An Analysis of the International Court of Justice in the Light of the Republic of South Africa v. State of Israel

International Court of Justice Law Insider

By Tanishka Tiwari

Published on: January 13, 2024 at 11:12 IST

The International Court of Justice (ICJ), founded in 1945, is the primary judicial organ of the United Nations (UN), tasked with resolving legal disputes between states and providing advisory opinions on legal issues referred by other UN organs.

The Court functions based on international law principles and strives for impartiality in its decisions. Its headquarters are located at the Peace Palace in The Hague, Netherlands. It is notable as it is the only UN primary organ not based in New York.

It is the United Nations’ highest judicial organ, the World Court. It commenced operations in 1946, replacing the Permanent Court of International Justice, housed in the Peace Palace since 1922. All 193 UN member nations are automatically parties to the Court.

Nations not members of the United Nations may become parties to the Court’s statute through the Article 93 procedure. The ICJ’s primary role is to resolve disputes submitted by parties following international law. The Court also provides advisory opinions on legal issues filed by any UN body or specialised agency.

According to the UN Charter, the United Nations Security Council (UNSC) can enforce ICJ decisions. However, the permanent members of the UN Security Council have the right to veto any such decision. The ICJ’s official languages are English and French.

The ICJ has been in the news recently because, on December 29, 2023, it was reported that the Republic of South Africa filed a complaint with the Court against Israel, alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which went into effect in 1951.

According to the application, filed under Article IX of the Genocide Convention, Israel “intend[s] to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnical group, that being part of the Palestinian group in the Gaza Strip.” South Africa claims that Israel has failed to prevent genocide, has failed to pursue public incitement to genocide, and has directly committed genocide in Gaza.

The application seeks expedited proceedings before the ICJ and the designation of interim measures under Article 74(4) of the ICJ Rules of Court. The last motion would involve the ICJ’s president requesting that Israel cease all actions in Gaza that constitute or give rise to violations of the Genocide Convention while the case is before the ICJ.

South Africa alleges in its application that Israel has killed a large number of Palestinians; inflicted “conditions of life intended to bring about [Palestinians] destruction as a group”; caused mass displacement and destruction of homes; denied Palestinians access to adequate food, water, shelter, medical care, and sanitation; and imposed measures that prevent Palestinians from giving birth.

Israel has agreed to go before The Hague-based International Court of Justice (ICJ) to defend itself against South Africa’s genocide crime prosecution. The Israeli Foreign Ministry fiercely denounced South Africa for filing a case at the International Court of Justice to examine its atrocities in Gaza. The Israeli Foreign Ministry branded the South African effort as a “blood libel” against Israel in its applications to the ICJ in a statement.

The ICJ is made up of 15 judges. Each judge is appointed for nine years. They are elected freely by the UNGA and the UN Security Council. The candidate must receive an absolute majority in the UNGA and the UNSC to be elected. In the ICJ, no two judges can be of the same nationality.

Elections for one-third of the seats are held every three years, and retiring judges may be re-elected. Members of the ICJ are not representatives of their governments but relatively independent judges. The judges must have the qualifications required in their respective nations for appointment to the highest judicial posts or be recognised international law jurists.

The judges are distributed according to region:

  • Three are from Africa
  • Two are from Latin America and the Caribbean
  • Three are from Asia
  • Five are from Western Europe and other countries.
  • Two are from Eastern Europe.

There is a President, a Vice President, and a Registrar among the 15 judges. Every State government that is a signatory to the Charter appoints a body to submit candidates for the post of ICJ judges.

Contentious Jurisdiction

The ICJ can hear and resolve legal disputes between states. Article 36(1) of the International Court of Justice Statute provides for this jurisdiction. States may submit to the court’s jurisdiction by signing a treaty or submitting a remarkable agreement about all matters specifically allowed for in the United Nations Charter or treaties and conventions already in force.

Advisory Jurisdiction

The ICJ has the authority to issue non-binding advisory opinions on legal issues brought to it by UN organisations and specialised agencies. Article 96 of the UN Charter (UNGA, UNSC, or other UN Organs may request an advisory opinion from the ICJ) and Article 65 of the ICJ Statute (ICJ may issue an advisory opinion based on such request) provide for this authority.

Preliminary Jurisdiction

Article 36(6) of the ICJ Statute provides for this authority. In a dispute over whether the Court has jurisdiction, the Court’s decision will be final.

Compulsory Jurisdiction

The ICJ’s authority is to hear and resolve legal disputes between states where the parties have accepted the court’s mandatory jurisdiction. Article 36(2) of the ICJ Statute provides for this authority. States may take the court’s compulsory jurisdiction by filing a declaration under Article 36(2) of the International Court of Justice Statute.

