François Dubuisson, professor of international law at the Free University of Brussels, analyzes the issues at stake in South Africa's lawsuit at the International Court of Justice (ICJ). The UN justice agency is holding hearings on Thursday January 11 and Friday January 12 in The Hague, Netherlands, after Pretoria made an inquiry into “acts of genocide” allegedly committed by Israel during its military operations in the Gaza Strip were committed.
Published on: January 10, 2024 – 5:52 p.m
4 mins
RFI: The International Court of Justice (ICJ) is the principal judicial body of the United Nations. When has she ever dealt with the Israeli-Palestinian conflict?
François Dubuisson : The ICJ decides on disputes between states and can issue opinions when a legal question is asked of it. She has been questioned in the past about the legality of the wall built by Israel on Palestinian territory. She had established the illegality. For several months now, it has received a second request for comment, which relates much more generally to the nature of Israel's occupation of Palestinian territories. The hearings are scheduled to take place in February.
After the Hamas attacks on October 7 and the start of the war in Gaza, South Africa turned to the International Court of Justice and asked it to rule on possible acts of “genocide”. Is it a first?
Yes, this is the first time that an intergovernmental case has brought Israel before the International Court of Justice. The proceedings are based on the 1948 Genocide Convention. The briefs focus exclusively on this limitation: Do the military operations carried out by Israel in the Gaza Strip, the difficulties in accessing humanitarian aid and the consequences for the Palestinian population fall under the qualification of “genocide”?
Also read: South Africa accuses Israel of “genocide” in Gaza before international justice
How will the two days of hearings in The Hague go this week? And what comes next?
At this stage of the proceedings it is an application by South Africa for interim measures. It is a type of emergency summary in which South Africa calls on the Court to take measures imposed on Israel to avoid the risk of irreparable harm. The court could announce them very quickly, ordering Israel to refrain from a number of actions or ordering it to provide more humanitarian aid to prevent a possible genocide. At this point, the court will not decide whether what Israel is doing constitutes genocide or not.
Will the next step be to examine the matter?
Yes, the final analysis of Israel's actions will likely take several years. Quite a long period of time, so there is an interest in precautionary measures to try to get a handle on current events.
What means are there to make the measures that the ICJ could order binding?
They would be mandatory, but that does not mean Israel would comply with them. But precautionary measures would be a means of exerting pressure on other states. In fact, under the Genocide Convention, all States Parties have an obligation to prevent genocide. So if the court says a series of measures must be taken to prevent genocide, it could encourage states to increase their pressure on Israel.
In parallel with these proceedings before the International Court of Justice (ICJ), the International Criminal Court (ICC) began to deal with the events of October 7, 2023 and the wars that followed. What is the difference between these two procedures? And aren't they at risk of stalling or failing, further undermining the credibility of international justice?
Unlike the International Court of Justice, the ICC has jurisdiction to judge individuals. Since Israel is not a party to the International Criminal Court, it has no obligation to cooperate. And the ICC can only conduct proceedings if the defendants are present in The Hague. She cannot judge them in their absence. It is true that there is a question of credibility: the ICC has often been criticized for being primarily interested in conflicts in Africa and little in the responsibilities of Western states.
Nevertheless, we see that two international courts (ICJ and ICC) are likely to have jurisdiction and will act, even if it will take some time. They are likely to have the Israeli-Palestinian conflict under control, which is not that common.
Also consult International Justice: on how the fight against impunity works