My Take | Why the South African genocide case against Israel really matters

If you support Israel but feel uneasy about the high death toll, you may not want to object to the ICJ’s ‘provisional measures’ to halt carnage

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The logos of the International Court of Justice (left) and the United Nations (right) as seen on the ICJ’s headquarters in The Hague, Netherlands. Photo: AP

Published: 9:00pm, 12 Jan 2024

As I watched South Africa’s legal eagles at the International Court of Justice (ICJ), it suddenly dawned on me that there was nobility to the lawyering profession after all.

Arguing for a case of genocide against Israel’s military conduct in Palestine, Tembeka Ngcukaitobi, Adila Hassim and Blinne Ni Ghralaigh have shown what is at stake is nothing less than basic humanity.

It is perhaps a great tragic irony that the nation that rose out of the ashes of the Holocaust has been dragged into the world court for genocide.

But let’s remember that the ICJ is not being asked to decide on that thorny question this week. The legal trio has presented horrifying accounts of unprecedented Palestinian suffering and killing. But what the court needs to decide, for now, is whether to issue provisional measures to halt Israel’s military assault in Gaza.

As explained in a November post on the blog of the European Journal of International Law, “Like interim injunctions issued by national courts, provisional measures seek to freeze the legal situation between parties to ensure the integrity of a final judgment.”

The court has that power under Article 41(1) of its own statute, and such measures are binding. That, of course, raises the question whether the losing party will respect or follow the measures. It’s almost certain that Israel will not. What then is the point?

Before we get into that, context matters. South Africa’s legal action is almost universally reported as big news, and it is. But it is not all that exceptional in recent years, as nations seek relief and adjudication in conflicts of varying intensity. Such manoeuvres have become part of contemporary international politics, as the ICJ’s own records have shown.