“The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the genocide convention,” the case states.

Israel has signalled its determination to rebuff the charges, which Tel Aviv and Washington have rejected as baseless. It could take the court years to make a ruling, but it could also issue “provisional measures” requiring actions, like a ceasefire, to mitigate the risk of genocide.

The Israeli government could ignore the measures, but to do so would cause enormous reputational harm and loss of influence on the world stage for Israel and its principal backer, the US.

Precedent

The intervention by South Africa, a state not involved in or directly harmed by the war in Gaza, is extremely rare, but it is not the first. The precedent was created by the Gambia, when it took Myanmar to the ICJ in 2019 accusing it of genocide against the Rohingya.

In 2021 the court imposed provisional measures on Myanmar, requiring the junta to direct its forces not to commit genocide, and to preserve all relevant evidence. The next year, the ICJ panel of judges decided by 15 votes to one (the Chinese judge was the lone dissenter) that the Gambia had the right to bring the case under an erga omnes obligation laid down by the genocide convention, meaning that it is the duty of an individual state towards the international community as a whole.

Savita Pawnday, the executive director at the Global Centre for the Responsibility to Protect, an NGO, said: “[the] Gambia taking Myanmar to the ICJ for its violations under the obligations of the genocide convention opened the gate for what is happening now with South Africa taking Israel to court. I think that is a fantastic step in addressing the climate of impunity that has operated for decades.”

Before the Gambian precedent, the ICJ had rarely considered genocide issues. In 2007, the court ruled that Serbia had failed to prevent the 1995 genocide at Srebrenica in Bosnia and Herzegovina, a case of a victim taking an alleged perpetrator to court, but it has never yet held a state responsible for the commission of genocide. A case brought by Ukraine against Russia in February 2022 continues.

Genocide convictions have been passed down by other courts, like The Hague war crimes tribunals for Rwanda and the former Yugoslavia, and the international criminal court has jurisdiction in genocide cases, but those courts pursue trials of individuals and after the fact, when the dead are already buried.

The ICJ rules on state responsibility and can take steps to prevent genocide. Prevention was certainly the aspiration in 1948 behind the convention when the UN general assembly adopted it in Paris, in the aftermath of the second world war and the Holocaust.

Arguably more than any other international convention, it was the work of one person, Raphael Lemkin, a Polish Jewish lawyer who had sought refuge from the Nazis in the US. In 1944, Lemkin coined the term “genocide” for what Winston Churchill had called a “crime without a name”, and spent the immediate postwar years on a one-man lobbying campaign in the newly formed United Nations.

However, that personal victory was tainted by his failure to convince the US Congress to ratify the convention. The Senate refused even to hear him speak and raised objections that such a law could leave the US vulnerable to prosecutions for the destruction of the Native Americans and for segregation.

Lemkin died in 1959, impoverished and almost forgotten. Seven people came to his funeral. He ended his life in disappointment as he had seen ratification as vital for the convention to take flight. In his view, only the US had the power and international standing to enforce the convention and make it a global norm.

The Senate did not ratify until 1988, and it took a major gaffe to make it happen. Three years earlier, Ronald Reagan had attended a ceremony at a cemetery in Bitburg, Germany, only discovering later that 49 members of the Waffen-SS were buried there.

Reagan had previously been uninterested in pushing ratification of the genocide convention, but the White House hurriedly reversed course in an effort to regain trust from Jewish Americans. A government lawyer who had written a paper advocating ratification, Harold Koh, got an urgent call.

“Suddenly, I was told to bring our advice about the genocide convention to the White House so that they could bring it out that day,” Koh said. “I drove up in my car and this guy in a military uniform came out and grabbed it from me and I said to myself: why is this guy wearing a military uniform if he’s in the NSC [national security council]?” The man in uniform was Col Oliver North, who would later be convicted for felonies related to the Iran-Contra scandal linking the White House to human rights abusers in both Nicaragua and Iran, making North an embodiment of the risk of hypocrisy facing any state seeking to wield international humanitarian law against another.

When the Senate did ratify the convention, it also made genocide a crime under US law, but it blocked the route to the ICJ. It loaded the ratification with caveats that stipulated the US could not be taken to court without its government’s consent. By the principle of reciprocity, any state it took to the court could claim the same protection.

David Scheffer, who was the first US ambassador-at-large for war crimes issues, said: “Other countries are forging ahead with the genocide convention so I don’t think the US posture with its reservation to be too damaging. It is just unfortunate as we need to be able to use and participate in the genocide convention as a powerful tool of law enforcement.” 

Like the US, other big powers have been reluctant to take other states to the ICJ for fear of being pursued in the court themselves or facing accusations of hypocrisy.

In 1994, Human Rights Watch tried to persuade governments to take Iraq to court for the mass killings of Kurds, but the capitals it approached wanted a European power to take the lead, and no European state was willing.

That deadlock has now been broken by the Gambia and South Africa deciding to take the initiative. Even if the ICJ does pass down provisional measures, it is more than probable that Israel will ignore them, but Kate Ferguson, the co-founder of the human rights advocacy group Protection Approaches, argues the effort would still not be in vain.

“Will it be enough to stem the tide of atrocity crimes? No, of course not,” she said. “But if more states can stand up and fulfil their state obligations under the convention, that can only be a good thing.”

Guardian