A South African take on “As You Like It” is playing at the International Court of Justice at The Hague.

By Craig Snoyman

“Honestly m’lord, we know he was in the bank when the robbery took place, we believe he is one of the robbers. Grant us an urgent interdict preventing him from doing any further robberies. If he is the robber then we are stopping further robberies. If he is not the robber, well then, he is not suffering any harm. We’ll bring comprehensive evidence in to due course to show that he is actually the robber, we promise.”

This is not much different from the argument presented by South Africa when it arrived at the International Court of Justice (ICJ) on 29 December 2023. The South African government sought renewed international relevance by filing an urgent case against Israel. And so it was that South Africa arrived, breathless with urgency, armed with the faded moral aura of Mandela with robes billowing, waving documents and followed by an army of lawyers in its wake, that might bankrupt a small country. In front of the world’s cameras, it demanded that immediate relief for what it alleged was a genocide.  

The application was marked urgent.

The request for provisional measures screamed emergency.

The world was told there was no time to waste.

And the court played its part. The world watched two days of oral argument — a mere fortnight after filing. The provisional measures order followed against the presumptive robber, sorry, make that prospective genocider. All very urgent. All very now. All very theatrical — but then the world is a stage. 

South Africa’s initial application ran to 84 pages. Its memorial, filed in October 2024, ran to over 750 pages of text with more than 4,000 pages of exhibits and annexes. Having seen the general competence of the South African government, one cannot, even on the most generous assessment, believe that it was capable of producing 4,750 pages of material between the Hamas attack of 7 October 2023 and the filing date of 29 December 2023. The unanswered question that the South African government has still not been willing to answer in public is how long, exactly, was this ‘urgent‘ application in the making before the moment of urgency that supposedly required it? The leader of the South African legal team, John Dugard– the man who has spent at least the last 10 years agitating against Israel – probably knows the answer. The circumstantial evidence suggests that it was not a mere three months in creation.

“Urgency” allowed South Africa to leapfrog the queue and obtain interim relief before a final hearing. The premise of urgency was that the harm was occurring now, that it could not wait for the judicial mill to grind at its exceedingly slow pace. Any delay would cause irreparable damage to rights that deserve protection. Whether the other party is left carrying the stigma as a robber, or a genocider, is outweighed by the risk of potential harm.

On 26 January 2024, the International Court of Justice issued its Order on provisional measures. The court explicitly stated that its order was “not a ruling on whether Israel is in breach of the Genocide Convention.” The former President of the ICJ, Joan Donoghue — who had presided over the very hearings in question — explained that the court had not found that it was plausible that Israel was committing genocide. It had found that certain rights asserted by South Africa — not the right to be free from genocide as such, but rights under the Genocide Convention — were plausible enough to justify provisional protection from irreparable harm pending a full hearing.

This finding detonated through global media like a diplomatic hand grenade. South Africa celebrated and its domestic commentators declared that the ICJ had found that Israel was ‘plausibly committing genocide.’ Legal academics issued breathless analyses confirming that the court believed genocide was occurring. I recall one very prominent South African law professor asking Natasha Hausdorff where she got her law degree, after Hausdorff had pointed out to her that the court had not found there was a plausible genocide.

The distinction is not technical wordplay. It is the difference between a court saying “we find it plausible that the party is a robber” and a court saying “we find it plausible that there are rights worth protecting while we decide whether the party is a robber.” The court followed the latter principle. South Africa’s government either did not read that part, or found it inconvenient. The world’s media, supplied with South Africa’s narrative and disinclined to examine ICJ jurisprudence on a Friday afternoon, ran with the finding that a genocide was plausible.

South Africa filed its memorial in October 2024: 750 pages of text, 4,000 pages of exhibits.  Israel could and did raise preliminary objections to jurisdiction and admissibility, choosing not to raise the issues as a standalone exercise earlier, which would delay proceedings for six to twelve months while they are decided. Israel has raised these arguments in its counter-memorial, filed on 12 March 2026, requesting extensions from the court. South Africa opposed these extensions on the grounds that they “undermined the urgency of the proceedings.”

