In the wake of last week’s pathbreaking International Court of Justice order of provisional measures concerning alleged genocide in Gaza, much reaction has rightly addressed the ramifications for international diplomacy, Israel, South Africa, the United States and the Palestinian people. Perhaps understandably, there has been less immediate attention to what the case teaches about the practice of “strategic litigation.” But there is much to learn. For whatever else that overused phrase means, its central element – the use of litigation to advance a set of social, policy, or political goals through a deliberate plan – was certainly in evidence in The Hague over the past month.
South Africa’s motives for launching the case in the last week of December 2023 were apparently several. They included the ANC’s long-standing solidarity with the Palestinian cause; the relevance of South Africa’s own storied history of using law, street protest and international pressure to overcome apartheid; and the opportunity – in a world riven by double standards – to elevate the cause of “the Global South” against a key Western ally. While some have cited the country’s “fierce determination to stand up for justice and … what is right,” others have noted its prior inconsistent commitment to justice including in respect of the failure to arrest on its own territory Sudanese President Al Bashir, its response to Russia’s invasion of Ukraine, and its approach to the International Criminal Court. What’s more, a number of South African officials may have seen the ICJ as an opportunity to divert domestic public attention from ongoing problems of corruption, inequality, and economic under-performance.
For these and perhaps other reasons, an ICJ case grounded in the Genocide Convention offered a chance to use international law and institutions in the service of broader objectives – and South Africa seized it.
And while it will likely take years for the case to reach a conclusion, the litigation itself has already shown — in three key ways — the power of strategic litigation to swiftly generate meaningful impacts, including long before final judgment.
First, from the moment South Africa’s submission was filed, the case captured public attention and transformed the previously esoteric ICJ into a front-page forum for a genuinely global discussion about the most pressing issue of the day. The non-stop media coverage, widespread viewing of oral arguments and live broadcast of President Joan Donaghue’s reading of the Court’s provisional ruling modeled, at the international level, Hannah Arendt’s vision of constitutional courts as “arenas” for public debate about “moral and political” issues. Though it narrowed the scope of issues the judges could address, the Genocide Convention provided a common language, agreed by the vast majority of the world’s states, with which to assess the highly contested facts in Israel and Palestine. Taken together, the extraordinary attention given to South Africa’s submission, Israel’s response and the Court’s ruling embodied the potential of what former German Constitutional Court judge Susanne Baer has termed “critical lawyering” to foster more informed public dialogue and understanding.
Second, the ICJ litigation should put to rest overdrawn criticisms about human rights activism more generally that “naming and shaming” no longer work. Such claims overlook a growing body of academic research documenting more nuanced and common sense findings that, as with many other tactics, the effectiveness of public shaming varies with the identity of the “shamer” and the target, the manner and context in which shaming occurs, and other factors. In this instance, by shining a spotlight on the horrific conditions in Gaza and the inflammatory statements of Israeli officials, the proceedings have amped up public pressure on Israel to minimize civilian harm, expand humanitarian access, and investigate political figures and others whose statements might amount to incitement to genocide.
The Court placed its authoritative imprimatur on facts and arguments that, though widely reported, had been fiercely contested. It is of no small significance that the Court found that “the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale” (para. 70), that a “catastrophic humanitarian situation” prevailed “in the Gaza Strip” (para 72), and that it was “plausible” that Israel had breached at least some of its obligations under the Genocide Convention (para. 54).. In a world of competing narratives, the Court recognized the gravity of the human suffering and assigned provisional responsibility for it. With a near unanimous bench of judges from 15 and, in some cases, 16 different national legal systems, including the United States, the Court’s opinion spoke volumes.
And, even though the Court did not grant South Africa’s request for a provisional order for Israel to suspend all military operations in Gaza, the measures it did issue place constraints on Israeli action and provide greater moral and legal foundations for further monitoring and advocacy by journalists, rights advocates, humanitarian organizations, other States and international bodies. That includes the Court’s order that Israel ensure military units do not carry out any acts within the scope of Article II of the Genocide Convention, prevent and punish incitement, enable basic services and humanitarian assistance for the population, prevent the destruction and ensure the preservation of evidence and report back to the Court on its compliance within one month. The Court remains seized of the matter.
The ruling also made clear that the contention that Israel may be contributing to genocide in Gaza is not frivolous, and will be the subject of serious discussion for years to come.
And the effects are not limited to Israel alone. Even though only Israel is in the dock in the ICJ case, the shaming impact of the Court’s January 26 ruling may force its allies and supporters – including, most significantly, the United States – to consider carefully the taint of their own continued support for, and association with, actions that have led to this scale of human and physical destruction in Gaza. Some of those states may also use the ICJ opinion as political cover to ratchet up conditions on the Netanyahu government or otherwise distance themselves from Israel’s military campaign. Already, European and other close partners of Israel, as well as many other states throughout the Middle East, have underscored the binding nature of ICJ rulings and called on Israel to implement the provisional measures. That includes Germany, which before the ICJ ruling said it would intervene in later proceedings on Israel’s behalf, yet in the wake of the Court’s ruling stated, “Israel must adhere to the Court’s order.” It seems likely then that, as a result of the ruling, Israel will continue to come under increasing pressure to modify its operations in a manner that complies with the measures ordered, and will encounter even greater diplomatic isolation if it resists.
Third, in the spirit of Brown v Board of Education and the Treatment Action Campaign litigation in South Africa on behalf of those denied available treatment for HIV/AIDS, the ICJ case involved an effort on the international level to secure judicial protection for vulnerable persons when other avenues for redress were blocked. Faced with Washington’s repeated vetoes of UN Security Council resolutions calling for (in October) a humanitarian pause and (in December) a ceasefire, South Africa v Israel built on previous efforts to evade (Russian and/or Chinese) vetoes of Security Council action concerning mass atrocities in Myanmar, Syria and Ukraine. Indeed, the case may be seen as one prong of a multi-faceted push to democratize the power that remains concentrated in an outdated and unrepresentative Security Council. The litigation is well aligned with other efforts to curtail and heighten accountability for use of the veto on the Council, to expand reliance on the UN General Assembly to address Russia’s invasion of Ukraine through the Uniting for Peace Resolution, and to establish through the UNGA mechanisms such as the Independent, Impartial and Independent Mechanism to investigate atrocity crimes in Syria.
Like all strategic litigation, this one carries risks.
Unlikely though it may now seem, public and diplomatic interest may wane over the years of litigation to come, thus diminishing the case’s impact. Even more concerning, if Israel were to defy the Court and refuse to comply with its order, and somehow suffer no discernible political or diplomatic sanction, that might constitute a setback for the cause of international law worse than if the case had never been brought at all. Plus, as many have noted, it is far from clear that Israel will in the end be found to have committed genocidal acts: the threshold of proof required for the Court to conclude that Israel has breached the Genocide Convention is much higher than the “plausible” showing applicable at this preliminary stage. Finally, some may worry whether, even as it promises a “revolution in the enforcement of international human rights law,” the Court’s interpretation of “erga omnes partes” obligations so as to expand standing may place undue expectations on states – whose political aims do not always align with those of the victims of international crimes – to vindicate the public interest.
Even with those caveats in mind, South Africa’s current iteration of strategic litigation at the ICJ is a potent sign that innovative legal action has a promising future on the international stage. One need not agree with the Court’s preliminary findings or provisional measures to appreciate the results they have produced in a short span of time. Nor does it undercut the strength of the legal arguments being made to note that, as with South Africa’s extensive record of public interest lawyering both during and in the decades since apartheid, this litigation is in many ways the pursuit of “politics by other means.”