South Africa’s genocide case against Israel

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By Magnus Killander, University of Pretoria

The International Court of Justice (ICJ) will hold public hearings on January 11-12 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 began after the deadly October 7 Hamas attack on Israel. Both Israel and South Africa have ratified the Genocide Convention.

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

Parallel to the process at the IG, the IS prosecutor has been investigating “the situation” in Palestine for some time, and can prosecute those who are allegedly responsible for atrocities committed by all parties to the conflict.

What is the International Court of Justice’s jurisdiction?

This court can hear cases brought by states (“controversial cases”) and requests by United Nations bodies, such as the General Assembly, for advisory opinions. The IG has issued rulings in nearly 150 “controversial cases” since its first ruling in 1949, and 27 advisory opinions since its first advisory opinion in 1948.

The first time that a case was filed with the IG regarding the violation of the Genocide Convention was in 1993 by Bosnia against Yugoslavia. The second case was in 2019 by Gambia against Myanmar. The third case was by Ukraine against Russia after the Russian invasion of Ukraine in February 2022.

Of these cases, the IG has, so far, only delivered a final judgment in the 2007 Bosnian judgment, 14 years after the case began.

However, the IG issued provisional measures in all the Genocide Convention cases within a few months of the cases being brought to court. Interim 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 a final judgment. The provisional measures in the Myanmar case that the court adopted in January 2020 prohibited the state from taking steps against the minority Rohingya group by:

  1. killing members of the group;
  2. cause serious physical or mental harm to the members of the group;
  3. intentionally inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part; and
  4. introduce measures intended to prevent births within the group.

Although 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 preliminary measures order Ukraine v Russia in 2022, the IG 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 against Ukraine continues.

What are the conditions to have a case heard by this court?

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

Israel ratified the Genocide Convention in 1950 and South Africa in 1998. Palestine has been a party to the Genocide Convention since 2014 and can bring cases before the IG, but has not done so.

2) The state that brings the case must normally have an interest in the case. However, this does not apply to certain types of offenses where all states in the world are considered an interest. Examples include alleged violations of the Genocide Convention and the Convention against Torture. In its ruling in the 2022 case against Myanmar on preliminary objections, the IG said that any state can file a case with it in relation to a suspected violation by another state 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 each given two hours 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 IG only makes a preliminary assessment of the case in order to issue provisional measures. Even if the IG therefore issues preliminary measures against Israel, it does not necessarily follow that the court – in its final judgment – will find that Israel has violated the Genocide Convention.

Following a preliminary measures decision, the IG 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 hear the case. bring.

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

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

What steps can the court take?

The IG provides declaratory orders. In its final judgment of 2007 in the Bosnia v. Serbia and Montenegro case, the court found that Serbia had violated the Genocide Convention by failing to take steps to prevent the genocide in Srebrenica, and by failing to arrest Ratko Mladic, who the Bosnian -led Serbian army who massacred Bosnian civilians to be taken to the International Criminal Tribunal for the former Yugoslavia.

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

The orders of the IG are binding on states. Nevertheless, they are often ignored. This is consistent with the general difficulty of enforcing international law, especially international human rights law and international humanitarian law.

The provisional measures requested by South Africa include that Israel must 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 IG may grant provisional measures different from those requested. While it is clear that the prevention of humanitarian assistance leading to starvation, forced displacement and indiscriminate bombing, together with statements by Israeli officials, may constitute violations of the Genocide Convention, it is less clear that this means that no military action whatsoever by Israel against Hamas may not be taken.

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

  • Magnus Killander is a professor attached to the Center for Human Rights in the Faculty of Law at the University of Pretoria.

This article was published courtesy of The Conversation. The Conversation