Palestinian resistance fighters enter the Israeli side of the destroyed border fence in Gaza City on 7 October 2023. Copyright: Hani Alshaer / Anadolu Agency via Getty Images.
Palestinian resistance fighters enter the Israeli side of the destroyed border fence in Gaza City on 7 October 2023. Copyright: Hani Alshaer / Anadolu Agency via Getty Images.

To the lay historian, the points along the arc of Palestinian liberation associated with “progress” all occurred at outposts of the Global North: Camp David, Oslo, and now, perhaps, The Hague. South Africa’s case against Israel before the International Court of Justice has been ascribed a ‘circuit-breaking’ quality, though its progress so far is modest and its driving question—has Israel committed genocide?—will remain unanswered for some time. Now, as the proceeding succumbs to the slumber of the Court’s case management timeframes, we are offered a chance to look over the horizon, toward its possible fate.

The proceedings have had a breathless, frenetic infancy. South Africa’s case contends that Israel has violated its obligations to prevent and punish the commission of genocide during its accelerated invasion of Gaza following Hamas’ attack on Israeli territory on “October 7.”1 It brings its case not as a specially affected state, but as a party to the Genocide Convention seeking to enforce that treaty’s obligations against another party. South Africa’s standing to do so would have once been doubted; though it is now uncontroversial that this course is available under international law.2 On 26 January 2024, the Court ordered “provisional measures” of narrower compass than South Africa had sought,3 requiring Israel to ensure its ongoing compliance with its obligations under the Genocide Convention, and to enable the provision of urgent humanitarian assistance to Palestinians in Gaza.4 The Court did not order a ceasefire. South Africa twice sought further provisional measures, with the Court acceding in part on 28 March 2024. Again no ceasefire was ordered, although seven of the sixteen judges opined that they would have supported such an order.

Against this background, we can draw three observations about the possible fate and significance of the proceedings in delivering Palestinian self-determination. The first is that even a favourable outcome to the proceeding will scarcely assist to achieve an end to genocide in Gaza. The likely passage of years until any resolution on the merits will dilute the practical force of a finding of genocide. By then, Israel will have taken up other strategies for depredation and annexation, which will invite their own legal scrutiny and further belated judicial rulings down the line.

To know this, we need only look backwards. Most of the material conditions of Israeli settler colonialism have been tested before international courts at some point. Every available (legal) avenue has been pursued. In 2004, the ICJ gave an ‘advisory’ opinion (upon request by the UN General Assembly) that Israel’s construction of a security fence in the West Bank and East Jerusalem and its attempts to alter the demographic composition of Palestine violated international humanitarian law (“IHL”) norms governing occupation, Palestine’s right to self-determination,8 and various protections under international human rights law.9 The Court, too, observed that Israel could not rely on its right to self-defence to justify construction of the wall;10 and that its construction created a fait accompli on the ground that was tantamount to de facto annexation.11 The Court ordered, inter alia, that construction cease and that the wall be dismantled. Israel did not comply and continues to pursue its settlement activities with impunity.

In 2021, the International Criminal Court (“ICC”) decided, after six years of preliminary examination, to commence an investigation into war crimes committed by individuals in Palestine since 13 June 2014. This followed a determination that the Court had jurisdiction to do so, on the basis that Palestine was a “State” for the purposes of the Court’s founding treaty, the Rome Statute.12 But the Court could not—and did not—determine whether Palestine was a State for all purposes under international law.13 It acknowledged the ICJ’s 2004 advisory opinion and endorsed its conclusions in some respects (including Palestine’s entitlement to self-determination).14 Investigation will take the best part of a decade;15 fact-finding will be enormously difficult amid Israel’s monopoly on access to Palestine and certain non-cooperation; and the Court will likely be unable to execute an arrest warrant on any Israeli who is ultimately charged.

Portion of the wall separating the West Bank and East Jerusalem. Copyright: User “shereenshafi” on Flickr. Accessed 30 March 2024.

