The World Court’s decision in South Africa v. Israel is a skillful synthesis of law, ethics, and politics. The Court (formally known as the International Court of Justice or ICJ) speaks as the highest authority for interpreting the Genocide Convention, perhaps the most sensitive area of international law, which is itself an unfinished work—a grand effort to fashion a consensus about universal norms that all nations and people are obligated to obey. The judges know they are asserting sweeping authority with relatively recent rules that are inherently contentious. They also know they have no power to unilaterally enforce their decisions even if they enjoy wide support in public opinion around the world. The Court recites its legal treaty powers to assume jurisdiction, but the main source of its boldness lies elsewhere, in confidence over its legitimacy—the unique respect and prestige that give the Court an ethical and psychological stature that no government or rival tribunal can match.
Whose Conscience?
The opinion frequently notes that the Convention proclaims genocides to be acts so monstrous that they “offend the conscience of humanity.” What is this conscience and how is it known? The Convention proclaims it, the judges interpret it, and the Court issues orders to obey it. The United Nations entrusts 17 women and men from different countries and cultures with the responsibility to opine on the moral character of the world and to urge compliance with their pronouncements. This process relies on a number of assumptions, including some that are implicit and highly counter-intuitive. For example, there are assumptions that humanity possesses a conscience; that the contours of that conscience are knowable from treaties and customs; and that high court judges have skills and experiences that enable them to interpret a nascent legal consensus as though it were a well-formed world conscience and to apply it in specific disputes, including clashes between nations that wield enormous military power.
Common sense invites skepticism about all of these assumptions. Experience shows that a person can have a conscience or not. People with consciences can have values that overlap in some areas but diverge in others. But can all people share a universal conscience? Of course, they can, but only if they create it themselves. Such a conscience would have to be man-made, not divinely revealed or naturally endowed. One could ask, “If humans had enough moral sense to create a common conscience, what would it look like?” Perhaps it could be fashioned from a convergence of major world religions and ethical teachings. It might even look something like contemporary international law on a few topics where consensus is virtually universal.
Genocide might be one of those rare instances where the law is not shot through with exceptions and loopholes that undermine its supposed purpose. Much of international law really licenses the very harms it seeks to limit. This tendency has produced a patchwork of legal regimes that regulate and perpetuate a host of injurious actions instead of abolishing them. For example, the law of war permits armed conflict under many circumstances; trade law allows retaliatory measures if offending parties flout the rulings of the World Trade Organization; and environmental law authorizes some polluters to continue without obstruction as long as they contribute to financial funds dedicated to the gradual reduction of pollution in general.
The Genocide Convention is a rare example of an absolute ban without exceptions. Moreover, the law creates both a right and a duty for all nations to prevent genocide wherever it occurs. Genocide is everyone’s business because it shocks the conscience of all people and compels every nation to act in order to end it. The Court explicitly acknowledged South Africa’s standing to challenge Israeli military action in Gaza for several reasons. According to the judges, South Africa is an interested party because genocide injures all of humanity, not merely its immediate targets. In addition, South Africa is obligated to do whatever it can to prevent genocide, including taking legal action against perpetrators. Indeed, in the Court’s view, South Africa itself would be an injured party if anything obstructed its effort to seek judicial action against genocide. The same is true for every nation that is a party to the Convention and possibly for non-parties as well. In the eyes of the Court, genocide is a crime of concern to everyone—erga omnes partes. Everyone has a right to protection against it and an obligation to end it. By now, the ban on genocide has become such a widely accepted norm that it can be regarded as a special kind of nearly universal law, jus cogens, that it is binding even on the 41 non-consenting states that never accepted the Convention.
The Socializing Role of the World Court
Because the anti-genocide principle is so strong, the judges know they can rely on an already widespread sense of obligation to prevent it—an obligation that has been internalized deeply but imperfectly throughout the world. The judges don’t have to pretend to act as oracles, unilaterally announcing a new standard that clashes with traditional values and customary practices. Instead, the Court can play an active socializing role, appealing to the norm where it is firmly rooted, nurturing it where it is growing but still fragile, and planting its seeds in the few places it might still be absent. The hope is that invoking the principle can trigger self-enforcement—voluntary compliance through a combination of social pressure and personal responsibility. Lacking its own enforcement powers, the Court compels resisters to deal with the prospect of protracted shame and guilt if they chose open defiance.
