serious steps to stopping Israel’s genocide. 

What implications could this have in the future?

It’s clear what implications this case could have both in the immediate and long-term future for Palestinians, should the court decide in favor of South Africa. Right now, or at least in a few weeks, it could mean an end to Israeli bombardment and the preservation of thousands of innocent lives in Gaza. 

In the long term, should Israel eventually be found guilty of carrying out a genocide, as Dr. Nuseibah puts it, it would do major damage to Israel’s public image and to the countries that support it. 

It would help embolden other countries that have historically taken a back seat, to take more of a stance against Israeli crimes. For Palestinians, it could mean material restitution and even an admission of wrongdoing and an apology from Israel – something Palestinians certainly are not used to. 

But there’s one more outcome that would also have far-reaching consequences. There’s a 50/50 chance that the court does, in fact, rule in favor of Israel, which Dr. Nuseibah said would have far-reaching, devastating implications not only for Palestinians but for the entire world. 

“It’s not only about South Africa winning this. But let’s imagine another scenario in which Israel wins the case,” Dr. Nuseibah said. 

First, if Israel convinces the court not to grant provisional measures, it would mean that Israel would have the green light to continue and even escalate its destructive and dehumanizing campaign in Gaza, which has already claimed so many innocent lives. 

“In that scenario, Israel could then say ‘look, the court thinks we’re innocent, and what we did was legal, and that killing all of these civilians and cutting off water and food is not genocide’,” Dr. Nuseibah said. 

“It would be terrible for Palestine and for Gaza, but it would also be terrible for the rest of the world in the future. It would be a terrible precedent for any state that thinks genocide is the solution to its ideological problems, which is the way Israel thinks today,” he said.

“So the only right thing for the court to do currently is to actually accept the high moral request that South Africa has made, and to give the provisional measures to save Palestinian lives, because that would save many more lives in the future, and really it would save international law itself.”