THE ‘PLOT’S’ (ANTI)CLIMAX

On 21 May 2026, a notice was published on the ICJ website which granted South Africa until 22 November 2027 to file its replying memorial, and set 22 May 2029 as the deadline for Israel’s rejoinder. The same country that stated extensions undermine the urgency of the proceedings asked for and was granted an extension of 18 months.  If previous court procedure is followed then Oral Hearings, should probably occur in late 2029. A final judgment as to whether genocide actually occurred would only be expected sometime in 2030 or 2031.

If the matter was urgent enough to demand provisional measures within two weeks of filing, it is curious that when faced with Israel’s 1,000-page counter-memorial and its 4,000 pages of exhibits, South Africa now requires 18 months to formulate a reply. Perhaps South Africa’s founding memorial represented the entirety of the government’s awareness, and the subsequent 4,750-page memorial required far more critical analysis on a matter which is far more complex than it had initially led the world to believe. One wonders whether Pretoria’s legal team had war-gamed the scenario where the funding pipeline has dried up when further rounds of written pleadings and oral hearings still need to be attended to. Perhaps that accounts for the 18-month extension request. Perhaps the delay is not about complexity. Perhaps it is about waiting to see whether the financial climate improves, whether the government in Tehran survives and proves generous, or whether some other source of support emerges to defray the huge costs of this case.

Israel has carried the ‘genocide state’ label since 7 October 2023 — the date Hamas committed the largest massacre of Jews since the Second World War. This label was magnified by the January 2024 order, mischaracterised by governments, adopted by protest movements, and has been continuously repeated by worldwide legacy and social media for the last two and a half years.

No finding of genocide has been made.

The ICJ has not concluded that genocide occurred or is occurring. The court has issued provisional measures — temporary interdicts pending a full hearing — but has explicitly declined to rule on the merits. But Israel will continue to carry the ‘genocide state’ label until the finalisation of the case.

What will happen if, sometime around 2030, the ICJ finds for Israel on the preliminary objections alone, by holding that the court lacks jurisdiction, or that the application is inadmissible or that the genocide convention cannot be expanded into a general mechanism for adjudicating the legality of the use of force? Or my personal favourite: that no dispute exists because no “positively opposed views” had been found and there had been no exchanges, either publicly or privately, to establish a dispute.  This would be a monumental screw-up on the part of South Africa, and Dugard did not address the issue particularly well in January 2024.  The case would be dismissed without any finding on the merits. In the court of public opinion, Israel would not be found innocent of genocide, because the court would have examined whether genocide occurred. It would simply have been determined that South Africa had no standing, or that the court had no jurisdiction, or that the application was procedurally defective.

“WORDS, WORDS, WORDS”

The genocide label, however, will remain in circulation. The articles will not be retracted. The resolutions will not be rescinded. The protest chants will not be updated. Public opinion operates on narratives, and the narrative of a “genocide state,” “ICJ genocide case” “plausibly genocidal” will be further grist to the mill.

Israel would emerge from nine years of lawfare and worldwide accusations of genocide in the world’s highest court, having its reputation treated as collateral damage by a government in Pretoria that has neither the answers to confront it legally or to comply within the timeframes it originally demanded to prevent undermining the process.

And what if Israel is successful on the merits? There is apparently an amicus curia brief (a report to aid the court by a non-party) by some of the world’s pre-eminent military experts, stating that Israel’s war in Gaza has been more protective of non-combatants in a warzone than any other war in the history of mankind.  It makes no difference.  For the duration of this case — which will extend into the 2030s, Israel has carried and will continue to carry a status in international community that one might describe as the legal equivalent of a skunk at a garden party. No formal finding of genocide. No conviction. A verdict of acquittal. But the association, repeated daily in global media, in university campuses, in governmental statements from hostile states have real-world effects on trade, on diplomatic relations, on the treatment of both Israeli nationals and Jews abroad.

South Africa will continue to play the role of the global avenger until a final verdict is delivered and possibly even beyond. And while it reads its lines and while its government officials talk of accountability and international law, they speak with the sincerity of men who have spent the better part of the last few years avoiding both.

About the writer:

Craig Snoyman is a practising advocate in South Africa.

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