The anti-genocide norm may not be truly universal, but it is universal enough to demand respect. The judges’ readings of disputed facts might be imperfect, but they are persuasive enough to require a defense and counter-argument. Israeli officials objected to the proceedings and disagreed with most of the Court’s conclusions. Nevertheless, Israel did not boycott the trial. Its lawyers appeared and offered the best defense they could. They submitted evidence and vigorously refuted South Africa’s arguments, one by one. And on every point, they lost by overwhelming margins—16 to 1 on two issues and 15 to 2 in four others.
The Israeli judge, Aharon Barak, insisted there was no evidence of genocidal intent and, therefore, no basis for the Court’s jurisdiction under the Convention. But even he sided with the majority in ordering Israel to take greater action in preventing and punishing incitement to commit genocide and in providing humanitarian assistance to Gaza’s endangered residents. He especially objected to the two matters that directly addressed military and state functions. He objected to what he regarded as overly intrusive directives for the military to change its battlefield operations and for the government to report on its efforts to comply with the Court’s ruling in one month’s time.
Only a single member of the Court voted in Israel’s favor on all issues. The judge from Uganda, Julia Sebutinde, contended that the Israel-Palestine conflict carried so much historical baggage that it should be regarded as a political question requiring diplomatic action that was beyond the Court’s authority and competence. Along with Justice Barak, she cautioned against misusing the Court to interfere in intractable political disputes that had no genuine legal solution. The Ugandan government quickly compounded her isolation by declaring its agreement with the Court and by disavowing what it described as Justice Sebutinde’s personal opinions. Nevertheless, the Court’s legitimacy can be damaged if the objections of the Israeli and Ugandan judges reverberate and cast the Court as overreaching its legal authority in order to advance its own political objectives.
Is There Just One Court for Genocide?
Only recently have erga omnes obligations turned from empty promises to real protections. A turning point came in 2019 when Gambia approached the ICJ with charges of genocide against Myanmar concerning the mass killings and displacements of Rohingya Muslims. This was the first time a state sought redress under the Convention for genocidal acts committed against the citizens of another state. Fifty-seven members of the Organization of Islamic Cooperation joined in the initial case asserting their “common interest” in preventing genocide. The Court assumed jurisdiction, issued preliminary orders for Myanmar to comply with the Convention and to preserve relevant evidence. In 2003, as the Court moved toward considering the merits of the allegations, several other nations intervened as well—five European nations, Canada, and the Maldives.
In each instance, the Court recognized the standing of the states based on their shared obligations as parties to the Convention. The United States did not join the suit but, in 2022, the State Department made a rare declaration that the Rohingyas were indeed victims of genocide. After Gambia v. Myanmar, every population threatened with genocide can appeal to any of the 153 signatories of the Convention to champion its cause before the world’s highest tribunal.
Gambia’s impressive success with the ICJ probably encouraged the South Africans to engage in a risky kind of forum shopping. Instead of presenting a strong case against war crimes to the International Criminal Court, they chose to file a much weaker case against genocide with the ICJ. They hoped the ICJ would promptly accept jurisdiction and issue preliminary relief even though the extremely high standard of proof for genocide—clear intent—meant they might eventually lose on the merits.
The alternative approach would have been a charge against Israeli war crimes or crimes against humanity before the International Criminal Court. In principle, the ICC seemed a more appropriate forum with less rigorous evidentiary requirements for an ultimate victory. But Israel is not a member of the ICC and rejects its jurisdiction in ongoing inquiries into suspected Israeli war crimes on Palestinian territory. It is not surprising that South Africa preferred safer access to a more prestigious court with a better record of prompt action even if it meant climbing a steeper hill to prove its case in the long run. Nonetheless, appearances of forum shopping can detract from the South African victory as well as the Court’s prestige.
