Let’s begin at the beginning. Just what is the International Court of Justice?

“The International Court of Justice (ICJ) is one of the main bodies of the United Nations. Coincidentally, from my office at the ISS in The Hague I look out on the Peace Palace, where the ICJ has its seat. The ICJ consists of fifteen judges from different countries in all regions of the world and has two main functions. The first is that of chief legal adviser to the United Nations. UN bodies can seek advice on any international legal issue, for example on the responsibilities of states with regard to climate change. The ICJ can issue an advisory opinion.  This is a non-binding ruling, so countries have the option of disregarding advice.

“The second function is the settlement of disputes between states. If states disagree with each other on legal issues between them, they can take these to the ICJ under certain circumstances. This is only possible if the states concerned have recognised the ICJ’s jurisdiction or if they have signed a treaty giving the ICJ jurisdiction to adjudicate disputes on that treaty. Rulings resulting from such cases are binding: countries must abide by them.”

Karin Arts is a professor of international law and development at the International Institute of Social Studies (ISS), which is part of the EUR. She studies the role of law in development issues, and in recent years has focused on human rights and children’s rights. She is also a vice-dean of education. Arts made working visits to Palestinian territories in 2007 and 2013.

How is this for South Africa’s case against Israel?

“This is a dispute between two states. South Africa accuses Israel of committing acts of a genocidal nature against Palestinians in the Gaza Strip. It bases its case on the Genocide Convention, to which both South Africa and Israel are bound as signatories. This treaty says that if actions occur that could be related to genocide, states who are party to the treaty can ask the ICJ to adjudicate a case. Israel could have declined to cooperate, but that would not have stopped the case. I think it is good that Israel is cooperating and is arguing the case from its side. This ensures that all arguments are addressed, and it adds to the weight of the final ruling.”

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How does the process work?

“South Africa submitted the case to the ICJ. Initially, neither Israel nor South Africa had a judge of their own nationality on the ICJ. Therefore, both countries were allowed to nominate a judge to be appointed for this case. A total of seventeen judges were appointed. They first had to decide whether the matter was potentially covered by the Genocide Convention.

“They found it was. The judges concluded that Israel’s actions in Gaza were potentially genocidal. The ICJ thus found itself to have jurisdiction and can now proceed to hear the main case. This could take years. The stakes are high, though: there is a risk that there will be so many unnecessary deaths and injuries that an eventual verdict comes too late to make any difference. The ICJ can therefore also impose provisional measures. It did so in a binding ruling on 26 January.

What did those measures entail?

“Israel must do everything within its power to prevent acts of genocide in Gaza. It should also take immediate and effective measures to enable the delivery of sufficient humanitarian aid in the area. One month after the Court’s ruling, Israel had to report on how it had implemented the imposed measures up to that point. Israel has submitted a report, but little detail has come out about the contents. In the meantime, there have been many more deaths and injuries. There is now also famine in Gaza. This has all been documented, including by UN organisations such as the World Health Organization and UNICEF.

“Because of the deteriorating situation, South Africa raised the alarm again, stating that the first provisional measures are already insufficient. Accordingly, the ICJ issued a second ruling on 28 March. All judges except those of Israel and Uganda reaffirmed the provisional measures of 26 January. The ICJ added additional measures. Among other things, Israel must do more to allow humanitarian aid into Gaza unimpeded and on a large scale.”

Did the ICJ adopt everything South Africa demanded?

“It did not. The preliminary ruling of 28 March states that the ICJ cannot adopt South Africa’s first three proposals. In it, South Africa demanded an immediate ceasefire by all participants in the conflict and the release of all hostages and prisoners. South Africa also wanted the ICJ to formulate obligations for parties to the Genocide Convention other than Israel. However, the case at hand is only about Israel and not about other countries or Hamas. The ICJ therefore decided not to adopt this suggestion. This is a somewhat formalistic but legally correct position.

