Israel and South Africa face off at the UN’s International Court of Justice (ICJ) from Thursday, after Pretoria accused Israel of “genocidal acts” in Gaza.
South Africa, the first country to file a suit against Israel, urged ICJ judges to order Israel to “immediately suspend its military operations” in Gaza. It also alleged that Israel “has engaged in, is engaging in, and risks further engaging in genocidal acts against the Palestinian people in Gaza”.
The case is one of at least three Israel is potentially facing as its actions against Hamas come increasingly into the crosshairs of international law.
What is International Court of Justice?
The ICJ also called the World Court is the highest UN legal body established in 1945 to deal with disputes between countries. however, it is different from the treaty-based International Criminal Court, also in The Hague, which handles war crimes cases against individuals.
The ICJ rules on disputes between states and while its decisions are legally binding, it has limited power to enforce them.
What could the ICJ do?
South Africa has accused Israel of committing genocide in Gaza, in violation of the 1948 Genocide Convention, according to which a genocide is any “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The country has sought emergency orders from the ICJ — “provisional measures”, which means the court does not have to necessarily agree with Pretoria’s fundamental case. It must instead judge whether there is a risk of “irreparable prejudice” to the rights of the Palestinians.
“At the provisional measures stage, the Court would not be making a determination that a genocide is unfolding in Gaza,” said Cecily Rose, assistant professor of public international law at Leiden University.
“Instead, the Court would only be evaluating whether there is a risk of irreparable prejudice to rights held under the Genocide Convention, in particular the right of the Palestinians in Gaza to be protected from acts that threaten their existence as a group,” Rose told AFP.
Pretoria has asked the court to issue several orders: for Israel to “immediately suspend” its Gaza offensive, to stop forced displacement, to enable humanitarian access, and to preserve evidence.
The ICJ can order all of the measures requested by South Africa. It could decline to order anything. It could order something completely different, or even decide it is not competent to judge.
What Follows Next?
After the court decides whether or not to apply emergency measures, it will then look at the broader case “on the merits” — South Africa’s charge that Israel is in breach of the UN Genocide Convention.
Since Israel and South Africa are both parties to the ICJ, its rulings are binding on both of them. However, Israel is tightly shielded by the US and the World Court lacks enforcement power.
The decisions of the ICJ — often known as the “World Court” — are binding upon countries and cannot be appealed.
However, the ICJ has no way of enforcing its rulings and they are sometimes completely ignored. In March 2022, the ICJ ordered Russia to “immediately suspend” its invasion of Ukraine — a directive Moscow has ignored.
Celine Bardet, an international law and war crimes expert, said any decision would be at a “symbolic level”.
In 2019, Gambia, on behalf of the Organisation of Islamic Cooperation (OIC), petitioned the court against Myanmar over its atrocities against the Rohingya people.
In a previous genocide case, Bosnia accused neighbouring Serbia of masterminding a genocide of Bosnian Muslims during the 1992-95 war. In 2007, the ICJ ruled that genocide had been committed during the 1995 massacre of some 8,000 Muslim men and boys in the Bosnian town of Srebrenica. However, the judges said there was not enough evidence that the Serbian government had been directly involved in the slaughter. Nonetheless, they found Serbia guilty of violating the convention by failing to prevent genocide.
How long does this take?
The ICJ is not known for its speed but “provisional measures” take priority over all other cases and a decision can be relatively quick — a matter of weeks.
A ruling of the broader case “on the merits” on the other hand will probably take several years. The ICJ is still deliberating on Gambia’s case against Myanmar from 2019.
South African authorities confirmed on Tuesday that the ICJ has fixed a hearing for January 11-12. “The ICJ has scheduled a hearing of the case that South Africa has triggered. This is set down for 11-12 January 2024 at the Hague. Our lawyers are currently preparing for this,” Clayson Monyela, spokesperson for South Africa’s Department of International Relations and Cooperation, said on X, formerly Twitter.
Why South Africa?
South Africa has brought the case against Israel because both countries have signed the UN Genocide Convention, drawn up in 1948 as the world vowed “never again” after the Holocaust.
Its filing states that Pretoria is “acutely aware” of the “particular weight of responsibility” in accusing Israel of all countries of breaking the Genocide Convention.
But it also says that no attack can justify alleged breaches of the Convention and that Israel has “its own obligation” as a signatory to prevent genocide.
South Africa has long been a vocal supporter of the Palestinian cause, with the governing African National Congress (ANC) party often linking it to its own struggle against apartheid. The two countries have cut off diplomatic ties over the issue.
What other cases are there?
The ICJ rules on disputes between countries and is often confused with the International Criminal Court (ICC), also based in The Hague, which prosecutes war crimes by individuals.
ICC chief prosecutor Karim Khan has an open investigation into events in Gaza and has vowed to “step up” his probe.
Five countries including South Africa called in November for an ICC investigation into the Gaza war, and Khan says his team has gathered a “significant volume” of evidence. International legal experts have told AFP that war crimes have probably been committed by both sides.
Finally, the United Nations has asked the ICJ to look into the legal consequences of Israel’s actions in the Palestinian Territories. This will be an advisory opinion and will not focus on the military operation after October 7.
(With inputs from agencies)
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