The U.N. as a Political System
The Court’s vulnerability to criticism is greater than ever because its inherently political nature has been aggravated by years of open confrontation between the United Nations as a whole versus Israel and the United States. ICJ judges are elected by and accountable to the U.N. General Assembly and the Security Council. They are nominated by their governments and routinely confer with them on matters before the Court. Inevitably, their legal actions are viewed in the wider context of rivalries between U.N. leaders and member states as well as internal conflicts between U.N. bodies.
At many points, the South Africa v. Israel decision reads like a spirited defense of embattled U.N. leaders and agencies. In describing the dimensions of the human suffering in Gaza, the judges presented numerous quotations from all levels and branches of the U.N. organization. They spoke through the voices of the Secretary General, the World Food Program, the World Health Organization, U.N. Relief and Works Agency, the U.N. Office for the Coordination of Humanitarian Affairs, the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, the U.N. Human Rights Council, and the U.N. Committee on the Elimination of Racial Discrimination. It seemed as though the entire U.N. community had been invited to testify that they were also victims of Israeli assaults alongside the Palestinian residents of Gaza.
Israeli intelligence lost no time in further undercutting the U.N.’s integrity. The same day the Court issued its decision, Israel accused 190 UNRWA employees of doubling as Hamas or Islamic Jihad militants, claiming that at least 12 of them were involved in the October 7 attack. UNRWA fired the suspected workers, but the U.S. and several other countries suspended contributions to the agency just as demands for humanitarian assistance reached peak levels. Given the weight the judges had attached to UNRWA accounts of the Gaza crisis, the Court’s prestige was also weakened and its order for speedier aid deliveries seemed certain to be delayed indefinitely. Israel, the U.S, and the U.N. were taking their quarrels to new heights, inflicting greater damage on one another while leaving the Palestinians and the Court to struggle in their wake.
South Africa’s Rise and Israel’s Turmoil
Despite the political complexities of the case, there is little doubt that South Africa emerged as the biggest winner and that Israel’s right-wing government suffered a humiliating defeat. The Court granted all of South Africa’s requests except for an outright order for Israel to end the war. The judges did not accuse Israel of genocide, but it found a reasonable suspicion that Israeli leaders harbored genocidal intent and that the military was engaging in conduct that amounted to genocide. They cited incendiary and dehumanizing statements by the Prime Minister, the President, and the Minister of Defense—language that sounded like self-incrimination even to large segments of the Israeli public. The court acknowledged Israel’s claims that it endeavored to minimize civilian casualties, to investigate credible accusations of war crimes, and to provide essential aid to the endangered Palestinian population. But the Court described all of these efforts as woefully insufficient in view of the rapidly deteriorating conditions in Gaza.
Moreover, the Court directly impugned Israel’s honesty by implying that the government might destroy evidence of genocidal conduct. The judges explicitly cited the urgent need to preserve evidence as a reason for granting what amounts to a preliminary injunction ordering Israeli officials to take more serious steps to prevent genocide and to report concrete measures that demonstrate compliance with the Court’s directives. By issuing an injunction against Israel, the Court made two powerful statements. First, it insisted that urgent action was needed to prevent irreparable harm because civilian lives were in imminent danger and because Israeli officials could not be trusted with incriminating evidence. Second, their very willingness to grant injunctive relief showed that the judges wanted to hear more argument when litigation moved to the next stage. In U.S. domestic law, courts usually issue injunctions only if the Petitioner can show it is “likely to succeed” on the merits of the case. The ICJ standard is not that high, but judging genocide accusations to be “plausible” shows that the Court was tilting in South Africa’s direction.
For the hardliners in Israel’s government, the decision created greater pressures both externally and internally. The Genocide Convention was conceived as a direct response to the Holocaust that exterminated millions of Jews in Europe. But now, the Jewish state itself was being accused of the very crime that had vindicated its creation. Unbelievable as it seemed to most Israelis and their supporters, they had to take the charges seriously or risk the sort of international isolation that Myanmar and Russia endured after rejecting ICJ orders just a few years earlier.