“In the meantime, there is a pending request by the UN General Assembly for an advisory opinion from the ICJ on Israel’s occupation of Palestinian territory. This would provide the ICJ with a way of clarifying the position of other countries in this conflict and what they must adhere to. This is relevant because no party to the Genocide Convention is allowed to contribute to genocide in Gaza, for instance through arms supplies. “

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The ICJ has previously addressed the Israel-Palestine issue. How is this different from then?

Back in 2004, the ICJ issued an advisory opinion. It was about the construction of the separation wall between Israel and Palestinian territories. The Court concluded at the time that this was unlawful. Its advice was that Israel should stop creating partitions and compensate the damage caused to the Palestinian people. If you approach it purely from a point of view of international law, the issues addressed in these lawsuits are quite clear in a legal sense: Israel is the occupying power and is in the wrong.”

Whether Israel is an occupier seems to me to be the key question in this case. How does the ICJ establish something like that?

“By looking at the situation on the ground. Who controls the territories and the people who live there? It is clear that Israel controls and rules over much of the Palestinian territories. In the West Bank, for example, there is an administrative law entirely created and enforced by Israel. Israel has closed off the Gaza Strip on all sides and controls its borders. These are clear, factual circumstances.”

In practice, what do Palestinians gain from these ICJ rulings?

“In practice, relatively little has been done so far to change Israel’s actions because it has very powerful allies. However, its international support is now on shakier ground. The ICJ can set an example here, even if it does not rule on other countries in all cases.

“National judges, too, can use ICJ rulings to issue binding rulings at much shorter notice. This is already happening. In the Netherlands, for example, we have just seen the court case over the supply of fighter jet parts to Israel. The national judges of the Court of Appeal in The Hague ruled that there is a clear risk of Israel committing serious violations of international humanitarian law in the Gaza Strip and of the fighter jets being used for that purpose.”

em-genocide_internationaal recht icj tanks_de kwestie_apr2024_Bas van der Schot
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How will the case at the ICJ proceed from here?

“Israel’s next obligation to report is at the end of April. Meanwhile, both sides may start presenting their arguments on the main case to the ICJ. They may respond to each other’s arguments, both in writing and later at a comprehensive hearing that will last several days. The Court will then withdraw to review everything and reach a verdict. The full process could take years.

“Based on the two provisional measures, I think it’s unlikely that the ICJ will conclude in its main verdict that Israel’s actions are not potentially genocidal. Unfortunately, there is a lot of evidence that this is the case. One concern, though, is that given the situation in Gaza, it is extremely difficult to collect and secure evidence.”

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What would be the consequences of such a verdict?

“Benchmarks on genocide are part of the very highest benchmarks in international law. So this is very serious. In the case of such a verdict, Israel would be legally liable for the consequences. First, of course, the country would have to stop acting illegally. Next, under international law, the state must do everything in its power to return the situation to how it was. If it cannot, it is obliged to pay damages.

“The question, of course, is whether this is at all possible. How can the Israeli state compensate the damage? I don’t believe it can be done at either the individual level or the level of Palestinian society and culture. The damage done is so catastrophic.    Recognition and practical facilitation of the state of Palestine would be a step in the right direction, though. Usually, the ICJ first lets the parties decide between themselves what would be proper damages. If they fail to reach agreement, the ICJ can rule on this.”

What does it mean for South Africa to have submitted this case?

“It is interesting that South Africa, a country in the Global South, is bringing this case against a country often seen as Western or European. It shows a certain vigour and assertiveness on the part of South Africa. Of course, South Africa’s apartheid past puts it in a good position to bring credibility to this case. But aside from this, it is striking that it prepared the case very thoroughly. At the ISS, we followed the January hearings from start to finish. I was impressed by the way South Africa argued the case and how cleverly and strategically it had put together its arguments.

“I see this as an expression of the emancipation of countries in the Global South. They are increasingly standing up for the universal application of international law to all countries in the world. This includes their application to powerful countries. It shows other countries in the South that it makes sense to use legal procedures to hold the North accountable.”