It’s likely to be a moment of high drama at the International Court of Justice (ICJ) in the Peace Palace in The Hague on Friday afternoon when Judge Joan E  Donoghue, the president of the court, announces the decision of the 17 judges on South Africa’s request to the court to issue provisional measures against Israel to stop its alleged genocide in Gaza.

International Relations and Cooperation Minister Naledi Pandor will be in the court as the head of a South African delegation and representatives of Israel and Palestine will surely be in the court too, and probably outside it.

What the court will announce has been kept a tight secret. The first prize for South Africa and Palestine will be if the court orders Israel to “immediately suspend its military operations in and against Gaza” as SA requested.

South Africa requested several other measures against Israel, including that it stop inflicting on the Palestinian people of Gaza “conditions of life calculated to bring about its physical destruction in whole or in part” and also to stop “imposing measures intended to prevent births within the group”.

It requested provisional measures to stop “the expulsion and forced displacement” of Palestinians from their homes and to give them access to adequate food, water and other humanitarian assistance.

Read more in Daily Maverick: ‘Nothing will stop this suffering, except an order from this court’ — SA sets out the evidence against Israel

The court could decide to order all these measures, or it could decide to order none by refusing to accept jurisdiction of the case. The latter would probably be on technical grounds — that South Africa had failed to prove it had a dispute with Israel over its charges that Israel was committing genocide in Gaza.

The court does not have to decide yet whether Israel has been committing genocide in Gaza. That will be determined later, perhaps in a year or more from now. The court only needs to be convinced now that there is prima facie evidence of genocide to order provisional measures to protect the people of Gaza pending its final ruling.

Jurisdiction

Most legal analysts seem to believe that the court will accept jurisdiction of the case and therefore will order some provisional measures, but not all measures and especially not an immediate ceasefire by Israel. 

The ICJ judges, led by court president Joan Donoghue, during the hearing of the genocide case against Israel brought by South Africa, in The Hague, The Netherlands, on 12 January 2024. (Photo: EPA-EFE / Remko de Waal)

Cathleen Powell, a professor of international law at the University of Cape Town, acknowledges that “we’re all reading tea leaves here”.

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Nevertheless, she says that she and other international law experts she has spoken to believe that the court will find that it has jurisdiction, meaning “there is a dispute, there is a prima facie case of genocide, there is urgency and there is risk of irreparable harm”.

But she predicts it will then order “a tailored-down set of provisional measures. I think it’s going to stop short of ordering a ceasefire. After all, nobody has denied there is an armed conflict, and, as Israel pointed out, any order of ceasefire would apply to only one side of that conflict.”

(The order will not cover Hamas which is not a party to the Genocide Convention under which SA has brought this case.)

Possible US veto

How Israel will react to any provisional measures issued by the court is unclear. Prime Minister Benjamin Netanyahu has already said he would ignore a ceasefire order and would continue to pursue Hamas.

Powell points out that if that were to happen, South Africa could take the matter to the UN Security Council, as the UN Charter says, “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

Read more in Daily Maverick: Israel says ICJ order, if granted, would leave it defenceless against Hamas

Pretoria has not said whether it would take the case to the Security Council if Israel ignored a ceasefire order. Vincent Magwenya, the spokesperson for President Cyril Ramaphosa, told Daily Maverick, “We will cross that bridge when we get to it. However, South Africa will use all available legal and diplomatic means to end the genocide in Gaza.”

According to the Middle East Monitor, though, Israeli law experts say that Israel is relying on the US to veto any UN Security Council (UNSC) orders which might follow from an ICJ ruling in favour of South Africa’s genocide case.

The article notes that while ICJ rulings are final and cannot be appealed against, the court has no authority to enforce them and must rely on the Security Council. “But there, the US, Israel’s number one backer, has veto power as a permanent member.”

Powell points out that there would be other consequences for Israel, including, “the moral pressure on both itself and its allies that there is a prima facie case of genocide. [And] people in the UNSC and elsewhere having to justify not enforcing a decision of the ICJ. As noted in much of the commentary, Israel’s behaviour improved with the mere bringing of the case. So a judgment against it is going to give it a lot more to prove.” DM

Impact on US-South Africa relations

US Secretary of state Antony Blinken says America’s disagreement with South Africa over Pretoria’s genocide charges against Israel will not detract from relations between the two counties.

Read more in Daily Maverick: US legislators vent ‘disgust’ at SA’s genocide charge 

He was asked about the impact of the case on relations at a press conference with Angolan foreign minister Téte António in Luanda on Thursday. 

“With regard to the ICJ, look, I’m not going to get ahead of the opinion.  You know our views on the on the case; those views stand,” he said

“And of course, our relationship with South Africa is vitally important, and it is a very broad and deep relationship covering many, many issues.  So whether or not we have a disagreement on one particular matter doesn’t take away from the important work that we’re doing together in so many other areas and that we’ll continue.”

Blinken also spoke to International Relations and Cooperation Minister Naledi Pandor about the ICJ case in a telephone call on Thursday.   State Department spokesperson Matthew Miller said the two ministers had spoken about the conflict in Gaza, “including the need to protect civilian lives, ensure sustained humanitarian assistance to Palestinian civilians, and work towards lasting regional peace that ensures Israel’s security and advances the establishment of an independent Palestinian state. 

“The Secretary reaffirmed support for Israel’s right to ensure the terrorist attacks of October 7 can never be repeated. Secretary Blinken and Minister Pandor also reaffirmed the importance of the U.S.-South Africa partnership and cooperation on shared priorities, including health, trade, and energy.” DM