Stanford scholars analyze South Africa’s case against Israel

Stanford scholars analyze South Africa’s case against Israel

The world — and Stanford — watched closely as the International Court of Justice (ICJ) heard South Africa’s case against Israel earlier this month, which accused Israel of a “pattern of genocidal conduct” against Palestinians in Gaza.

South Africa’s claims were advanced in an 84-page document that, citing international law, argued genocidal intent can be inferred from statements made by Israeli government officials and the nature and conduct of military operations. It pointed to the 21,100 Palestinians dead, 55,243 wounded and 1.9 million displaced in the Gaza Strip, as reported at the time by the Palestinian Health Ministry. The country urged the Court to implement emergency measures to halt all Israeli military operations and provide humanitarian aid to Palestinians in the Gaza Strip.

Israel strongly denied the allegations: During a defense hearing, Israeli legal advisor Tal Becker said that South Africa’s case was an attempt “to thwart Israel’s inherent right to defend itself” after the Oct. 7, 2023 Hamas attack on Israel, in which around 1,200 people were killed and 240 taken hostage.

“From the Israeli perspective, Oct. 7 was just traumatically different,” said Allen Weiner J.D. ’89, director of the Stanford Center on International Conflict and Negotiation and senior lecturer at Stanford Law School. “The scale of the harm that Hamas was able to inflict on Israel was, I think it’s fair to say, unprecedented in terms of Israel’s conflict with Hamas.”

Joel Beinin, emeritus professor of Middle East history, said the harm Hamas inflicted was two-fold: both the lives lost on Oct. 7, and also the exclusion of the militant group’s involvement in any talks on an international solution.

“They undertook this action in which they committed serious atrocities, violations of international law and war crimes,” Beinin said. “Oct. 7 meant that Hamas won’t be part of any kind of international effort to resolve the question of Palestine.”

During South Africa’s testimony, which lasted three hours, lawyers and legal experts argued that Israel’s military campaign was more than just a war against Hamas. 

“The level of Israel’s killing is so extensive that nowhere is safe in Gaza,” said South African lawyer Adila Hassim in court. “This killing is nothing short of destruction of Palestinian life.”

Weiner found the case “unusual,” given that South Africa is not directly involved in the conflict.

“It’s not as if Israel is allegedly perpetrating genocide against South Africa,” Weiner said. “Any state could have brought this claim.”

Beinin, on the other hand, said South Africa’s role in the case was “not surprising,” considering that “South Africa is a longtime ally of the Palestinian Liberation Movement that goes all the way back to the days of Apartheid.” He added that only countries are able to bring cases to the ICJ, “not individuals, not even political parties and social movements like Hamas.”

Alisha Service ’26, a participant in the Sit-In to Stop Genocide, found South Africa’s case to be a “source of inspiration” given its history with apartheid.

“This country knows its history and they see its history somewhere else,” Service said. “I think that’s why so many South Africans are so ardent in their criticisms against Israel.”

During the testimony, South Africa’s delegation presented alleged evidence of intent, what Beinin called the “most difficult part of proving that a genocide has happened.” They argued that both the military campaign in Gaza and various quotes from Israeli officials, including Israeli Prime Minister Benjamin Netanyahu, showed “genocidal intent” toward Palestinians.

What the Court has to decide, Beinin said, is if there is “a direct connection between those statements of genocidal intent … and the actions that the Israeli army has done in the Gaza strip.”

In the Court, the Israeli defense team denied the accusations. Becker said that South Africa’s case was “a profoundly distorted factual and legal picture,” deliberately excluding the role of Hamas behind Israel’s military offensive in Gaza.

Andrei Mandelshtam ’25, co-president of the Stanford Israeli Association, echoed the idea that the accusations were baseless.

“I think it’s a very perverse definition of genocide that they’re using to launch the court case,” Mandelshtam said. “The intent of the decision to launch the court case is more so a form of Holocaust inversion, blaming Jews for the epitome of crimes committed against them.”

While preliminary hearings were completed earlier this month, the case is still within its provisional measures phase. Weiner said it could take “many years” for the full case to be briefed and ruled on in the ICJ’s “complex” litigation process.

“Whatever decision we get in response to the provisional measures application … is unlikely to produce any definitive answer to the basic question at the heart of South Africa’s case, which is whether Israel is perpetrating genocide in Gaza,” Weiner said.

Even if a provisional emergency measure is granted for a ceasefire and humanitarian aid, Service said she has “minimal faith that Israel will comply.” Weiner said that no matter the outcome, the power lies in the United Nations Security Council, which has the authority to enforce the ICJ’s measures and will likely rule in Israel’s favor.

“We have to recognize that if the Court were to rule against Israel in some kind of way … the Security Council would not enforce it because the United States would veto any proposed resolution,” Weiner said.

Mandelshtam said South Africa’s disregard for international law in the past, such as failing to abide by the International Criminal Court’s calls to arrest visiting former Sudanese President Omar al-Bashir in 2015, shows there are external interests at play.

“If we look at South Africa, they’ve launched the court case, but they haven’t even valued the Court’s opinions in the past,” Mandelshtam said. 

Though the legal gravity of the ICJ case may be contested, Beinin said, the public scale of the processions has an impact on how the world will view the conflict moving forward.

“Legal arguments are going to be made, evidence is going to be presented, all of that is going to be available for public consumption,” Beinin said. “It becomes another venue for the argument — but a very high-profile venue that governments, legal scholars and others in the world are going to pay attention to.”

On Friday, the ICJ is expected to deliver an interim ruling, possibly in favor or against a ceasefire.

About the author

Leave a Reply

Your email address will not be published. Required fields are marked *