The International Court of Justice (ICJ) recently announced a new timetable in the case brought by South Africa against Israel. The initial hearings were held in January 2024. Since then, South Africa has submitted its evidence, known as a memorial, to the court, and Israel has responded with its own counter-memorial.

The court has now granted South Africa's request to submit a rejoinder and has given it 18 months to do so. Israel will then be granted a further 18 months to submit a counter-rejoinder.

The practical consequence of this decision is that meaningful progress in the case is unlikely before 2029.

It is not unusual for the ICJ to grant extensions to parties seeking additional time to present evidence. However, legal experts have pointed out that South Africa's request suggests a particular legal strategy. On the one hand, South Africa has argued that its intervention is necessary because of an imminent threat of genocide against the Palestinian people. It has reinforced this position by bringing multiple applications for provisional measures concerning Israel's military actions in Gaza.

These applications require a far lower evidentiary threshold than the genocide case itself and can therefore be considered relatively quickly.

When it comes to the actual case, however, South Africa has moved slowly. It took nearly nine months to submit its initial memorial. While the memorial is not publicly available, reports suggest that it runs to approximately 5 000 pages. South Africa is now requesting another 18 months to supplement its arguments.

Such a manoeuvre suggests a reluctance to proceed expeditiously with the case. South Africans are familiar with this approach from the so-called Stalingrad strategy, most famously associated with former President Jacob Zuma, whereby defendants seek to delay legal proceedings for as long as possible in the hope that circumstances change in their favour. The difference, of course, is that the Stalingrad strategy is normally employed by defendants. South Africa appears to be applying it as a prosecutorial strategy.

The question is: why?

Evidence

One explanation may lie in the issue of evidence. Legal experts have argued that South Africa's case faces significant challenges. While there is no doubt that the war that followed Hamas's 7 October attack has been brutal, it does not exceed the scale of other recent conflicts in the region, including those in Syria, Yemen, and Sudan.

The legal threshold for proving genocide is intentionally high. Israel's conduct during the war, including its extensive use of military lawyers in target selection, the continued flow of humanitarian and military aid into Gaza, and the fact that Hamas has held civilian hostages throughout the conflict, all complicate efforts to demonstrate the specific intent required for a genocide conviction.

This may help explain why Ireland, in its intervention before the court, explicitly sought to lower the requirements for the definition of genocide in the convention. By requesting additional time, South Africa may be hoping that further evidence emerges that strengthens its case.

The evidence theory, however, has its own weaknesses. South Africa does not necessarily require an overwhelmingly strong legal case to achieve its objectives. Despite its name, the ICJ often functions as much as an arbitration forum as a judicial one. This may be adequate when adjudicating disputes over borders, fishing rights, or territorial claims, but it is less satisfactory when dealing with accusations as serious as genocide.

Some judges come from countries with limited traditions of judicial independence or the rule of law. Others have diplomatic rather than judicial backgrounds. Indeed, the Lebanese president of the court recently left his position to become prime minister of Lebanon. In such an environment, political considerations inevitably influence legal deliberations.

Under these circumstances, South Africa could simply seek to press its advantage and push for a quicker judgement. Yet this may not be what its legal and political team actually wants, at least not at present.

Strenuous Efforts

Despite strenuous efforts by former ICJ President Joan Donoghue to clarify that the court has not found that Israel is committing genocide, nor even that such a finding is plausible, much of the media and public commentary has continued to portray the proceedings as though such a conclusion has already been reached.

As long as the case continues, South Africa enjoys many of the political and public relations benefits associated with a finding of wrongdoing, without having to secure an actual judgement. The process itself generates headlines and reinforces the narratives advanced by its diplomatic allies in Hamas and Iran.

There is, however, a broader geopolitical consideration.

South Africa's African National Congress (ANC)-led government has made it clear that it supports the emergence of a "multipolar world order", one characterised by reduced Western influence and, in particular, diminished American power. For decades, American policymakers have been wary of the United Nations's tendency to serve as a forum where authoritarian states organise condemn democratic ones. Although the United States (US) has often expressed frustration and taken limited steps against parts of the institution, it has never fully abandoned it.

For the Trump administration, a politically motivated prosecution of a close American ally could reinforce arguments that international institutions are increasingly being weaponised against the US and its partners. It may be all President Donald Trump needs to pull the plug on the international system altogether.

South Africa and its allies are not yet in a position to fill the vacuum that such a withdrawal would create. A dramatic American retreat from international institutions could therefore undermine their own strategic objectives.

Trump, however, will not be in office forever. The new ICJ timetable pushes the case beyond the end of his administration. It creates the possibility that a future American administration, perhaps one staffed by a pusillanimous progressive Democrat, would face pressure to accept and enforce any eventual judgement. Such pressure could place significant strain on US-Israel relations and broader relationships among democratic allies.

Scenario

Yet the timetable creates another possible scenario.

By 2029, the era of President Cyril Ramaphosa, the political figure most closely associated with the ICJ case, will be over. There is also a realistic possibility that the ANC will no longer be governing South Africa.

A future coalition government may seek to distance itself from the ANC's legacy of corruption, state failure, and controversial foreign policy decisions. A costly, long-running, and politically suspect international court case could prove an attractive target for withdrawal, allowing a new administration to signal a dramatic break with the past.

Several partners in the Government of National Unity have already expressed opposition to South Africa's involvement in the case. It is therefore possible that withdrawal from the proceedings could become a significant bargaining chip in future coalition negotiations.

If that happens, South Africa's ICJ case may ultimately be remembered not for the judgement it secured, but for the years it spent delaying one.