The International Court of Justice (ICJ) is set to start hearing the case filed by South Africa against Israel, accusing it of genocide in its ongoing war against Gaza. A 17 -judge pannel, including two additional judges, each from the side of both the parties, will hear the case on January 11 and 12.
The hearing is set to happen at a time when the death toll in Gaza has climbed over 23,200, according to the Gazan health ministry.
Going by media reports, more than half of the people killed are children and women. More than 100 journalists have also been slain by the Israeli military in Gaza.
Several countries, including Iran, Turkey, Saudi Arabia, Morocco, Bolivia, Pakistan, Jordan and the Maldives have come out in support of South Africa’s petition, while the US have sided by Israel.
With this context, let us examine how the case at ICJ can affect the ongoing war. Can the petition result in an end to the military campaign? Can ICJ take action against Israeli leaders? Let's dig deeper.
What is ICJ?
The ICJ, established in 1945 and based in Hague, Netherlands, is the highest United Nations (UN) legal body, which settles disputes between states.
It should be noted that the ICJ only looks at cases involving states. For cases of war crimes and genocide involving individuals, there is another UN agency called the International Criminal Court (ICC).
The 15-judge pannel of ICJ handles cases where the states accuse others of breaking UN treaties which the states are a part of. It also deals with border disputes and other cases. ICJ has a general jurisdiction and is not limited to any area or region.
Coming to the case filed by South Africa, Israel is accused of carrying out a genocide in Gaza, which goes against the 1948 Genocide Convention signed by both parties.
According to the Genocide Convention which came into force on January 12, 1951, “genocide, whether committed in time of peace or in time of war, is a crime under international law” and the states signing the treaty are obliged to “prevent and to punish” it.
The Convention defines genocide as: “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to 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; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
The 84-page application submitted to ICJ by the African country notes that the “acts and omissions by Israel are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group…in the Gaza Strip.”
“The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction,” the application reads.
The petition also says that Israel, despite being a signatory of the Genocide Convention, has failed to prevent genocide and continuously violates the treaty by committing genocide against Palestine.
“…against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self-determination — Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide.”
The application highlighted that other crimes committed by Israel against Palestinians, including the blockade and “grave breaches of the Fourth Geneva Convention” should also be considered by the court.
South Africa also came down heavily on Israel’s military campaign targeting civilians and cultural-religious centres in Palestine — “including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare.”
Substantiating its accusation on Israel, South Africa in its petition to ICJ also lists out statements from Israeli officials that directly or indirectly point towards inciting genocide against Palestinians.
The South African complaint refers to an October 12, 2023, statement by Israeli President Isaac Herzog, in which he sought to attribute responsibility for the attack on ordinary civilians in the territory. : “It’s an entire nation out there that is responsible,” he had said. “It’s not true, this rhetoric about civilians not aware, not involved. It’s absolutely not true. They could have risen up against that evil regime, which took over Gaza in a coup d’etat. But we are at war. We are at war. We are defending our homes. We are protecting our home. That’s the truth. And when a nation protects its homes, it fights. And we will fight until we break their backbone.”
The petition also points out a statement made by Israel Prime Minister Benjamin Netanyahu on 16th October, 2023, in which, he described the situation as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.”
This was when Israel was being criticized by the international community for its intense bombing that targeted residential buildings in Gaza and killed hundreds of children in the initial days of the war.
Apart from these, the petition also includes statements by Israel ministers that might help prove South Africa’s allegations against Israel in the court.
What can the ICJ do?
The trial in ICJ can take up to several years. This means ICJ cannot suddenly intervene to stop the war in Israel. However, it can order provisional measures which will bind the respondent state, (in this case, Israel) to refrain from ‘certain actions that will cause irreplaceable harm’, while the trial is going on. So far, in all the genocidal cases brought to ICJ, the court has ordered for provisional measures.
In the first hearing happening tomorrow, ICJ will decide on whether to issue provisional orders to stop the military campaign of Israel in Palestine. Israel and South Africa will be allocated two hours each to argue on the matter. The decision is usually taken by the court within one-two months of the hearing.
However, even if a provisional measure is issued, the state may not abide by it. For example, responding to a case filed on the Ukraine-Russia war in 2022, the ICJ had ordered Russia to immediately cease its military operations in Ukraine. But the war in Ukraine still goes on.
However, there has been the case of genocide against Rohingya Muslims in Myanmar, where an intervention by the ICJ was followed by a drop in violence.
In the current case, the provisional measures requested by South Africa include suspension of Israeli military operations in Gaza, stopping the killing of Palestinians and prevention of forced displacement and deprivation of access to adequate food, water, fuel, shelter and sanitation.
The ICJ can also issue provisional measures different from those requested.
After deciding on the provisional measures, the court will hear arguments from the part of Israel regarding the merit of the case. If the preliminary objections don't stand, then the court will make a judgement regarding whether Israel has committed a genocide in Gaza. This process can take more than a decade. If ICJ finds Israel guilty of genocide, it can order the state to pay a compensation.
The only genocide case in which the ICJ has delivered a judgement so far is regarding the Bosnian genocide filed in 1993. The court took 14 years to hear the matter and finally ruled that Serbia did violate its obligation to prevent genocide against Bosnian civilians.
However, what the ICJ can do in the Israel-Palestine issue is yet to be seen.