South Africa is strategically using the ICJ to build momentum and pressure against Israel, refusing to be constrained by the usual limitations attributed to the UN system and international law
Given the politicisation of multilateral governance institutions, for the most part, how a country positions itself in these institutions is largely a geopolitical choice and for most countries, it is a choice driven by national interest. Great powers use these systems in arenas of strategic competition or exploit inherent power asymmetries for self-serving ends. Middle powers, on the other hand, position themselves as the ‘voice of reason’. Some claim to represent the Global South, while others, like South Africa, draw on their historical experience to frame themselves as principled upholders of international law, as it did by filing a genocidal case at the International Court of Justice (ICJ) against Israel for its military actions in Gaza. Despite wanting to mend ties with Washington, South Africa has been consistent in its positioning with respect to international law, whether by laying out the legal arguments in its statement to the United Nations Security Council (UNSC) against the ‘judicial extraction’ of Nicolás Maduro by the United States (US) early this year or condemning the violation of international law (without explicitly picking a side) in the ongoing US-Israel war onIran and refusal to cut ties with Iran despite US pressure.
Some claim to represent the Global South, while others, like South Africa, draw on their historical experience to frame themselves as principled upholders of international law, as it did by filing a genocidal case at the International Court of Justice (ICJ) against Israel for its military actions in Gaza.
South Africa’s case against Israel is a multilateral contestation of international concern. Multiple states have aligned themselves, formally or informally, with either side of the case. Since the filing of South Africa’s application at the ICJ on 29 December 2023 to institute legal proceedings against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 18 countries have joined the application by submitting formal interventions at the ICJ, with the majority of the countries opposing Israel’s conduct. Of these 18 countries, only four, namely, the US, Hungary, Fiji, and Paraguay, support Israel. Interestingly, Germany, one of the early defenders of Israel that expressed its desire to file an intervention at the ICJ, formally withdrew its support recently as the March 2026 deadline for filing the intervention approached—clearly a sign to avoid further legal and geopolitical exposure as the momentum against Israel builds at the ICJ and as Germany faces separate genocidal scrutiny in the case brought by Nicaragua alleging that it aided Israel’s actions in Gaza through arms transfers and defunding of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Germany is the second-largest arms supplier to Israel, after the US.
On 26 January 2024, the ICJ ordered provisional measures in the case, instructing Israel to take all measures to prevent genocidal acts in Gaza and provide humanitarian assistance. It stopped short of ordering a ceasefire. Clearly, the enforceability constraints for this provisional order meant that it didn’t impact the military actions in Gaza. For the provisional measures, the ICJ had to determine prima facie jurisdiction, i.e. the court had to be satisfied that South Africa’s claim for the protection of rights of Palestinians under the Genocide Convention was plausible. It didn’t have to definitively determine any ‘genocidal intent’ at that stage. As of March 2026, the parties have filed their primary legal arguments and responses. The trial phase is yet to commence.
After repeated failures at the United Nations (UN) to meaningfully address the conflict in Gaza, South Africa’s recourse to the ICJ represents a strategic choice of a more effective medium.
In a conflicted world, human rights remain peripheral, until a country chooses to foreground them. After repeated failures at the United Nations (UN) to meaningfully address the conflict in Gaza, South Africa’s recourse to the ICJ represents a strategic choice of a more effective medium. While the ICJ may not have proved effective in halting the conflict through its provisional measures, it may yet serve as a more meaningful medium for post-facto accountability. South Africa clearly understands that the enforceability constraints do not negate the use of such institutions. It is unlikely to invest significant diplomatic, legal and political capital in initiating proceedings under the Genocide Convention, unless it has assessed that there was a credible basis to pursue such a claim against Israel for its actions in Gaza, especially given that the biggest challenge in such cases is to prove ‘genocidal intent’ - the highest legal bar in international law.
