How South Africa is challenging Israel at the ICJ: A case of obligation to prevent genocide

Most recently, South Africa has instituted proceedings in the International Court of Justice (ICJ) against Israel, accusing it of violating the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to its military operations against the Hamas in the Gaza Strip. Aside from the allegation that the actions and omissions of Israel have been genocidal in character and that they have failed to prevent genocide, South Africa has also asked for provisional measures to "protect against further violation of the rights of the Palestinian people under the Genocide Convention" and "to ensure Israel's compliance with its obligations under the Convention." 

Both states are parties to this Convention and Israel has announced that they will defend themselves in the legal proceedings. While some states and organisations have lauded South Africa for initiating the proceedings, it must be remembered that the jurisdiction of a court and its power to grant any relief does not revolve around popular sentiment but rather on the legal norms and practices of the court in question. 

Since the actions of Israel involve the invocation of the right of self-defense recognised under article 51 of the UN Charter, whether ICJ grants provisional measures in this instance remains to be seen.

South Africa has indicated in the application that the proceedings have been initiated due to its obligation as a State party to the Genocide Convention, to prevent genocide and has situated its standing within this obligation. This obligation arises from article I of the Genocide Convention, which states that parties have "to prevent and punish genocide." However, the kind of measures that can be taken to prevent genocide has not been mentioned in the provision. In its judgment of the Bosnian Genocide Case of 2007, ICJ indicated that the discharge of this obligation to prevent genocide is to be assessed based on the capacity of the parties "to influence effectively the action of persons likely to commit, or already committing, genocide." Further, the judgment elaborated this obligation as a duty to use such means by the parties so as to have "a deterrent effect on those suspected of preparing genocide." This interpretation of ICJ has opened doors to connect the obligation under Article I with Article IX of the Convention, which allows the parties to submit disputes relating to the fulfillment of the Convention, including those relating to the responsibility of a state for genocide to the ICJ. South Africa has mentioned in its application that the request for provisional measures has been made in the context of the calls from the UN experts, the Committee on the Elimination of Racial Discrimination (CERD), and by the State of Palestine to state parties of the Genocide Convention to respect their "obligation to prevent genocide."

Besides, the proceedings of South Africa bring into memory the case of Gambia v Myanmar, where Gambia sought provisional measures against Myanmar regarding the alleged genocide committed against the members of the Rohingyas in its territory. Myanmar objected to the standing of Gambia, since Gambia was "a non-injured State" and not a "specially affected State." ICJ believed all state parties to the Genocide Convention have a common interest in ensuring the prevention, suppression, and punishment of genocide. With reference to its judgment in the Case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ reiterated that under the Convention against Torture, all state parties had a common interest to ensure compliance with the relevant obligations under the treaty. As such any party could invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Similarly, under the Genocide Convention, states can institute proceedings before the Court for an alleged breach of obligations erga omnes partes, regardless of any special interest. ICJ also mentioned that to invoke the jurisdiction of the court for an alleged breach of obligations erga omnes partes under the Genocide Convention, it is not necessary to demonstrate that any victims are the nationals of the state initiating the proceedings. 

Thus, the judgment of the ICJ in the Gambia case entitles South Africa to invoke article IX to fulfill its obligations under Article I. In the Gambia case, and subsequently in the case of Ukraine v Russia, initiated in 2022, both of which dealt with the Genocide Convention, ICJ granted provisional measures. However, since the actions of Israel involve the invocation of the right of self-defense recognised under article 51 of the UN Charter, whether ICJ grants provisional measures in this instance remains to be seen. In any case, the proceeding, to some extent, has the potential to impact the military activities of Israel in the Palestinian territory.    

The writer is Lecturer of Law, Port City International University.