South Africa instituted a case against Israel at the International Court of Justice (ICJ) in the Hague in late December 2023, claiming Israel was violating the Convention on the Prevention and Punishment of the Crime of Genocide through its actions in Gaza, and requesting provisional measures. Human rights law scholar Magnus Killander explains the process and why it’s so slow. International law, including the ICJ’s provisional measures, are binding on states. However, international law does not enforce itself and all states have an obligation to attend to the situation.
Why could it take until 2028 to get a final decision?
On 5 April 2024, the ICJ set two deadlines. It wanted to receive memorials, that is the full arguments related to the case, from South Africa by 28 October 2024 and counter-memorials from Israel by 28 July 2025. Following a request by Israel, the court on 14 April 2025 extended the time for submission of Israel’s counter-memorials to 12 January 2026.
It is likely that Israel, in a bid to delay the proceedings, will file preliminary objections, such as dealing with the jurisdiction of the ICJ to hear the case. South Africa would then have a few months to respond. Then an oral hearing on preliminary objections would be held, probably towards the end of 2026 or early 2027.
A few months after the hearing, the ICJ would deliver a judgment on the preliminary objections. Preliminary objections are unlikely to be successful, so the ICJ would then set a new deadline for Israel’s counter-memorial on the merits, which might again be extended. When Israel’s counter-memorial has been submitted, there may be a request from South Africa for a reply and from Israel for a rejoinder.
At some point, the court would consider requests from states to intervene, and set timelines for their submissions.
So far, the following states have filed requests to intervene: Nicaragua, Colombia, Libya, Mexico, Palestine, Spain, Türkiye, Chile, the Maldives, Bolivia, Ireland, Cuba and Belize. Nicaragua subsequently revoked its request.
After the written submissions, the ICJ will schedule an oral hearing. Following this the judges will write the final judgement on the merits of the case. The judgment will be hundreds of pages of detailed factual and legal analysis with separate opinions from many of the 16 judges. The court has 15 permanent judges (including South Africa’s Dire Tladi) and an Israeli ad hoc judge in the South Africa v Israel case.
It is this final judgement that will decide whether Israel breached the Genocide Convention through its actions in Gaza.
Given these lengthy procedures, it is unlikely that the final judgement in the case will be handed down before 2028.
Does it usually take this long?
Yes.
The South Africa v Israel case can be compared to the Gambia v Myanmar case. In November 2019 The Gambia brought the case that Myanmar’s treatment of the Rohingya constituted genocide.
The ICJ handed down a judgment on preliminary objections on 22 July 2022. A hearing on the merits is yet to be scheduled. The case is likely to be concluded in 2026.
The first case brought to the ICJ under the Genocide Convention, Bosnia and Herzegovina v Serbia and Montenegro, was submitted in 1993. The final judgment was delivered in 2007.
The second case, Croatia v Serbia, was submitted in 1999 and the final judgment was delivered in 2015.
The ICJ has so far held a state accountable for genocide in one case.
In its 2007 case, it held Serbia and Montenegro responsible for the 1995 genocide in Srebrenica. The ICJ case had limited impact. However, it should be noted that Ratko Mladić, a Bosnian Serb military leader, was arrested in Serbia in 2011 and transferred to the International Criminal Tribunal for the Former Yugoslavia as called for in the ICJ judgment. In 2017 he was convicted by the tribunal for the genocide in Srebrenica, a judgment which was confirmed on appeal in 2021, 26 years after the Srebrenica massacre.
In the two cases against Serbia, the court held that, apart from the Srebrenica massacre, the mens rea, the “specific intent” to destroy a group or part of a group, had not been proven. The main difference with the Myanmar and Israel cases is that the state of Serbia did not participate itself directly in the conflict.
In both the Gambia v Myanmar and the South Africa v Israel final judgments, the main discussion will likely be in relation to whether the mens rea requirement has been met.
In my view most of the ICJ judges will find that both acts of genocide and incitement to genocide have taken place.
What’s the point then?
The orders of the ICJ are binding on states, but are often ignored. This is in line with the general difficulty of enforcing international law, in particular international human rights law and international humanitarian law.
Only political pressure from outside and inside Israel will bring about change, as it is clear that the Israeli government considers only itself as the judge of its actions. In addition, enforcement measures by the UN security council are not possible given the position of the United States. It is a permanent member of the council, with veto power, but does not want to criticise Israel and is its main supplier of weapons.
The issue of Palestine has also been raised in a case before the ICJ that does not directly involve Israel. In March 2024, Nicaragua instituted a case against Germany in relation to its export of weapons to Israel, which it argued facilitated genocide in Gaza. On 30 April 2024, the court decided not to issue provisional measures against Germany since it had shown the measures it had taken to restrict weapons exports to Israel following the invasion of Gaza.
It was only in August 2025, however, that Germany declared it would suspend the export of weapons that could be used in the war in Gaza.
Another international court based in The Hague is also trying to hold violators of international crimes to account. The International Criminal Court (ICC) deals with international criminal responsibility as opposed to state responsibility – the purview of the ICJ. Israel’s prime minister Benjamin Netanyahu and former defence minister Yoav Gallant have been indicted by the ICC. The three Hamas leaders against whom the ICC prosecutor sought indictments have been killed by Israel.
It is unlikely that we will see Netanyahu in the dock in The Hague since he avoids travelling to countries that are parties to the ICC Statute and would thus be obliged to surrender him to the ICC.
Of course, the ICC is not the only possibility in relation to criminal accountability. For example, prosecutors in Sweden are investigating war crimes in Gaza.
The wheels of international justice grind exceedingly slowly and will never be sufficient on their own to bring about lasting change.
And the latest developments?
The provisional measures issued by the ICJ on 26 January 2024, 28 March 2024 and 24 May 2024 remain in force and are binding. These included the provision of
urgently needed basic services and humanitarian assistance.
Clearly this measure and and others have not been complied with.
South Africa has not requested any additional provisional measures since the last ones were issued in May 2024. However, advisory proceedings provide another way to address the situation.
On 23 December 2024, the UN general assembly requested an advisory opinion on the obligations of Israel in relation to the presence and activities of the United Nations, other international organisations and third states in relation to the Occupied Palestinian Territory. Hearings were held from 28 April to 2 May 2025. The advisory opinion is likely to be delivered soon and address the issue of access to humanitarian aid.
This is the third advisory opinion proceedings dealing with Palestine. In December 2003, the UN general assembly requested an advisory opinion on Israel’s construction of a wall separating it from the occupied territories in the West Bank. The advisory opinion of the ICJ was delivered on 9 July 2004, finding that the construction of the wall was in violation of international law. On 19 January 2023, the UN general assembly requested an advisory opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The court delivered its advisory opinion on 19 July 2024, confirming its view that the occupation was illegal and that Israel had an obligation to leave the occupied territory.
Magnus Killander does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