To date, there has been only one ICJ case, Bosnia v Serbia, where ‘genocidal intent’ has been established. While the 2007 ICJ ruling found that a genocide did occur in Srebrenica against the Bosnian muslim group in 1995, Serbia (as a state) was not found directly responsible for the genocide, except that it failed to prevent the crime of genocide. Even Ukraine’s application at the ICJ against Russia under the Genocide Convention was a unique reverse application of the convention—that Russia’s claim of genocide in Donbas was false, therefore it had no lawful basis for the invasion. ICJ’s provisional order asking Russia to cease its military operations had little to no impact, ultimately being vetoed at the UNSC by Russia. This makes South Africa’s case against Israel distinct—it requires the ICJ to determine whether Israel (as a state directly involved in Gaza) has perpetuated a genocide in the region. Interventions by several countries in the case demonstrate the case’s international relevance. Legal scholars have also described it as the “strongest ICJ case” to date. Even if the proceedings take years to reach a final verdict, they serve important functions by creating an authoritative legal record, compelling Israel to justify its actions publicly, on record, and subjecting them to sustained international scrutiny in a way regular diplomatic channels and media cannot. This evidentiary process—fact-finding, submissions and judicial engagement—has independent and historic value beyond the final verdict. It appears that South Africa understands the limitations of provisional orders and is instead focused on establishing that a genocide has occurred in Gaza or, at the very least, the Genocide Convention has been violated by Israel.
Seeking a reservation after joining would require a signatory to withdraw from the convention altogether and rejoin, which may not be the type of international messaging a state wants to send with regard to a genocide convention.
Israel withdrew from the compulsory jurisdiction of the ICJ in 1985, much like the US did in 1986. However, the Genocide Convention, unlike the Geneva Conventions (that cover war crimes), has an in-built jurisdiction clause, i.e. a compromissory clause (Article IX) that requires all signatories to refer disputes relating to the convention to the ICJ. Unlike many countries like the US, China, Russia, India, the United Arab Emirates (UAE), etc., which sought a reservation to this clause (i.e. exclusion of the automatic jurisdiction) at the time of joining, Israel did not seek such a reservation. As a primary advocate for the Genocide Convention, in the aftermath of the Holocaust, it may have been ill-fitting to do so. Seeking a reservation after joining would require a signatory to withdraw from the convention altogether and rejoin, which may not be the type of international messaging a state wants to send with regard to a genocide convention. This explains why South Africa filed the case only against Israel, followed by Nicaragua, which filed a genocidal case against Germany (which did not seek a reservation either) for aiding Israel through arms transfer. No cases were filed against the US, the largest arms supplier to Israel. It may seem puzzling why Nicaragua filed this case against Germany, but some reports claim that this move was in the aftermath of a UN report detailing human rights abuses perpetrated by the Nicaraguan government in its country.
The ICJ can be a powerful forum for shaping diplomatic discourse on matters of international law. South Africa’s use of this forum, while other diplomatic initiatives move in parallel (whether aligned or not, whether successful or not), demonstrates a strategic use of the ICJ to build momentum and pressure on a critical international issue. If great power multilateralism is about exploitation of systemic loopholes and power asymmetries, middle power multilateralism is about strategic autonomy and opportunism. South Africa saw an opportunity to set a historic precedent and pursued it with conviction. In South Africa’s own struggle against its apartheid regime, the ICJ played an important role through a 1971 advisory opinion by delegitimising the regime’s occupation of South West Africa (Namibia) and imposing an obligation on the UN member states to recognise the illegality and disassociate themselves from the government of South Africa. This helped the anti-apartheid movement gain momentum, provided a formal basis for UN member states to impose sanctions and increased the moral cost of association. At the time, the UNSC was neither as fractured nor fundamentally divided on the issue, so it adopted a resolution giving effect to the ICJ advisory opinion. Today, the circumstances are different, but it is this very contrast that arguably makes the ICJ’s role even more relevant in the Gaza case.
If great power multilateralism is about exploitation of systemic loopholes and power asymmetries, middle power multilateralism is about strategic autonomy and opportunism.
South Africa is not only seeking to fill the “moral vacuum” left by the great powers, the very architects of these institutions, but also to help set a precedent by refusing to be constrained by the usual limitations attributed to the UN system and international law. South Africa v Israel is also deeply symbolic, as both states carry historic legacies of profound human rights violations, yet now find themselves on opposing sides of a genocide case.
Lavanya Mani is a Fellow at the Observer Research Foundation.
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Lavanya Mani is a Fellow at ORF, where she plays a key role on the curatorial team, shaping the thematic direction and programming of ORF’s ...
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