Worse yet, the Court ruling coincided with deepening domestic quarrels over right-wing plans to weaken Israel’s Supreme Court. The Israeli high court struck down the government’s judicial reforms on January 1, 2024—nearly three months into the war and less than a month before the ICJ decision. Aharon Barak, the Israeli member of the ICJ panel, was a retired President of Israel’s Supreme Court. By siding with the ICJ majority on two of the six questions before the Court, he was seen as giving ammunition to Israeli critics of the government’s war conduct. Barak’s double role—as an independent voice in controversies before international and domestic tribunals—put the rightist government on the defense at a critical moment. With Barak’s partial assent, the ICJ ruling helped breathe new life into Israeli opposition groups pressuring the government to scale down the war in Gaza and, at the same time, to abandon its assault on judicial autonomy.
Meanwhile, Israel’s war cabinet was imploding. On January 18, Gadi Eisenkot appeared in an hour-long interview with Ilana Dayan, one of the country’s television news stars. Eisenkot is a former Chief of Staff of the Israeli Defense Forces who had recently lost his son and a nephew in the Gaza fighting. He accused the government of lying about the war. He said they were not destroying Hamas and that they would never free the hostages unless they struck a deal to swap Palestinian prisoners for Israeli captives. Eisenkot insisted that Israel had to reverse its current priorities: free the hostages now and go after Hamas later. Deepening splits in the government rekindled mass protests. Once again, Netanyahu’s opponents filled the streets demanding new elections and it appeared the campaign had already begun.
Balance of Power Shifts
South Africa’s victory at the ICJ was welcomed for many reasons that transcended immediate concerns over the war in Gaza. The South Africans showed that the U.N. system could respond effectively to world crises despite the stranglehold of the great powers in the Security Council. Their success highlighted the pluralism of U.N. mechanisms, revealing a decentralized political process with multiple points of leverage that are open to all member states with the skill to navigate them.
In this context, the balance of power within the U.N. appeared more fluid than ever. The Court was more aligned with the General Assembly than with the Security Council. The judges were giving vent to frustrations of the Secretary General and the line agencies. At the same time, the non-permanent members of the Security Council were gaining a stronger voice and the United States was often the lone holdout among the veto-wielding members. All of these alignments have been developing for decades, but the Gaza war has helped to crystalize them with unusual clarity and South Africa’s success suggests they will sharpen in the years ahead. If the Court appears to become a more politicized forum within a more contentious U.N. system, Justice Sebutinde’s admonitions against judicial overreach are likely to be echoed with greater force—both inside and outside of the ICJ.
South Africa has global ambitions to play a leading role in strengthening a broad coalition of developing countries in Africa, Asia, and Latin America. South Africa’s reputation as a pioneer of anti-colonialism and anti-racism is a key asset in this strategy. The Gaza war gave Pretoria a golden opportunity to burnish its brand by vilifying Israel as a colonial settler state that is based upon apartheid and sustained by American imperialism. For many Israelis, the sting of these attacks, laid out in formal ICJ proceedings—and widely circulated in the mass media—was a greater outrage than the adverse ruling itself. When Cyril Ramaphosa learned of the victory and broke into dance with his Palestinian colleagues, he was celebrating far more than a good day in court. Eager to turn the page on years of domestic scandal, South African politicians looked forward to a new era of prestige on the world stage as a leader of the Global South.
Because South Africa favors a more multipolar international system, it seeks to counterbalance U.S. dominance with alternative power blocks, particularly China, Russia, BRICS, and friendly African neighbors. Pretoria likes to describe its diplomacy as a revival of the old non-aligned movement but, in practice and in sentiment, it frequently sides with China and Russia while clashing with the United States. South Africa’s spats with the U.S. go far beyond bilateral relations. They aggravate geopolitical conflicts at the heart of Washington’s efforts to ward off challenges to American primacy. Some of the most notable examples include insisting on partnerships with China’s Huawei telecom firm, refuting U.S. accusations that Pretoria supplied weapons to Russia in the Ukraine war, hosting joint naval exercises with China and Russia in South African waters, and promoting new financial tools to compete with the dollar in global commerce. From this perspective, South Africa’s challenges to Israel in the ICJ fit into a larger pattern of competition with the United States in the U.N. and in the wider global area. For South Africa, the U.S. is an enabler of Israeli genocide and, for Israel, the U.N. is an enabler of Palestinian terrorism. In diplomatic terms, the case of South Africa v. Israel also involves two other parties—the U.N. as a silent co-Applicant and the U.S. a silent co-Respondent.
