Understanding South Africa’s case against Israel at the International Court of Justice

In an insightful unpacking of the International Court of Justice’s hearing of South Africa’s case against Israel regarding allegations of genocide, Judge Dennis Davis clarified that, “If South Africa wins parts of their case, this does not mean that Israel is guilty of genocide.” He highlighted the fact that a decision on whether or not Israel has committed acts of genocide against the Palestinian people would take many years to resolve.

In explaining the workings of the ICJ, and responding to a question from the moderator of the event, Mary Kluk, National Vice President of the SAJBD, Judge Davis unpacked the reasons for the case being heard largely on written papers, rather than on oral presentations. “The issue at hand at this early stage of the hostilities is essentially on trying to establish whether there is sufficient evidence to call for some sort of relief for the Palestinians, and not on whether or not Israel is guilty of genocide.” He likened the current legal action to the similar case brought in 2019 by The Gambia against Myanmar.

In terms of the current issues before the Court, the focus of the ICJ judges is on whether or not a provisional order should be granted against Israel for some relief for the Palestinians.

Relief would in all likelihood come in the form of Israel having to allow humanitarian aid into Gaza – which Judge Davis thinks may well be a decision of the Court. It could also be an order to stop hostilities entirely. While this is a possible outcome, the judges will have to take account of the risk to Israel of further attacks by Hamas should Israel have to cease its military action.

And, while many within our community regard our government’s case as ridiculous, Judge Davis does not expect the case to be dismissed in its entirety. He referred to the comments made by certain members of Israel’s Cabinet that certainly do have the ring of genocide to them. And, while they are not representative of the State’s policies, the fact that they were made by senior politicians in positions of power in the country does give the comments some weight, and so it is unlikely that all the judges will regard the case as lacking sufficient plausibility to be heard. 

“Since I expect that the plausibility test – i.e. the assessment of whether or not the case is worthy of consideration – will be fairly low in this case, I think that there is a strong chance that South Africa may get some relief,” Davis explained.

Insights were also provided into the make-up of the court. 15 judges make up the court – and all are appointed for nine years by the member states who are signatories to the Genocide Convention. In addition, a party to the particular action may appoint a judge from their own country. In this case, South Africa’s Dikgang Moseneke and Israel’s Aharon Barak joined the other judges. The court is composed of judges from a wide variety of backgrounds and nationalities and, while some may follow ‘the party line’ in terms of what their own country’s political stance is on the conflict, Judge Davis stressed that, “We must not assume judges from the developing world are necessarily not good judges. Many have, in fact, shown themselves to be fiercely independent, and many of them are highly educated and more than suitably qualified to take on the role.”

As regards the process involved, the judges will deliberate on what they have seen in the papers presented by both parties. It is likely that only one written judgement will be issued in the name of the judge appointed to write it. “But,” Judge Davis explained, “the judgement will summarise the views agreed to by a majority of the members of the court.” The decision of the court is likely to be announced within the next 10 days.

Judge Davis concluded with an appeal to the Jewish community locally to give some consideration to challenging ‘the elephant in the room’. “We cannot continue to ignore the fact that we live and work with many Muslim Capetonians on a daily basis. Yet, we do not understand each other and we do not engage with the other side on the issues relating to the Israel-Palestine conflict. It’s time for us to move ahead on this.” 

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