Walter Lucken IV
Mondoweiss / December 29, 2024
Today marks one year since South Africa filed the landmark case against Israel at the World Court, charging Israel with the crime of genocide. But as the slaughter in Gaza continues, the question remains: what, if anything, did the case achieve?
The International Court of Justice (ICJ), the principal judicial organ of the UN, holds public hearings on the request for the indication of provisional measures submitted by South Africa in the case South Africa v. Israel on 11 and 12 January 2024, at the Peace Palace in The Hague, the seat of the Court. Session held under the presidency of Judge Joan E. Donoghue, President of the Court. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized UN organs and agencies.
Today marks one year since South Africa brought the charge of genocide against Israel at the International Court of Justice. In the legal case, known formally as South Africa vs. Israel, South Africa has argued that Israel has engaged in genocide against Palestinians in Gaza, in violation of its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Both South Africa and Israel have signed the Convention without reservation, and both states have important and unique relationships to international law, South Africa having included a number of international legal obligations in its 1996 post-apartheid constitution and the modern state of Israel owing its international recognition in many ways to the United Nations Partition Plan for Palestine. The immediate celebratory response within the global Palestine solidarity movement was no surprise. While many recognized the limited capacity of the world to enforce international law, the hope existed that even if purely symbolic, the case brought by South Africa would have some tangible consequence for the Palestinians in Gaza.
A year later, however, we must contend with the fact that South Africa’s case against Israel has not impeded Israel’s assaults on Palestinian life in Gaza in any way. The last major development was South Africa’s submission of its comprehensive statement of evidence this past October 28th, to which Israel has until July 28th 2025 to respond, which is to say that the case has moved along with less and less attention while Gaza remains under attack.
The acts alleged in the case have continued largely unabated, supported symbolically and materially by major world powers, the United States especially. This raises the question of what remains to be at stake in the case, and what it means for the Palestine solidarity movement globally for the case to go forward if its impact for Palestinians in Gaza has been minimal and the horrors of the past 14 months continue to unfold in full view of the world.
To answer that question, we have to consider the deeper historical background of the case, why it was celebrated as a triumph by many in the Palestine solidarity movement, and what it represents moving forward.
A limited victory for the movement
Reflecting back a year later, South Africa v. Israel has a mixed legacy thus far. While it has not prompted a change in the conditions on the ground in Gaza, it does represent a genuine, if limited, victory for the decades-long project wherein Palestinians and their allies have appealed to global civil society and international law to build legitimacy for the Palestinian cause and call attention to the ongoing Nakba perpetrated against the Palestinian people.
Especially since the advent of the BDS movement in 2005, activists across the world have had immense success in the narrative struggle for Palestinian freedom, reshaping perceptions of Israel’s occupation of Palestine and laying the groundwork for a generational shift in support for Palestine’s struggle for liberation. In this sense, amidst the wreckage of the last year, we can and should recognize South Africa’s case against Israel as something of a genuine win, especially given the international and institutional legitimacy it lends to the accusation, which movements can continue to build on going forward. Once again, we must also recognize the limitations of this approach and how it may appeal to self-serving motivations on the part of Western activists, namely preserving their moral authority and that of their organizations and institutions.
Another charge included in South Africa vs. Israel, which has been somewhat overshadowed by its focus on Israel’s actions in Gaza, is the charge that Israel practices apartheid. The BDS movement itself has its origins in international boycott campaigns against apartheid in South Africa, and has long based its argument against Israel’s policies on the apartheid analogy. The the argument that Israel practices apartheid has long functioned simultaneously as a moral indictment of its policies and a claim that Israel actually violates its obligations under international law. Thus, by including this argument in its case, South Africa was both reinforcing the rhetorical aspect of the apartheid analogy, which highlights the similarities between Israel’s policies toward Palestinians and apartheid South Africa’s policies toward its Black majority, as well as arguing that Israel is guilty of the actually existing Crime of Apartheid. If Israel were found guilty of this crime, which was initially declared a violation of international law in 1973 and is now under the jurisdiction of the International Court of Justice per 2002’s Rome Statute, its allies and the international community would have an obligation to intervene.
We can see here the roots of the rhetorical dynamic wherein individuals and organizations who have been quite willing to criticize Israel’s actions in Gaza over the past year have simultaneously resisted the use of the term “genocide” to describe them. This phenomenon in fact has its roots in a decades-long pattern wherein defenders of Israel are willing to grant some of its excesses, and even agree that its occupations of Palestinian and Syrian territories are immoral, but nevertheless object stridently to any attempt to label these policies as “apartheid”. We can learn from these objections the importance of our own insistence on using the proper terminology in the present, and the necessity that we continue to press for the “international community” to actually meet its obligations to Palestinians under international law. We in the West must also remain steadfast in making the argument that our own governments have consistently violated their own domestic laws with impunity.
International law at stake
After a year of deliberations in the case, another lesson that has become clear is the United States’s total rejection of the jurisdiction of international law , including its response to the warrants the ICC issued for Benjamin Netanyahu and Yoav Gallant. The Biden administration’s disdain for the ICJ and ICC can serve as incontrovertible evidence that the United States cannot be reigned in or sanctioned by international law any more than Netanyahu’s government can.
As such, the real gulf between anything resembling an “international community” and the policies of the United States at home and abroad has been laid bare for the world to see. This is to say that South Africa v. Israel has made crystal clear for anyone paying attention, that the most powerful players on the global stage do not consider themselves to be bound by the same standards to which they hold others, calling the entire legitimacy of international law and global civil society into question. Thus, at stake in South Africa v. Israel is the entire notion of an international consensus that the Palestine solidarity movement can refer to. As was commonly explained in the aftermath of the ICC warrants for Netanyahu and Gallant, international law has no power on its own, and every treaty or convention depends entirely on the actions of its signatories.
Thus, while South Africa v. Israel being considered at all represents a narrative victory for Palestine solidarity in some ways, it is primarily a victory for global civil society itself and the moral legitimacy and authority of the Rome Statute and the ICJ. In turn, it is crucial for allies of the Palestinian cause to ask ourselves whether our celebratory moments correspond to real victories for the Palestinian people, or if we have simply managed to defend our cherished institutions from the excesses of our own government’s actions.
Those of us involved in Palestine solidarity movements in the West must also examine our habit of celebrating symbolic or metaphorical victories while Israel continues its campaign of annihilation in Gaza. I myself watched as much of the court proceedings as I could and spent days pouring over the charges, reflecting on the legacy of the international struggle against apartheid and the victories of the 1990s. As much as there was hope and anticipation, I and many others all were well aware of the defeats of that period, and the very slim chances that the ICJ would manage to halt Israel’s destruction of Gaza or even elect to make such an attempt. As we press on, we must build on and defend our narrative victories, but never allow them to substitute for genuine material progress.
Walter Lucken IV is Assistant Professor of English at Queens College of the City University of New York
