Litigating the Gaza Crisis: Legal and Political Strategies in South Africa v. Israel

Abstract

South Africa v. Israel represents the most prominent example to date of strategic litigation before the International Court of Justice (ICJ), a litigation model that seeks to use the Court to achieve the wider structural objective of altering the prevailing balances of power in a situation. Contrary to the classical approach of evaluating litigation impact— that is, focusing on whether the responsible state has complied with a ruling—strategic litigation warrants consideration of a wider set of factors. This includes the litigants’ goals (both the applicant’s and respondent’s), the Court’s strategic choices, and the impact of the litigation, both intended and unintended. The key point of evaluation here is how the linkage of a dispute to international law—and the solemnity of judicial proceedings before the “World Court”—can serve to mobilize the international community against a targeted state and its partner states, not only on the specific legal issues arising in the case but on the wider legitimacy of state conduct in such situation. In this regard, the Court’s provisional measures jurisdiction, which was invoked in South Africa v. Israel, provides applicant states with a tool to promote a cause given the lower threshold needed to justify a judicial remedy and the relative speed in obtaining one. The purpose of this Article is to evaluate the efficacy of the Court’s provisional measures order in South Africa v. Israel through an examination of the participants’ goals, the Court’s strategic choices, and the discernible impact of the decision in its immediate aftermath. More generally, this Article contributes to the scholarly literature on strategic litigation impact and the role of the ICJ in ongoing armed conflicts and humanitarian crises. It also provides a basic structure for future researchers to consider the longer-term impact of this case (as well as other strategic litigations) in the resolution of the Gaza conflict specifically and the Palestinian question more generally.

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