Whither the Global Governance of Protecting Civilians? An Initial Assessment of the ICJ’s Decision on South Africa v. Israel of 26 January 2024

Analysis
Matthew Tentler
14
February 2024

The atrocious events of 7 October 2023, when Hamas militants broke through the gates encircling the Gaza Strip and committed unspeakable crimes against Israeli civilians, caused an outcry and near-unanimous condemnation around the globe.

The attacks were of a particularly heinous nature and have left an indelible mark on Israeli society. The abduction of 240 Israeli civilians and Hamas’ tactics of using civilians (and hostages) as “human shields” add further crimes and human rights violations to the situation. The Israeli government has since undertaken military operations in the Gaza Strip with the official intention to eradicate all of Hamas and to remove the terrorist threat emanating from it. Yet, the level of devastation the Israeli government has imposed upon the Palestinian civilian population of Gaza has generated world-wide calls for restraint, and most recently, allegations that the Israeli government has violated its obligation to uphold the principles of the Convention on the Prevention and Punishment of the Crime of Genocide, resulting in South Africa filing an application with the International Court of Justice (ICJ). The developments since October 2023 add additional strains on the legal and political tools for the protection of civilians.


On 26 January 2024, the International Court of Justice found that the South Africa v. Israel case falls within the Court’s jurisdiction and granted five provisional measures, mostly notably that the Israeli leadership must act in accordance with the Genocide Convention, prevent and punish any incitement to genocide, and facilitate humanitarian assistance to the Palestinians of Gaza. The decision by the Court is a notable development for both the immediate needs of the Palestinians suffering en masse, as well as for the general development of the global governance of the protection of civilians. This goal has been enshrined in International Humanitarian Law, the Convention on the Prevention and Punishment of the Crime of Genocide, the Responsibility to Protect, and the Protection of Civilians. The Court’s ruling contributes to the consistent advancement of these codified principles. Yet, the situation in Gaza, the continued operation of Hamas as well as the ongoing military campaign by the Israel Defence Forces are but the latest in a series of many concerning incidents of serious violations of international humanitarian law and the protection of civilians. It requires concerted effort by member states, regional and international organisations to reinforce legal, political and operational tools to prevent a further deterioration of the global governance of the protection of civilians. While the ICJ’s initial decision and provisional measures are an important signal to strengthen and reinforce legal tools for the protection of civilians a reinforcement of member state commitments to the actual prevention and sanctioning of large-scale human rights violations is urgently needed.

This GGI Analysis will offer an initial reflection on the ruling of the International Court of Justice on the case of South Africa vs Israel. It will place the ruling in the wider context of global norms for the protection of civilians and offer a first assessment of the significance of the ICJ’s ruling as well as its potential implications for the situation in Gaza and for the global goal for the protection of civilians more generally.

Download PDF