The following are examples of matters that can be heard under compulsory jurisdiction:

  • the interpretation of a treaty;
  • any question of international law;
  • the existence of any fact that, if established, would constitute a breach of an international obligation; and
  • the nature or extent of the reparation to be made for a breach of an international obligation.

The South African proceedings against the State of Israel concerning alleged violations by Israel of its obligations under the Genocide Convention concerning Palestinians in the Gaza Strip is an International Court of Justice proceeding that initially requests the Court to render provisional measures of protection and accuses Israel of committing genocide in Gaza in violation of the Genocide Convention.

While the term ‘genocide’ is often used loosely when referring to attacks on diverse populations around the world, it has been defined using specified criteria in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which was passed in the General Assembly in 1948. The term originates from two words: ‘genos’, meaning race, nation, or tribe, and ‘cide’, meaning killing.

According to the convention, ‘genocide’ is defined as “any of the following crimes done to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such:

  • Killing group members;
  • Causing serious bodily or mental harm to group members;
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  • Imposing measures to prevent births within the group; and
  • Forcibly transfer children from the group to another group.

Furthermore, the convention states, “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide…

Following its appeal to the International Court of Justice, South Africa’s presidency stated in a statement that the country was obligated “to prevent genocide from occurring,” according to the BBC. The case requests that the International Court of Justice hold a hearing next week and give “provisional measures” to avoid the carnage in Gaza.

Israel has fiercely reacted, with its foreign ministry declaring, “Israel rejects with disgust the blood libel spread by South Africa.” Even if the hearing requested by South Africa is held and the ICJ provides “provisional measures,” Israel can disregard them.

The Genocide Convention is a significant international treaty that defines genocide and requires State Parties to prevent and punish genocide. The world was caught in the complexities of growing tensions, with major power blocs embroiled in ideological disputes that hit the shores of geopolitical interests, resulting in a slew of confrontations. This sparked a compassionate spirit in the United Nations, leading to the recognition of humanitarian difficulties caused by the Second World War.

The United Nations General Assembly adopted a resolution in December 1947 that declared “Genocide” as an international crime involving the national and international responsibility of individual persons and states, formalising the recognition of atrocities on people as a brutal outcome of the Second World War.

The UNGA adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, and it entered into force in 1951. The convention has been broadly recognised by the international community, with the majority of states supporting it.

The convention has provided a clear definition of genocide and several other features incorporated in its 19 articles. The essential concepts of the Genocide Convention have been acknowledged by the International Court of Justice (ICJ). The Genocide Convention functions as an instrument of international law, resulting in the codification of genocide as a crime for the first time.

The Genocide Convention now has around 152 member states involved. Mauritius is the most recent country to sign the agreement, but it has yet to be ratified. The Special Advisor on the Prevention of Genocide urges all United Nations Member States that have not yet ratified or acceded to the Genocide treaty to do so as soon as possible so that the treaty can be transformed into an instrument of universal membership.

The essential concepts of the Genocide Convention have been acknowledged by the International Court of Justice (ICJ). The Genocide Convention functions as an instrument of international law, resulting in the codification of genocide as a crime for the first time.

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide. Article 1 defines genocide as a crime under international law, whether perpetrated in times of peace or war. Article 1, as interpreted by the ICJ, pertains to nations’ commitment not to commit genocide and to prevent such extraterritorial incidents. The acts that will be punished are listed in Article 3 of the Genocide Convention. These are the punishable offences:

  • Genocide
  • Intent to commit genocide
  • Incitement to commit genocide, both direct and public
  • Attempt genocide
  • Genocide complicity

Under the terms of the convention, States Parties are required to take measures to prevent and punish genocide. Article 4 requires member nations to prosecute those who perpetrate genocide, regardless of whether they are constitutionally responsible rulers, public servants, authorities, or private citizens.

Article 5 imposes a responsibility on nations to implement the provisions of the Convention through necessary legislation. This item also includes a provision for guaranteeing adequate punishment under the Convention for those found guilty of criminal activity.

According to Article 6 of the Convention, a person charged with genocide must be tried in a competent tribunal of the State whose territory the act was committed or in an international penal tribunal with accepted jurisdiction.

Extradition is a responsibility under Article 7, where genocide allegations are involved, as well as laws and treaties in force. This is related to the protection provided by international human rights law, which prohibits refoulement in situations where there is a severe risk of human rights breaches in the receiving state.

This obligation, along with the prohibition against committing genocide, is considered a principle of international customary law and is binding on all governments, regardless of whether those states have ratified the Convention.