Iran in the Foreground
In geopolitical terms, the role of Iran casts a long shadow over both the legal and diplomatic dimensions of the case. By creating a monitoring role over Israeli conduct, the Court has inserted itself into an ongoing war that will increasingly revolve around disputes over how to deal with Iran. Iran is the regional power behind the alliance supporting Hamas just as China and Russia are the great powers backing Iran. The Court’s actions aim at ending the war through diplomacy instead of with an empty judicial command for a cease-fire. That approach shows promise, especially while negotiations continue over hostage-prisoner exchanges and stronger flows of humanitarian aid. But the longer the war continues, the more it will escalate, and escalation will ratchet up the pressures to strike Iran directly. For several years, anti-Iran factions have been building strength in the U.S., Israel, Saudi Arabia, and the United Arab Emirates. As the Gaza war triggers more violence in neighboring countries, the hardliners will be more likely to demand the head of the snake that has threatened them since the Islamic Revolution.
So far, the conflicts in the Middle East have not divided the United States as much as Israel, but that is changing quickly as the presidential campaign gathers steam—and heat. Nikki Haley has already set the tone of brinksmanship and others are sure to follow. In her view, a gathering Russia-China-Iran axis is the greatest threat to American interests and to world peace. When militias attack American troops and ships in the Middle East, she calls on President Biden to “take out” the Iranian leaders directly instead of limiting retaliation to the “proxy fighters” because “they’ll just add new ones.”
Biden’s response to Iran hinges on reviving hopes for a two-state solution. His advisors believe that even the remote prospect of a Palestinian state will trigger a virtuous cycle of calm in the occupied territories, rapprochement between Israel and the Arab oil monarchies, and containment of the Iranian-led Rejectionist Front. This vision denies the realities in Israel today. More than ever, extremist influence over public opinion and government policy prevents any movement toward Palestinian national independence. To change Israel’s position, Biden would have to change Israel itself, starting by toppling Netanyahu and his rightist allies.
Biden and Netanyahu are headed for a showdown. Biden wants to exhume the two-state solution from its grave. But Netanyahu, who buried it, will bury himself if he tries to reverse course now. Biden’s supporters think the Israeli public adores him so much that he can bend Netanyahu to his will. But half of Israel will reject both men the moment they speak of ceding occupied land under any circumstances. As Biden’s initiatives drag on without success, the West Bank is very likely to erupt and trigger even wider violence across the Middle East. Such a conflagration would turn the world upside down, leaving America’s position weaker on every international front—and at home—no matter who wins the coming elections.
Bold Judges and Stymied Diplomats
The Court’s critics complain that judicial intervention is no cure for failed diplomacy. As a general principle, that is probably correct. But, in this instance, the ICJ was right to force the world to rethink an intractable conflict with hidden dangers that must not be underestimated. The line between genocide and war crimes can be invisible both legally and morally. Israeli officials have no consistent explanation of their intentions—they support killing in self-defense, killing for the sake of killing, killing for land, and killing for land without people. In the face of that ambiguity, the Court felt compelled to recognize plausible grounds for genocide. The alternatives would have meant turning a blind eye or passing the buck, effectively inviting the killing to feed on its own momentum.
The Gaza war still has a long way to go and the Court’s influence is likely to diminish as the fighting spreads. As the war mutates into a regional—and perhaps a global conflict—the ICJ’s voice becomes more important than ever. Unfortunately, it may be inaudible exactly when it’s needed most.
Beyazomar 