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The ICJ, based in The Hague, Netherlands, serves as the United Nations’ principal judicial organ, focusing on settling disputes between states and providing advisory opinions on legal matters. Unlike the International Criminal Court (ICC), the ICJ does not prosecute individuals for severe crimes such as genocide but holds sway over international institutions and the UN.
The ICJ, often referred to as the World Court, stands as the highest legal body within the United Nations, adjudicating issues between member states. It operates independently from the International Criminal Court (ICC), focusing on state-level disputes. Comprising 15 judges with nine-year terms, the ICJ’s rulings are binding and cannot be appealed by member states, though enforcement relies on the UN Security Council.
South Africa’s case centers around allegations that Israel is committing genocide against Palestinians in Gaza. The catalyst for this legal action was Hamas’s October 7th attack, where hundreds of gunmen crossed into southern Israel, resulting in civilian casualties and hostages. South Africa contends that Israel’s actions, both commission and omission, are genocidal, aiming to destroy a substantial part of the Palestinian national, racial, and ethnic group.
South Africa accuses Israel of committing genocide in Gaza, violating the 1948 Genocide Convention to which both nations are signatories. The allegations include the killing of Palestinians, destruction of homes, expulsion and displacement, blockade on essential resources, and measures impeding Palestinian births. South Africa urgently calls for provisional measures to prevent further harm to the Palestinian people, emphasising the continuous violation of their rights under the Genocide Convention.
Under international law, genocide involves acts with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The acts include causing harm, deliberately inflicting adverse conditions on the group, preventing births, and transferring children to another group.
The two-day public hearing in South Africa’s genocide case against Israel at the ICJ, also known as the World Court, were held on Thursday, January 11, 2024 and Friday, January 12, 2024, triggering worldwide anticipation. Pro-Palestinian campaigners are looking to the ICJ as a potential avenue to halt Israel’s devastating campaign, which has resulted in over 23,000 casualties, including nearly 10,000 children.
South Africa has urged the ICJ to order an emergency suspension of Israel’s military campaign in Gaza, amongst the 9 injunctions it has filed. Others include taking measures to prevent the genocide of Palestinians, ensuring displaced return to their homes and have access to humanitarian assistance, including adequate food, water, fuel, medical and hygiene supplies, shelter and clothing and taking necessary steps to punish those involved in the genocide and preserve the evidence of genocide.However, the ICJ is under no obligation to order the actions as South Africa has suggested.
Israel vehemently rejects the genocide allegations, attributing them to Hamas and highlighting its commitment to acting morally in its military operations. Senior Israeli officials label the case as “preposterous” and a “blood libel,” asserting that the actions in Gaza are in self-defence. The legal community debates the merit of South Africa’s case, considering factors such as evidence, international law, and Israel’s right to self-defence.
The UK, in support of Israel, deems South Africa’s legal action unjustified, emphasising Israel’s right to self-defence within the framework of international law. The legal community closely watches as the ICJ hears arguments and weighs the legal validity of the case.
While the initial proceedings are expected to last a few weeks, providing a swift decision on South Africa’s urgent request, the main case may extend over several years. The ICJ’s meticulous deliberative process involves detailed submissions, oral arguments, and counter-arguments, with a final verdict potentially taking three to four years.
Following the proceedings on provisional measures, ICJ judges will vote to decide on a sentence, with impartiality expected but historical instances revealing potential influences. The international community has displayed varying responses, with countries such as Malaysia, Turkey, and members of the Organisation of Islamic Countries backing South Africa’s suit. The European Union remains silent, while the United States, a staunch supporter of Israel, denies the allegations of genocide but emphasises the need for Israel to prevent civilian harm and investigate humanitarian crime claims.
The International Court of Justice has delivered a preliminary ruling on January 26 2024. As of now, the ICJ has ordered Israel to take steps to prevent a genocide. These actions encompass intentionally imposing living conditions aimed at causing the physical destruction of Gazans, executed with the purpose of annihilating the Gazan population. In addition, to minimize the potential for genocide, the court directed Israel to promptly and efficiently facilitate the delivery of humanitarian aid and essential services to Gaza.
In particular, Israel is required to grant unhindered access for essential humanitarian provisions such as food, water, medical assistance, fuel, and other necessities into Gaza, without imposing unwarranted delays or arbitrary restrictions on the quantity or nature of aid.
The cessation of telecommunications blackouts is imperative to facilitate the seamless delivery and distribution of aid throughout Gaza. Israel must refrain from obstructing the distribution of humanitarian assistance within Gaza and curtail its military operations in the region to ensure the unimpeded delivery and distribution of humanitarian aid across all areas of Gaza. Importantly, Israel is prohibited from targeting civilians who are awaiting humanitarian aid, safeguarding their safety during such critical moments.
While the ICJ’s order is legally binding on Israel along with the Genocide and Geneva Conventions, the enforceability of such orders remains questionable. Historical instances, such as the ICJ’s order to Russia in 2022 regarding Ukraine, highlight the challenges of enforcing rulings. In practice, compliance with ICJ orders is often elusive, raising questions about the court’s effectiveness in halting conflicts.
In an unexpected turn of events, South Africa’s legal manoeuvre extends beyond Israel. South African lawyer Wikus Van Rensburg and nearly 50 colleagues are now preparing a separate lawsuit against the US and UK, alleging complicity in Israeli war crimes. The lawsuit aims to prosecute those deemed complicit in civilian courts, marking a significant development in the legal landscape.
The ICJ case against Israel is expected to guide this new lawsuit, with potential implications for both the US and UK governments. If the ICJ rules in favour of South Africa, it may set a precedent for legal consequences against nations viewed as complicit in alleged war crimes.
South Africa’s legal challenge against Israel at the ICJ has opened a Pandora’s box of legal complexities and potential repercussions. As the international community closely observes the proceedings, the legal validity of the genocide allegations will shape the narrative. The unexpected extension of legal action to implicate the US and UK shows how quickly the international legal landscape can shift based on geo-politics.
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