Political Trials, Neo-Legalism, and Gaza: Historical Memory in South Africa v. Israel

Abstract

This Article examines the relation between law, politics, and history in the initial phase of the genocide case brought by South Africa against Israel in the International Court of Justice (ICJ). It analyzes how both parties invoked and mobilized the past within their legal strategies. While the proceedings centered on the pressing issue of applying the legal category of “genocide” to the devastating reality in Gaza, they also involved a turn to history. Both parties extended the trial’s temporal framework to advance rival historical narratives, reaching into the distant past and turning the trial into a contested site of confrontation between competing global memories: South Africa through the paradigm of settler colonialism, and Israel through the narrative of the uniqueness of the Holocaust. By analyzing South Africa’s and Israel’s claims, and the public debate surrounding the case, the Article seeks to explore how legal discourse mobilizes history and what this reveals about the role of international law in clarifying the past and shaping historical memory. Building on Judith Shklar’s framework in her 1964 Legalism, the Article develops the concept of “neo-legalism” to capture a dual movement: a forward-looking appeal to law as a tool of political transformation, coupled with a backward-looking effort to reframe contested histories through legal categories. While engagement with history is essential for promoting a democratic future and for illuminating long-overlooked and marginalized historical experiences, Shklar warns that stretching the temporal frame of a trial too far into the remote past runs the hazard of flattening the complexity and contingency of long-term historical processes. This risks not only producing oversimplified narratives but also undermining the political judgment essential for shaping a shared future.