South Africa’s genocide case against Israel: expert sets out what to expect from the International Court of Justice

 

By Magnus Killander, University of Pretoria

The International Court of Justice (ICJ) will be holding public hearings on 11-12 January at the Peace Palace in The Hague, the seat of the court, in a case brought by South Africa against Israel. South Africa has accused Israel of violating the 1948 Genocide Convention in its military bombardment and siege of Gaza, which started after the deadly 7 October Hamas attack on Israel. Both Israel and South Africa have ratified the genocide convention. We asked human rights and international law expert Magnus Killander for his insights.

What is the International Court of Justice?

The International Court of Justice (ICJ) is one of many international courts. It is the most prominent and widely regarded as the most authoritative as it is the only judicial body set out in the Charter of the United Nations. It has general jurisdiction rather than being limited to specific areas of law such as the International Tribunal for the Law of the Sea or regional human rights courts such as the African Court on Human and Peoples’ Rights.

The ICJ should be distinguished from the International Criminal Court (ICC), which also has its seat in The Hague, in the Netherlands. The ICC can convict and sentence individual perpetrators for violations such as genocide, crimes against humanity and war crimes. In contrast the ICJ deals only with the responsibility of states for violations of international law, not with accountability of individuals.

Parallel to the process at the ICJ, the prosecutor of the ICC has been investigating “the situation” in Palestine for some time, and may prosecute those allegedly responsible for atrocities committed by all parties to the conflict.

What is the International Court of Justice’s jurisdiction?

It can hear cases brought by states (“contentious cases”) and requests by United Nations bodies, such as the General Assembly, for advisory opinions. The ICJ has delivered judgments in close to 150 “contentious cases” since its first judgment in 1949, and 27 advisory opinions since its first advisory opinion in 1948.

The first time a case was brought to the ICJ alleging violation of the Genocide Convention was in 1993 by Bosnia against Yugoslavia. The second case was in 2019 by The Gambia against Myanmar. The third case was by Ukraine against Russia following the Russian invasion of Ukraine in February 2022.

Of these cases the ICJ has so far only handed down a final judgment in the 2007 Bosnian judgment, 14 years after the case was initiated.

However, the ICJ has issued provisional measures in all the Genocide Convention cases, within a few months after the cases were brought to the court. Provisional measures are orders of the court to prevent irreparable harm. They bind the respondent state to refrain from certain actions until the court has delivered final judgment. The provisional measures in the Myanmar case adopted by the court in January 2020 prohibited the state from, among other things, taking action against the minority Rohingya group by

(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.

While there have been fewer killings of Rohingya since the provisional measures, their situation remains precarious both in Myanmar and in Bangladesh, where many of them have taken refuge.

In the provisional measures order in Ukraine v Russia in 2022 the ICJ ordered Russia to immediately cease its military operations in Ukraine and ensure that any military units or irregular armed units conduct military operations. However, Russia’s war on Ukraine continues.

What are the conditions for having a case heard by the ICJ?

1) There must be a substantive jurisdictional basis for bringing the case. This can be, for example, by agreement by the parties or, as in the case under discussion, that both states are parties to a multilateral treaty that provides for disputes between state parties to be heard by the ICJ. Article IX of the Genocide Convention is a case in point.

Israel ratified the Genocide Convention in 1950 and South Africa in 1998. Palestine has been a party to the Genocide Convention since 2014 and may bring cases before the ICJ, but hasn’t done so.

2) The state bringing the case must normally have an interest in the case. However, this does not apply to certain types of violations where all states in the world are considered to have an interest. Examples include alleged violations of the Genocide Convention and the Convention against Torture. In its judgment in the 2022 case against Myanmar on preliminary objections, the ICJ stated that any state can bring a case to it in relation to a suspected violation by another state that is party to the Genocide Convention.

The process

The first step in the case is the public hearing on provisional measures. South Africa and Israel are allocated two hours each to present their arguments on provisional measures. A decision on provisional measures is usually taken within one or two months after the public hearing.

The ICJ only makes a provisional assessment of the case to issue provisional measures. Thus even if the ICJ issues provisional measures against Israel, it does not necessarily follow that the court will – in its final judgment – find that Israel has violated the Genocide Convention.

After a provisional measures decision, the ICJ will proceed to determine any preliminary objections raised by Israel, such as whether the court has jurisdiction to hear the case on the merits, and whether South Africa has standing to bring the case.

If the preliminary objections are unsuccessful, the ICJ will make a judgment on the merits of the case in which it determines whether Israel has violated the Genocide Convention. The process until a final judgment takes several years. In many cases final judgment has taken a decade or more.

Other states may intervene in a case, as many have done, for example, in the Ukraine v Russia case.

What action can the court take?

The ICJ provides declaratory orders. In its 2007 final judgment in the Bosnia v Serbia and Montenegro case, the ICJ found that Serbia had violated the Genocide Convention by not taking action to prevent the genocide in Srebrenica, and by having failed to transfer Ratko Mladic, who commanded the Bosnian Serb army that massacred Bosnian civilians, to the International Criminal Tribunal for the Former Yugoslavia.

Other claims of genocide were dismissed by a majority of the court. The court held that the declaration of a violation was a sufficient remedy, and that the court should not provide any other remedies in the case such as compensation.

The orders of the ICJ are binding on states. Nevertheless, they are often ignored. This is in line with the general difficulty of enforcing international law, in particular international human rights law and international humanitarian law.

The provisional measures requested by South Africa include that Israel should suspend military activities in Gaza, stop killing Palestinians and prevent forced displacement and deprivation of access to adequate food, water, fuel, shelter and sanitation.

The ICJ can grant provisional measures different from those requested. While it is clear that the prevention of humanitarian assistance leading to starvation, forced displacement and indiscriminate bombings, taken together with statements by Israeli officials (see paragraphs 101-107 of South Africa’s submission to the ICJ), could constitute violations of the Genocide Convention, it is less clear that this means no military action whatsoever may be taken by Israel against Hamas.

Following its own precedent in earlier cases under the Genocide Convention, it seems clear that the ICJ should issue provisional measures. What such measures the court will order remains to be seen.

Magnus Killander, Professor, Centre for Human Rights in the Faculty of Law, University of Pretoria

This article is republished from The Conversation under a Creative Commons license. Read the original article.