The International Court of Justice (ICJ) on Thursday commenced public hearings on the genocide case filed by South Africa against Israel. South Africa accused Israel of committing genocide in its war on Gaza. Israel will present its response on Friday.
The case marks the first time the ICJ has examined Israel’s military operations the Gaza. Since 7 October, Israel has killed over 23,000 Palestinians, most of whom women and children. South Africa filed the lawsuit on 29 December.
South Africa accuses Israel, a fellow signatory to the 1948 UN Genocide Convention, of violating the Convention through the killing of civilians, mass expulsion and displacement of Palestinians, and the destruction of their homes. The case brings attention to the severe allegations, including the blockade on food and destruction of essential health services, allegedly intended to bring about the destruction of Palestinians as a group. Over 85 percent of Gaza’s population has been displaced since 7 October, with aid agencies warning of a famine risk.
The lawsuit seeks urgent interim measures from the ICJ, including the withdrawal of the Israeli military from Gaza and halting to bombings. If approved, the ICJ could issue an order within weeks, as demonstrated in past cases like Ukraine v Russia.
A comprehensive judgment on whether Israel committed genocide might take years.
The International Court of Justice comprises 15 judges from diverse regions and is expected to maintain impartiality, though past instances have shown the influence of national affiliations on judicial decisions.
Both nations have exercised their right to appoint ad hoc judges to the ICJ bench. This decision comes as the 15 sitting judges do not represent Israel or South Africa. Israel’s choice for an ad hoc judge is Aharon Barak, a former Supreme Court chief justice and Holocaust survivor. Barak, however, has faced accusations of legitimising the Israeli occupation of Palestine during his tenure on the top court. On the other side, South Africa has appointed Dikgang Moseneke, a former deputy chief justice.
During the ongoing preliminary hearings, a critical aspect is whether the ICJ has jurisdiction in the case. Typically, jurisdiction is established when the involved states acknowledge the court’s authority or are parties to a relevant treaty. South Africa and Israel are signatories to the Genocide Convention which makes them subject to the ICJ’s interpretations of it.
The establishment of jurisdiction may seem straightforward. However, it is uncertain if Israel will dispute the ICJ’s authority. Professor Michael Becker notes that challenging jurisdiction often becomes a last resort for losing parties.
If ICJ rules against Israel, Tel Aviv must legally comply with the court’s decision. However, the ICJ lacks real enforcement power despite having binding judgments. The potential challenge for South Africa is that an adverse judgment may not guarantee compliance by Israel.
The ICJ relies on the United Nations Security Council (UNSC) for enforcement. If Israel refuses to comply, South Africa can turn to the UNSC to enforce the court’s decision. However, the presence of the United States, a supporter of Israel, as a permanent member with veto power raises concerns about the effectiveness of enforcement measures.
Historically, the US exercised its veto power in the UNSC to block resolutions related to the Israel-Palestine conflict. This practice raises doubts about the UN’s ability to enforce the ICJ’s decisions, potentially shielding Israel from punitive measures.
Analysts highlight that the case’s significance extends beyond the ICJ’s judgment. The process can generate international pressure on Israel, contribute to documenting the experiences of victims, and name and shame perpetrators. The case may also set an international precedent for accountability in conflicts.