There are pending proceedings, too. There is an inter-state complaint by Palestine against Israel to the Committee administering the Convention for the Elimination of Racial Discrimination, alleging a violation of the prohibition on apartheid.16 Palestine brought an ICJ proceeding against the United States in 2018, alleging that the relocation of their embassy in Israel to Jerusalem violated treaty obligations governing consular relations. No decision on jurisdiction has yet been made. Countless fact-finding missions by human rights bodies have also presented evidence of Israel’s grave and persistent breaches of IHL and human rights law in the Palestinian territories since 2000.17 Finally, in December 2022, the UN General Assembly submitted a request for an advisory opinion on the consequences of various Israeli “policies [and] practices”18 in Palestinian territory under IHL, human rights law, the UN Charter (including the prohibition on the use of force), General Assembly and Security Council resolutions, and the Court’s 2004 advisory opinion.19 The scope of this proceeding may appear the broadest so far, but the Court has at times been inclined to reformulate and narrow such open-ended questions.20 At any rate no opinion is imminent, and when it does arrive Israel’s “policies and practices” will have likely accelerated and morphed.

Seen in this light, the South Africa proceeding is but a node in a fragmented litigation strategy—what is sometimes odiously described as ‘lawfare.’ By its nature, a court’s jurisdiction is limited to resolving the dispute before it. As framed, South Africa’s claim alleges breaches of the prohibition against genocide. It does not reagitate Israel’s obligations under IHL, including to avoid indiscriminate loss of civilian life. It does not consider the criminal liability of Israeli officials for the commission of war crimes or crimes against humanity, nor Israel’s state responsibility for authorising that conduct. Nor does it, in express terms, call for inquiry into ongoing violations of the Palestinian right to self-determination or statehood. These issues have been or will be ventilated to certain extents in separate proceedings.

This flows onto a second observation. Against this history of litigation, one aspect to South Africa’s proceeding is truly unprecedented: the claim of genocide. One tool from which Israel draws discursive power is its emotive manipulation of international legal concepts. The Holocaust, being an “intense national preoccupation” and the “basis for Israel’s identity,”21 renders genocide the concept most susceptible to manipulation. Zionism attributes the enactment of the Genocide Convention to a singular desire to avoid any repeating of the Holocaust—only a partial truth as Raphael Lemkin, the moving force behind the Convention and inventor of the word ‘genocide,’ had in mind other genocides too.22 Zionism positions the Holocaust as the “paradigmatic example” of genocide,23 against which any later allegation falls to be assessed and which Zionism says Palestine wishes to reprise. By this exploitation of the Holocaust, which Pankaj Mishra traces back to the former Israeli Prime Minister, Menachem Begin,24 Zionism can operate in what Boaz Evron described as a state of complete freedom from “any moral restrictions, since one who is in danger of annihilation sees himself exempted from any moral considerations which might restrict his efforts to save himself.”25

The separate opinion of Judge ad hoc Barak, Israel’s appointee to South Africa’s proceeding—dissenting, naturally—is replete with textbook narrative manipulation of this kind. Before deigning to consider the provisional measures application before the Court, Barak gratuitously relates his own Holocaust experience,26 the relevance of which, he says, is that genocide is “more than just a word” to him; it is “deeply intertwined with [his] personal life experience.”27 This makes him “deeply aware of the importance of the existence of the State of Israel.”28 Later, he suggests that applying the Genocide Convention to Israel’s conduct in Gaza would “dilute the concept of genocide.”29

Dheisheh Refugee Camp, 1959. Copyright: UNRWA archive.

This brings me to my final observation, as to the clash of narratives beneath it all. Zionism has long been able to outwardly project its self-image with monolithic coherence. As Dylan Saba observes, Zionism has mastered the “language of minoritized grievance” so that its exercises of State power, however excessive, are to be understood as against its “transhistorical” narrative of anti-Semitism.33 In turn, international law has reified this narrative, conferring on Israel the legal incidents of statehood and the corresponding advantages of incumbency. And so, in one breath, Israel can invoke the customary right to self-defence and deny its availability to any Palestinian entity. Where the decolonial animus within international legal scholarship holds the law against Israel, it then resorts to emotive manipulation of the kind which, for instance, leads it to describe South Africa’s proceeding as “blood libel.”34

The Zionist hold over history draws greater strength, still, from Israel’s ongoing campaign to fragment every aspect of the Palestinian experience: their territories, families, possessions, infrastructure, and daily lives. Physical, cultural, and historical fragmentation has been a technique repeatedly used in the pursuit of the Zionist goal to annex and eradicate Palestine.

