18 No. 78 JUSTICE Numerous states have filed declarations of intervention through a mechanism permitting states parties to the Geneva Convention to present their views on its interpretation. Intervening states include Colombia, Libya, Türkiye, Chile, Ireland, Cuba, Spain, Mexico, Bolivia, Maldives, Belize, Belgium, and – most recently in March 2026 – the Netherlands, Iceland, Namibia, the United States, Hungary, and Fiji.6 Most interventions have supported South Africa’s position. Several observations merit attention. First, Israel’s decision to participate was correct and consequential. South Africa failed to obtain what it most wanted: an order to cease hostilities. Engagement enabled Israel to present its defense to the ICJ and, no less importantly, to a global audience – oral proceedings were live-streamed and viewed worldwide. Second, the proceedings expose institutional and procedural challenges. The ICJ bench includes judges who do not come from systems with independent judiciaries, and some are arguably predisposed against Israel. The case of Judge Nawaf Salam is illustrative: a former Lebanese diplomat who served as Lebanon’s Permanent Representative to the United Nations from 2007 to 2017, he was elected ICJ President in February 2024 – and then, in January 2025, while presiding over this case, resigned from the ICJ upon being designated Prime Minister of Lebanon, a country formally at war with Israel. Third, the ICJ’s institutional and procedural limitations are relevant. The ICJ does not have jurisdiction over Hamas – whose actions on October 7 and during the conflict are integral to the case – since only states may be parties to ICJ proceedings and to the Genocide Convention. Only one side to the conflict – Israel – is subject to the ICJ’s review and orders. The ICJ, for instance, cannot order Hamas to cease its violations of the law, or even to release the hostages. Another institutional flaw is that this case is intensely fact-dependent, yet the ICJ is not a factfinding court. It relies heavily on documentary evidence, including UN publications that Israel and independent analysts have shown to be methodologically and substantively problematic. The ICJ has no independent investigative capacity and is poorly equipped to adjudicate contested factual claims in a rapidly evolving armed conflict. Fourth, even without a legal victory on the merits, South Africa achieved a significant public-relations win. The mere institution of a genocide case at the world’s highest court – and the provisional measures orders – lent institutional legitimacy to the equation of Israel with genocide, an association that has profoundly shaped global public discourse. Even absent a final decision, the case has already inflicted adverse consequences on Israel. In international relations and public opinion, the ICJ’s provisional measures have been widely – and inaccurately – characterized as a judicial finding that Israel is “plausibly” committing genocide. In fact, and as former ICJ President Joan Donoghue clarified in an April 2024 BBC interview, the ICJ’s January 2024 order found only that the Gazan Palestinians’ rights under the Genocide Convention were plausible – the threshold for issuing provisional measures – not that genocide itself was plausibly occurring.7 The distinction is legally critical but has been largely lost in public discourse, to Israel’s considerable detriment. Israel’s interests are also affected by ICJ cases to which it is not a party. Nicaragua brought proceedings against Germany in March 2024, alleging that Germany’s military support for Israel and its defunding of UNRWA amount to facilitation of genocide.8 Although the ICJ rejected Nicaragua’s request for provisional measures in April 2024 by a vote of 15 to 1 – finding Germany’s due diligence framework adequate – the case remains pending on the merits. Separately, the Palestinians instituted proceedings against the United States in September 2018, challenging the relocation of the U.S. Embassy to Jerusalem as a violation of the Vienna Convention on Diplomatic Relations; that case remains at the jurisdictional stage.9 6. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Intervention (2024-2026), available at https://www.icj-cij.org/case/192/intervention 7. “Former head of ICJ explains ruling on genocide case against Israel brought by S Africa,” BBC (April 26, 2024), available at https://www.bbc.com/news/av/world-middle-east-68906919 8. Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicar. v. Ger.), Application Instituting Proceedings (March 1, 2024), available at https://www.icj-cij.org/node/203822 9. Relocation of the United States Embassy to Jerusalem (Palestine v. U.S.), Application Instituting Proceedings (Sept. 28, 2018), available at https://www.icj-cij.org/case/176
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