This is not South Africa’s first-time criticising Israel. When the violence first erupted in October, President Cyril Ramaphosa and his African National Congress were covered in traditional Palestinian scarves, speaking to the press about “the atrocities that are unfolding in the Middle East.

Later, the government severed diplomatic ties with Israel. All of this, even though South Africa is Israel’s most prominent commercial partner on the African continent, stands to benefit from a positive relationship with the Jewish state.

On the other hand, South Africa’s solidarity with Gaza has long roots.

South Africa, like many other countries that experienced the weight of colonialism and occupation, such as India, has generally been sympathetic to the plight of the Palestinians. It established diplomatic ties with Palestine shortly after its own Apartheid regime was deposed in 1990.

South Africa’s support for Palestine stemmed from a variety of factors. The first was, of course, its own experience with discrimination and disempowerment, which made it sensitive to what was happening to Palestinians under Israeli control. Nelson Mandela, like Mahatma Gandhi, advocated hard for Palestinian rights.

Furthermore, Israel was perceived mainly as a state propped up by Western backing, and South Africa had not forgotten the West’s involvement in maintaining apartheid. It had reasons to ally with Russia, which had provided military training to individuals opposed to the Apartheid regime. South Africa’s posture was substantially the same as that of many other African countries for many years after the establishment of Israel.

However, many African countries, notably South Africa, have softened their stance towards Israel over time. Africans found few grounds to continue their opposition as more Arab countries accepted the Jewish state. Another critical component was what rich and technologically advanced Israel had to give, such as new agricultural technologies, assistance money, and military training. Al Jazeera says, “By 2021, trade between Israel and Sub-Saharan African countries will have exceeded $750 million. Israel exports equipment, electronics, and chemicals to Africa. Nearly two-thirds of that were traded with South Africa…

Another reason South Africa has remained staunchly supportive of Palestine is the ruling ANC’s historic ties to anti-discrimination action. Indeed, ANC officials and other apartheid opponents have long likened Israel’s treatment of Palestinians to the White government’s treatment of Black South Africans.

Another has been to oppose a worldview dictated by the West’s position on critical issues. This was also evident when African nations were pressed to join forces against Russia during its invasion of Ukraine, and South African Minister of International Relations and Cooperation, Naledi Pandor, questioned why the Western powers would not denounce Israel.

The issue of jurisdiction is crucial. The ICJ has jurisdiction when both parties agree to its adjudication or where treaties or conventions expressly grant the court authority. In this case, Israel’s claim of jurisdiction emphasised the difficulties in adjudicating matters involving highly politicised conflicts.

While the ICJ’s jurisdiction is limited to cases in which both parties freely submit to its authority, it can also issue advisory opinions on legal matters brought by authorised UN organisations, even if the interested governments do not comply. In this case, the ICJ’s exercise of jurisdiction was hampered by Israel’s lack of permission, highlighting the challenges of applying international law to disputes involving unwilling parties.

The case highlighted the complexities of international law regarding state responsibilities, human rights, and the protection of civilian populations in occupied territories. In deliberations, the ICJ would have to navigate multiple legal treaties, notably the Fourth Geneva Convention, establishing occupying parties’ responsibility to civilians during armed combat.

The main issue was whether Israel’s actions and policies, such as settlement expansion, land expropriation, and mobility restrictions, were violations of international law and amounted to apartheid-like tactics. The interpretation of these events by the court in light of current legal frameworks would have far-reaching repercussions for comparable conflicts around the world.

The Republic of South Africa v. State of Israel case highlighted the difficulties in addressing disputes with historical, political, and humanitarian complications within the framework of international law. The politicisation of conflicts frequently impedes the efficient application of legal principles and the execution of judgements, particularly when one party challenges the court’s jurisdiction.

Furthermore, the repercussions of an ICJ decision would go beyond the immediate parties concerned, potentially setting precedents for similar conflicts worldwide. In this instance, the interpretation of international law may impact the approach to human rights protection in occupied territories and define future legal frameworks for dealing with similar situations.

The case of the Republic of South Africa v. State of Israel before the International Court of Justice exemplifies the difficulties of adjudicating complicated conflicts, including charges of human rights breaches, state sovereignty, and interpretations of international law. While the ICJ is a pillar of international legal resolution, its effectiveness is predicated on disputing parties voluntarily submitting to its jurisdiction.

This case emphasises the importance of having a nuanced grasp of international law and the complexities of dealing with disputes that have historical, political, and humanitarian roots. In this case, the ICJ’s eventual conclusions and interpretations will not only influence the parties involved. Still, they will also determine the trajectory of international law covering occupied areas and civilian population protection worldwide.


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