How, then, does the current proceeding fit in?

On the one hand, it bears contemplating whether the proceeding in its present form and scope invites further fragmentation of the Palestinian narrative. Because the incumbent territorial and political arrangements from which Israel benefits have been enshrined and legitimised by law, they can only be unwound with a countervailing force of law. After all, law supplies the analytical vocabulary we use to make sense of the dispute—rights, genocide, apartheid, self-determination, self-defence—and ascribes or withdraws political and moral legitimacy.

However, South Africa’s case can only legally proceed on a temporally and experientially miniscule fragment of the Palestinian story: the commission of genocide, one particular legal concept, over a finite period of time from late 2023. Other parts of the Palestinian story can only be presented insofar as they are relevant to the precise fragment under the microscope.

Further, that fragment is being conveyed through an intermediary state. This is a forensically apt arrangement, which circumvents any complaint about Palestine’s non-statehood; but it surely carries some symbolic cost to Palestine’s agency and its burgeoning attempts to participate as a state in international fora. The very same limitations constrain each past or pending piece of international litigation. One wonders, then, how we can unwind a state of affairs ossified over 80 years by procuring rulings which do not question, and indeed perpetuate, the generative injustices which lie beneath—the Balfour Declaration, the end to the British mandate, the Nakba?35 Are the cases not litigating the expressions of Zionism and not their source?

This is a continuing challenge for the Palestinian political program. But there is reason to hope that, perhaps, the cumulative effect of this strategy will be to eventually uproot the Zionist narrative and produce some change to material conditions.

As Mishra observes:37

All these universalist reference points – the Shoah [Holocaust] as the measure of all crimes, antisemitism as the most lethal form of bigotry – are in danger of disappearing as the Israeli military massacres and starves Palestinians, razes their homes, schools, hospitals, mosques, churches, bombs them into smaller and smaller encampments…

And so, Sisyphean as it may seem, there is something to be gained from this exercise. We will continue to prise open the Court’s maw, and take from it whatever fragments we can. And from those fragments to which Israel reduces us, we will piece together our own narrative, and “turn the whole hegemonic picture upside down.”38

Fragments: Palestine in the International Court
00:00 - 00:00
3 April 2024
Legal History by G.K.

G.K. is a lawyer, lecturer and writer. He has studied international law in the United Kingdom and Australia, and published in several leading international law journals, including Journal of International Dispute Settlement and Leiden Journal of International Law. His research focuses on the history of international law as a means for the expression of colonial power and pillage.

