CIVICUS speaks about the role of the International Court of Justice (ICJ) in the context of the case brought by South Africa against Israel with Thomas Van Gool, Project Lead Israel-Palestine at PAX.
PAX, the largest peace organisation in the Netherlands, works to protect civilians against acts of war, end armed violence and build inclusive peace. It works in conflict areas worldwide, together with local partners and people who, like PAX, believe that everyone has a right to a dignified life in a peaceful society.
What’s the ICJ and how does it work?
The ICJ is the principal judicial organ of the United Nations (UN) and is based in The Hague, the Netherlands. It was established under the UN Charter in 1945 to settle legal disputes between states and provide advisory opinions on legal questions referred to it by the UN General Assembly, the Security Council and other UN organs and specialised agencies.
The ICJ has two types of jurisdictions: contentious and advisory. In contentious cases, states must consent to the ICJ’s jurisdiction, either through a special agreement or by accepting the court’s compulsory jurisdiction in advance. Advisory opinions are provided on legal questions referred to the court by the UN General Assembly, Security Council, or other authorised bodies.
In contentious cases, once the court has jurisdiction, it proceeds to hear the case. The parties involved submit their arguments and evidence, and the court makes a judgment based on international law.
Why did South Africa bring a case against Israel at the ICJ? What are its allegations?
The case brought by South Africa against Israel at the ICJ came as a surprise to many but if you look at it more closely, it is not that strange. There is a long-term bond between South Africa and Palestinians. Nelson Mandela once famously said, ‘We know too well that our freedom is incomplete without the freedom of the Palestinians’. This bond was formed more than half a century ago, when the African National Congress was battling apartheid and saw strong parallels between the Palestinians’ struggle and its own. Israel’s support for apartheid in South Africa only strengthened these bonds. South Africa’s decision to take Israel to the ICJ may have been unforeseen by many, including Israel, but is not as random as it has been portrayed.
According to South Africa, Israel’s actions in Gaza make it responsible for violations of the Genocide Convention. South Africa alleges that Israel’s killing of large numbers of Palestinians in Gaza, including children, its destruction of homes, blocking of the entry of food, water and medical supplies, forced displacement and expulsion, and destruction of health services can be considered genocidal, and has asked the ICJ to rule on this matter.
The response of Israel has been that there is no genocide, that it is defending itself and that the court should have no say in the matter. While a big part of the international community supported the case, Israel’s close allies, including Germany and the USA, stood by it.
What could the ICJ do in response to the conflict in Gaza?
While the court typically takes several years to reach final decisions, it has the authority to issue provisional measures in the interim. This is what it has done in the case initiated by South Africa against Israel.
As of now, the Court has not definitively ruled on the occurrence of genocide, nor has it decided if it has jurisdiction to hear the case. However, in an initial assessment, it determined that jurisdiction appears to be plausible, establishing a connection between the measures requested by South Africa and the case. This decision hinged on considerations of plausibility, urgency and the potential impact of not implementing these measures.
There are different potential outcomes of the case and a ruling that genocide has been committed is plausible given the evidence already presented by South Africa. While several criteria must be met, in genocide cases intent is often the most crucial to establish. To prove intent, South Africa is pointing, among other things, to statements made by high-ranking Israeli government officials.
What can we expect next?
Following the ICJ’s decision, Israel is obligated, in accordance with the Genocide Convention and its responsibilities toward Palestinians in Gaza, to ‘take all measures within its power’ to prevent acts prohibited by the Convention, particularly killings, but this also includes causing serious physical or mental harm, deliberately imposing conditions of life leading to the physical destruction of the population and imposing measures intended to prevent births.
Israel is expressly required to ensure its military forces refrain from committing any of these acts, prevent and punish direct and public incitement to commit genocide, facilitate immediate and effective humanitarian relief to Gaza, take measures to prevent the destruction of evidence related to allegations of acts contrary to the Genocide Convention and submit a comprehensive report to the Court within one month detailing the steps taken to comply with its order.
Unfortunately, so far there is little indication that Israel is complying with any of these obligations. A ceasefire would be the most logical step to comply, but bombings and the ground offensive are still occurring.
How effective are institutions such as the ICJ in dealing with gross human rights abuses? Is there a need for reform?
While its decisions are binding on the parties involved, the ICJ lacks its own enforcement mechanism. Compliance with ICJ rulings depends on the willingness of the states involved to adhere to the judgment. The UN Security Council can play a role in enforcement, but this is subject to its own political dynamics.
In my opinion the ICJ is enormously important. It is the highest court we have, and its rulings should be adhered to. There is also an essential role for the international community to play in protecting and supporting the ICJ, complying with its rulings and fostering their enforcement. That is often lacking. The Netherlands, as host country of the ICJ, should contribute towards ensuring the effectiveness of ICJ rulings. There should be no place for double standards.
Get in touch with PAX through its website or Instagram and Facebook pages, and follow @PAXforpeace and @ThomasvgPAX on Twitter.
This interview was conducted as part of the ENSURED Horizon research project funded by the European Union. Views and opinions expressed in this interview are those of the interviewee only and do not necessarily reflect those of the European Union. Neither the European Union nor the granting authority can be held responsible for them.
