The war in Gaza has now reached the International Court of Justice (ICJ). In the closing days of 2023, South Africa filed an application instituting proceedings against Israel before the ICJ. South Africa alleges that Israel’s conduct in Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide both by committing genocide against Palestinians in Gaza, and by failing to prevent it, including by failing to hold senior Israeli officials and others accountable for their direct and public incitement to genocide. The application concludes by requesting a series of “provisional measures,” including that Israel immediately suspend its military operations in Gaza.
The application has set off a firestorm. The accusation of genocide is particularly gut-wrenching for many Israelis. After all, the Holocaust, in which six million Jews were killed, was the impetus for the very treaty that Israel is now accused of violating. Israeli government spokesman Eylon Levy furiously stated, “The State of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel,” equating the application with antisemitic slander against Jews.
Here we take a step back to examine the legal claims made by South Africa in its application, the basis for South Africa’s claim for standing to bring the case, what to expect as the case unfolds, and the possible broader legal effects of the case, including for the United States and other allies of Israel. Whatever one thinks of the merits of South Africa’s claims, the case demonstrates that the new form of standing recognized by the Court—“erga omnes partes standing” (standing based on obligations “in relation to everyone,” or owed to all), which we have discussed at length in a forthcoming law review article—has the potential to revolutionize the enforcement of long under-enforced human rights treaties. But this new frontier brings risk to the Court as well. [Continue reading…]