...7.” [1]
Our vocabulary of the subsequent obliteration of Gaza does not seem to countenance a reference to “October 8,” “October 9” or “October 10,” though by any metric of death and depredation, each day that followed would justify a like appellation. [2]
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024 (“South Africa v. Israel, Provisional Measures”), Separate Opinion of Judge Xue, at para 4. In 1962, the Court found that Ethiopia and Liberia were not entitled to bring proceedings against South Africa for breaching its obligations as Mandatory Power in South West Africa. See South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328. Since that time, the Court has come to accept that parties to a multilateral treaty have a procedural right (i.e. ‘standing’) to enforce certain obligations in those treaties – those of a erga omnes partes character, in respect of which each state party has an interest in compliance in any given case – against any other party, without the need to be specially affected. See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68. This was recently affirmed by the Court in 2020 in proceedings brought by The Gambia against Myanmar for alleged violations of its obligations under the Genocide Convention. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 17, para. 41.
...sought, [3]
This turned on a prima facie assessment of the limited available evidence as indicating that the asserted rights of Palestinians in Gaza to be protected from genocidal acts were “plausible” (though not that any genocidal acts had in fact occurred). See South Africa v. Israel, Provisional Measures, p. 18, para. 54.
...Gaza. [4]
South Africa v. Israel, Provisional Measures, pp. 25-26, para. 86.
...abundant. [5]
See, eg, Milena Sterio, ‘The ICJ’s Provisional Measures Order in the South Africa v. Israel Case: Unsurprising; Politically and Legally Significant’, Opinio Juris, 27 January 2024,; Yussef Al Tamimi, ‘Implications of the ICJ Order (South Africa v Israel) for Third States’, EJIL:Talk!, 6 February 2024,; Enzo Cannizzaro, ‘When the Reasons are More Telling than the Ruling: The Order of the ICJ in South Africa v. Israel’, EJIL:Talk!, 7 February 2024,; Jan-Phillip Graf, ‘Erga Omnes Partes Standing and Procedural Issues in South Africa v Israel’, EJIL:Talk!, 1 February 2024,; John Quigley, ‘Legal Standard for Genocide Intent: An Uphill Climb for Israel in Gaza Suit’, EJIL:Talk!, 14 March 2024,
...(supposedly) [6]
See, eg, Application instituting proceedings, 29 December 2023 at 35, See also ‘“Israel’s apartheid must end”, South Africa says at ICJ hearing’, Al-Jazeera, 20 February 2024,, quoting Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, as describing Israel’s occupation as “indistinguishable from settler colonialism.”
...Accords) [7]
Alberto Toscano, ‘Undoing Oslo’ Sidecar: New Left Review (22 March 2024),
...self-determination, [8]
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I) (“Israeli Wall Advisory Opinion”), p.184, para. 123. [9]
Israeli Wall Advisory Opinion, p. 192, para. 133-134.
...wall; [10]
Israeli Wall Advisory Opinion, p. 192, para. 139.
...annexation. [11]
Israeli Wall Advisory Opinion, p. 184, para. 121.
...Statute. [12]
Pre-Trial Chamber I, ‘Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021 (“PTC-I Ruling of 5 February 2021”) at 91, 102, 112. [13]
PTC-I Ruling of 5 February 2021, 93, 102-103, 108.
...self-determination). [14]
PTC-I Ruling of 5 February 2021, 121-122.
...decade; [15]
This is a product of various factors, including the Court’s resource constraints, its bloated caseload (with almost 20 ongoing investigations), and difficulties in investigators being permitted access to Occupied Palestinian Territories and safely conducting interviews with witnesses: see Tyler McBrien, ‘Where Does the ICC Palestine Investigation Stand?’ Lawfare, 16 October 2023,
...apartheid. [16]
As to which, see David Keane, ‘Palestine v Israel and the Collective Obligation to Condemn Apartheid under Article 3 of ICERD’ (2022) 23(2) MJIL 251.
...2000. [17]
