What does it mean, what happens next, and when can we expect the decision?

On 29 December 2023, amid growing international calls for Israel to stop its war on Gaza, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ). On 11 and 12 January 2024, the ICJ held urgent public hearings where the court heard initial oral arguments from both South Africa and Israel. The question before the court was whether or not the ICJ should issue the “provisional measures” requested by South Africa in their application. So, what were the arguments and what happens next?  

What are South Africa’s allegations against Israel?

South Africa’s 84-page application to the ICJ requests a series of “provisional measures”, including the immediate suspension of Israeli military operations in Gaza and the prevention of further crimes being committed in the Gaza Strip. This request for provisional measures was the crux of the oral proceedings before the court. 

South Africa’s application and oral argument is on the basis of allegations that Israel has violated its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) by committing genocidal acts against Palestinians in the Gaza Strip. 

The Genocide Convention is an international treaty that was drafted in response to the mass killing of Jews during the Holocaust. Article II of the Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. The alleged genocidal acts listed by South Africa include the mass killing of Palestinians in Gaza (especially children), infliction of serious mental and bodily harm, the destruction of homes, forced displacement, and the blockade on food, water and medical assistance.

The difficulty in proving genocidal intent is often a challenge, but lawyers for South Africa pointed to numerous statements by Israeli officials, including prime minister Benjamin Netanyahu, as evidence of such intent. South Africa’s lawyers also pre-empted Israel’s argument of its right to self-defence pursuant to Article 51 of the UN Charter, by referring to Gaza being occupied territory with Israel retaining control over the region – “over access by land, sea and air, and over key governmental functions and supplies of water and electricity.” They argued that a claim of self-defence cannot be invoked by an occupying force so the right to self-defence has no application. 

What was Israel’s response?

Israel strongly rejected South Africa’s allegations of genocide, calling the claims “baseless” and lacking legal foundation. Lawyers for Israel presented its defence before the ICJ, arguing that the ICJ lacks jurisdiction because South Africa failed to communicate with Israel about the case before filing the application and that Israel has a right to defend itself under international law in response to Hamas’s attacks on 7 October 2023. They presented evidence that it is delivering food, water, medical supplies and fuel to Gaza, arguing that this demonstrates the opposite of genocidal intent. They also argued that issuing provisional measures against Israel would prevent it from acting in self-defence and allow Hamas to cause more harm. In response to South Africa’s allegations that statements by Israeli officials demonstrated genocidal intent, Israel argued that the quotes had been misinterpreted, taken out of context and based only on “random assertions.”  

Israel further challenged the allegations of genocide by arguing that Hamas employs tactics that intentionally place civilians at risk. It listed examples such as using civilian structures for military purposes and hiding weapons in hospitals. Israel also argued that it acted within the scope of international law by providing warnings in advance of attacks and informing civilians to evacuate. 

Why is the case being heard in the ICJ, not through the ICC? 

The ICJ is the principal judicial organ of the United Nations. It is different from the International Criminal Court (ICC), which is already investigating alleged war crimes committed by both Israel and Hamas. The ICJ’s primary function is settling legal disputes between countries, in accordance with international law. It can only hear a dispute when requested to do so by one or more UN member states. The claim made by South Africa in the ICJ involves a legal dispute between UN member states under the Genocide Convention. All states that signed the Genocide Convention are obliged not only not to commit genocide, but also to prevent and punish it. Under the Convention, any party to the Convention can bring charges of genocide against another at the ICJ, regardless of whether they are party to the conflict. Since South Africa and Israel are both parties to the Genocide Convention, South Africa was able to bring the case under the Convention and the ICJ has the mandate to hear such a dispute. 

On the other hand, the ICC was established by the 1998 Rome Statute and prosecutes individuals responsible for the most serious crimes of concern to the international community. Although the crime of genocide falls within the scope of the Rome Statute, South Africa’s claim does not involve criminal proceedings under the Rome Statute as it is not in relation to a particular individual or group of individuals. Hence, the criminal jurisdiction of the ICC is not invoked in this case.

Is the ICJ’s decision binding?

Once a judgment is delivered by the ICJ, it is binding upon the parties concerned and cannot be appealed. If the ICJ issues an interim injunction on the basis of South Africa’s requests, it would order Israel to immediately suspend its military operations in Gaza and would effectively initiate an immediate ceasefire to end the war and allow unfettered humanitarian aid to enter Gaza. However, the ICJ lacks enforcement powers. An inherent downfall of the UN and its institutions is the fact that their effectiveness is entirely dependent on the cooperation of states. This means little can be done if a major world power ignores a ruling made against them by a UN body. 

While the court’s orders are legally binding, they have been ignored in the past with no serious consequences. For example, in March 2022, one month after Russia invaded Ukraine, Kyiv filed a case against Russia at the ICJ. Ukraine requested the ICJ to implement emergency measures to halt Russia’s aggression. Despite delivering a binding legal ruling that Russia stop hostilities in Ukraine, Russia continued with its attacks. 

Another example occurred in 2019 when The Gambia filed a genocide case against Myanmar at the ICJ. It alleged that Myanmar failed its fulfil its obligations under the Genocide Convention by failing to prevent and punish acts of genocide committed against the Rohingya people. The ICJ ordered Myanmar to “take all measures within its power” to prevent the commission of acts defined in the Genocide Convention, including ensuring that its military refrain from committing these acts. In 2022, the ICJ rejected Myanmar’s objections to the case brought by Gambia. Although Myanmar was legally bound to comply with the ICJ’s order, there has been documentation of continuous breaches of the provisional measures. 

Nevertheless, ignoring a binding ruling by the ICJ can have implications on a nation’s international standing and the Security Council may take action. However, due to the veto power held by five major world powers, any resolution regarding enforcement is likely to be vetoed, particularly by the United States. 

What happens next? When can we expect a decision to be made? 

The initial hearings that took place before the ICJ are a first step in a case that will likely take several years to resolve. Due to the urgency of the case as a result of the rapidly rising death toll in Gaza, the court is expected to issue a decision in the coming weeks on whether to grant the requested provisional measures, and whether the case will proceed further. 

Judging from precedent, the request for provisional measures will likely result in the ICJ granting an interim order to prevent the war on Gaza from getting worse while the court examines the entirety of the case. However, at this initial stage, it is not necessary for the court to make a finding regarding whether Israel’s actions in Gaza actually amount to genocide. This determination would likely take several years. If the case does proceed, the court would hold further public hearings, Israel would be provided an opportunity to file an objection and eventually the court would deliver its final judgment. 

The ICJ ultimately faces an important test. If it fails to hold accountable states that perpetrate genocidal acts, it has the potential to lose much of its credibility. At the same time, South Africa’s claim emphasises the global duty of states to prevent genocide and play their part in fulfilling their obligations under the Genocide Convention. New Zealand is no exception to this and legal experts around the country urged the Government to support South Africa’s case against Israel at the ICJ. In 2022, New Zealand supported the case Ukraine brought to the ICJ against the Russian invasion of Ukraine and even sent a legal team to the court to support Ukraine’s case. 

As the world watches from the sidelines as the war on Gaza reaches the ICJ, the lives of civilians remain at stake, reminding the international community of the role we play in working together to protect innocent lives and to ensure that the committing of mass atrocities do not go unpunished.