Lack of military expertise may hamper South Africa’s ICJ application  

10 January 2024

South Africa’s ICJ team has been widely acclaimed for their comprehensive expertise and meticulous arguments. However their application to the ICJ appears to be missing legal expertise in the fields of International Humanitarian Law (IHL) as well as the modern day restatement of IHL which applies in an air and missile context.

It is alleged twice in the 84 page ICJ application that Israel is said to be dropping ‘dumb’ (i.e., unguided) bombs on Gaza, as well as heavy bombs weighing up to 2,000 lbs (900 kgs), which have a predicted lethal radius “of up to 360m”, and are expected to cause severe injury and damage as far as 800 metres from the point of impact. This weaponry is being deployed in one of the most densely populated areas in the world, where approximately one in every 100 people has now been killed.

The IDF’s usage of “dumb bombs” is argued to be a compelling circumstance which requires the indication of provisional measures. The South African legal team hopes to use this argument in order to ask the court for provisional relief from the IDF’s continuing combat operations against Hamas.

In December 2017, I published an international law research paper on missile defense systems in the South African Journal of Military Studies. An important part of the research was the legal framework which underpins the use of missiles in armed conflicts. An essential aspect is the categorisation of missiles - they are either ballistic or guided.

The definition of a ballistic missile is one which relies solely on gravity once fired. This means that the course of a ballistic missile cannot be re-directed once launched. A guided missile however differs from a ballistic missile. Guided missile technology is designed with a built in navigation system in order to divert the missile should it be required.

It is against this framework that the South African ICJ application begins to run into legal challenges. There is no difference in law between ballistic missiles and guided missiles. One cannot claim that a guided missile will perform in a more legal manner than a ballistic missile. A ballistic missile aimed at a weapons factory is a legitimate application of weaponry for the purposes of war. A guided missile which is incorrectly diverted towards a civilian objective would constitute a war crime.

Both types of missiles are fundamentally legal. However both could be utilised in a legal or illegal way. There is in fact no express obligation in either treaty or customary law for any military to utilise precision guided weapons over ballistic weapons.

It is very clear for example that the use of ballistic rockets by Hamas aimed indiscriminately at Israeli cities constitutes a war crime. So too would the use of a guided missile directed by Hezbollah towards Israeli civilian infrastructure such as the attack on St Mary’s Church in Irqit on 26th December 2023.  

The regular use of unguided bombs by military forces around the world shows that they are quite simply not indiscriminate in nature - just like ballistic missiles. In many instances these weapons can be delivered against enemy combatants with little harm to civilians or civilian objects. Their usage can be accurate depending on the circumstances and method of delivery. Furthermore, the usage of unguided bombs has already been addressed by the Israeli Air Force in an explanatory video.

Accordingly, the term “dumb bombs” described munitions that are not guided based (not GPS guided). These are standard munitions that are regularly used by militaries worldwide. The claims that such munitions are indiscrimate or cause uncontrollable damage are misleading. Even though these munitions are not GPS guided, they are still used accurately. They are released at a specific release point calculated by the aircraft’s system to allow the pilot to strike the target accurately.These heavy munitions detonate underground, causing craters, preventing fragmentation which could harm civilians and significantly reduce the blastwave and debris as a result.

The means of warfare enquiry is separate to the conduct of hostilities (methods of warfare) enquiry in the Jus In Bello analysis. Both the weaponry and tactics of attack must be assessed.

The application does not elaborate further on prior precautions and proportionality analyses in relation to these air strikes. In fact the only tactic specified by the report is hidden within a CNN footnote - “dive bombing” or dropping a bomb while diving steeply in a fighter jet is said to increase accuracy as the aircraft flies closer to its target. It may be as accurate as a guided munition.

At no point in the application does the legal team expressly argue of any specific incidents of the usage of the unguided bombs where they believe there has been a breach of IHL.

Therefore this compelling circumstace on which the South African team is seeking relief is both legally and factually incomplete. The legal team may therefore not be able to rely on this submission for the provisional ceasefire measures which they are seeking.

Joel Block is an independent military analyst with a special focus on issues of Integrated Air And Missile Defence. He is a finalist in the Justice and Law section of the M&G’s top 200 Young South Africans of 2021.