See, eg, UN Economic and Social Council Commission on Human Rights, Report of the human rights inquiry commission established pursuant to Commission resolution S-5/1 of 19 October 2000, E/CN.4/2001/121 (16 March 2001),, paras. 50 and 51; Human Rights Council, Report of the high-level fact-finding mission to Beit Hanoun established under Council resolution S-3/1, A/HRC/9/26 (1 September 2008),, paras. 72, 75 and 76; Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48 (25 September 2009),, paras. 36, 55, 60, 382, 391-392, 522, 629, 1026-1027, 1214-1215, 1883, 1888-1093, 1905, 1927 and 1929; Human Rights Council, Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/52 (24 June 2015),, paras. 26, 37, 44-45, 50-53 and 55-58; 1 Human Rights Council, Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/CRP.4 (24 June 2015),, paras. 226, 293-294, 340-342, 348, 418, 576, 671; 2 General Assembly, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, A/76/433 (22 October 2021),, para. 32; Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, A/HRC/44/60 (22 December 2020),, para. 60; Committee on the Elimination of Racial Discrimination (‘CERD’), Concluding Observations on the Combined Seventeenth to Nineteenth Reports of Israel, CERD/C/ISR/CO/17-19 (27 January 2020),, para. 23. These are summarised in Application instituting proceedings, 29 December 2023 at 30 and 35.
...practices” [18]
The “policies” and “practices” the subject of the request for an opinion include the ongoing violation of the right to self-determination; and the occupation, settlement and annexation of Palestinian territory (including attempts to alter the demographic composition and status of Jerusalem).
...opinion. [19]
See Request for Advisory Opinion regarding the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, 18 January 2023,
...questions. [20]
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), pp. 423-426, paras. 49-56.
...identity,” [21]
Pankaj Mishra, ‘The Shoah after Gaza’ (2024) 46(6) London Review of Books.
...too. [22]
Including the Armenian Genocide of 1915: see Peter Balakian, ‘Raphael Lemkin, Cultural Destruction, and the Armenian Genocide’ (2013) 27(1) Holocaust and Genocide Studies 57-89, As one scholar observed at the time of the Convention’s adoption, “though the word ‘genocide’ is new, the practice is an old one: the destruction of Carthage by the Romans, the extermination of the Indians in North America, pogroms in Czarist Russia, the Armenian massacres in Imperial Turkey are just a few examples”: Josef L Kunz, ‘The United Nations Convention on Genocide’ (1949) 43(4) AJIL 738-746.
...genocide, [23]
Darryl Li, ‘The Charge of Genocide’, Dissent, 27 January 2024, <>.
...Begin, [24]
Pankaj Mishra, ‘The Shoah after Gaza’ (2024) 46(6) London Review of Books.
...himself.” [25]
As quoted in Pankaj Mishra, ‘The Shoah after Gaza’ (2024) 46(6) London Review of Books.
...experience, [26]
South Africa v. Israel, Provisional Measures, Separate Opinion of Judge ad hoc Barak at 4-5, 8, 47.
...experience.” [27]
South Africa v. Israel, Provisional Measures, Separate Opinion of Judge ad hoc Barak, 6.
...Israel.” [28]
South Africa v. Israel, Provisional Measures, Separate Opinion of Judge ad hoc Barak, 7.
...genocide.” [29]
South Africa v. Israel, Provisional Measures, Separate Opinion of Judge ad hoc Barak, 41.
...crimes” [30]
See, eg, William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press, 2nd ed, 2009).
...event” [31]
As then-President of the UN General Assembly, the Attorney-General of Australia Dr HV Evatt, had described the adoption of the Genocide Convention: relayed in Nehemiah Robinson, The Genocide Convention: A Commentary (Institute of Jewish Affairs, 1960) p. 43.
...within). [32]
See South Africa v. Israel, Request for the modification of the Order of 26 January 2024 indicating provisional measures, Separate Opinion of Judge ad hoc Barak at 6: “The Court’s reasoning today is far removed from the Genocide Convention and based primarily on humanitarian considerations…”.
...anti-Semitism. [33]
Dylan Saba, ‘Tectonic Shifts: A conversation with Darryl Li’, The Baffler, 26 October 2023, <>.
...libel.” [34]
Anthony Deutsch and Stephanie van den Berg, ‘Israel, South Africa trade barbs on eve of genocide case’, Reuters, 10 January 2024,
...Nakba? [35]
As to which injustices see, eg, Shahd Hammouri, ‘A Forgotten Detail: The Right of Return was a Condition of the Establishment of the State of Israel’, Opinio Juris, 11 March 2024,; John Quiqley, The Case for Palestine: An International Law Perspective (Duke University Press, 1990) pp. 23-39.
...mania.” [36]
Quoting Tony Judt in Carolyn O’Hara, ‘Israel, unruly teenager’ Foreign Policy (23 May 2006),
...observes: [37]
Pankaj Mishra, ‘The Shoah after Gaza’ (2024) 46(6) London Review of Books.
...down.” [38]
Alberto Toscano, ‘Undoing Oslo’ Sidecar: New Left Review (22 March 2024),, quoting Haidar Eid, Decolonising the Palestinian Mind (LeftWord Books, 2023).