The ongoing conflict engulfing Israel and Palestine continues to raise significant issues of international law and policy. My earlier contribution focused on the jurisdiction and substantive law of the International Criminal Court (ICC). Here I address the ongoing litigation before the International Court of Justice (ICJ or Court). Because the crime of genocide can be examined before both the ICC and the ICJ, and because both Courts are located in The Hague, they are often confused. But their mandates are quite different.
Contrasting the ICJ and the ICC
The International Court of Justice is the principal judicial organ of the United Nations. All States that are members of the United Nations are Parties to the Statute of the Court, meaning that unlike the ICC, the ICJ is truly universal in character. The ICJ is much older than the ICC, as it was established in 1946 as the successor to the Permanent Court of International Justice which in turn was established in 1922. The ICJ is housed in the Peace Palace, a splendid building funded by Andrew Carnegie, a Scottish-American philanthropist, that is still owned and maintained by the Carnegie Foundation in the Netherlands.
The Court can hear cases between States, known as contentious cases, and issue Advisory Opinions on the request of the U.N. General Assembly and other entities. Unlike the ICC, it does not punish individuals. The 15 judges of the Court serve 9-year renewable terms and are elected by the General Assembly and the Security Council. Although traditionally, a judge from each of the 5 Permanent Members of the Security Council has been seated on the Court at all times, that convention has at times been set aside, most recently in 2023 when the Russian Federation lost its seat to judge Bogdan-Lucian Aurescu of Romania. The judges of both the ICJ and the ICC are permitted to sit in cases involving their State of nationality or an accused that shares their nationality, respectively. Unlike the ICC, however, States not represented in the Court’s membership may choose a judge ad hoc to sit in a case involving their State.
ICJ judges are required to exercise their powers impartially and conscientiously under Article 20, and the Court’s judgments carry great weight. Proceedings are solemn and it is an honor for advocates to appear before the Court, and to sit as a judge. While some have criticized judges for voting along national lines, recent work suggests that there is little support for the proposition that the permanent judges do so with regularity, although the same cannot be said for the ad hoc judges which seem more likely to be swayed by national interests.
The ICJ is Asked to Intervene Regarding the Question of Palestine and in the Israel-Hamas Situation
At this moment, four cases relating to Israel and Palestine are pending before the International Court of Justice, two of which will be addressed in this post. The first is a contentious case brought by the Republic of South Africa against the State of Israel under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The second is a Request for an Advisory Opinion transmitted to the Court pursuant to General Assembly resolution 77/247 of December 30, 2022. Each is addressed in turn.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
Genocide is not a term to be used lightly, and South Africa’s invocation of it in the current context has drawn Israeli ire. Known as the “crime of crimes,” establishing genocide refers to the intentional destruction, in whole or in part, of a racial, religious, national, or ethnic group, involving the commission of the genocidal acts listed in Article II of the convention and the modalities found in Article III. Given the crime’s origin as a condemnation of the Holocaust, the accusation is indeed a heavy one when levied at a State created precisely to house a Jewish population fleeing Hitler’s genocidal regime after World War II. That said, the prohibition of genocide is universal, and no State is beyond reproach if the facts and the law make out a plausible case that genocide is occurring or about to occur, which is the standard that South Africa needed to meet in the initial phases of the case.
South Africa’s case focused on Israel’s response to the October 7th Hamas attacks. While a military response to the attack was expected, early in the conflict, Prime Minister Benjamin Netanyahu’s reference to “Amalek” raised concerns that the object of the military campaign would not be limited to Hamas but extend to all Palestinians in Gaza. Israel’s Defense minister Yoav Gallant stated that “we are fighting human animals” and announced a “complete siege” on Gaza with no electricity, no food, no fuel.” Major General Ghassan Alian repeated this language, adding “there will be no electricity and no water [in Gaza], there will only be destruction. You wanted hell, you will get hell.” In October and again in November, U.N. officials warned of the possibility of genocide occurring in the Gaza strip due to Israel’s aerial bombardment campaign, which had hit residential areas, schools, and hospitals, the forced displacement of the population, and the blocking of food, water, medicine, and other necessities of life from Gaza’s civilian population. Although a short pause in the fighting was achieved on November 24, 2023, following the release of additional hostages, fighting shortly resumed and by mid-December, it was reported that nearly 20,000 individuals had been killed, 53,000 had been injured, 1.9 million Gazans had been displaced, the number of functioning hospitals had dropped from 36 to 8, and hunger and starvation were intensifying.
On December 29, 2023, South Africa filed an 84-page Application with the ICJ alleging that Israel had “failed to prevent genocide and failed to prosecute the direct and public incitement to genocide,” and stated that “[m]ore gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” Application instituting proceedings and Request for the indication of provisional measures (South Africa v. Israel), at ¶ 4. South Africa requested an expedited hearing, given the urgency of the situation, and asked the Court to order provisional measures, including a cease fire. To make out its case, South Africa needed to establish jurisdiction and that a plausible risk of genocide was present. In a subsequent phase of the proceedings, South Africa will have to prove its claims on the merits.
Jurisdiction
While all UN Member States are parties to the ICJ Statute, States can only be brought before the Court by explicitly consenting to its jurisdiction either prior to the dispute occurring or after the fact. South Africa relied upon Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which provides that “[d]isputes…. relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” Because South Africa and Israel are both parties to the Genocide Convention, an action between them can be heard at the Court.
In addition, because Article I of the Genocide Convention requires States parties to prevent as well as to punish genocide, in 2007, the ICJ found in Bosnia and Herzegovina v. Serbia and Montenegro, that a State could be found responsible under international law for its failure to prevent a genocide. In the Court’s view, the obligation of prevention “requires States that are aware, or should normally have been aware, of the serious danger that acts of genocide would be committed, to employ all means reasonably available to them to prevent genocide, within the limits permitted by international law.”
In addition to Bosnia v. Serbia, the ICJ has found jurisdiction in other cases alleging genocide in particular the case brought by The Gambia against Myanmar in 2019, alleging the ethnic cleansing of the Rohingya group by the Myanmar military amounted to violations of the Genocide Convention, and the case brought by Ukraine against Russia in 2022, which, somewhat unusually, accused Russia of misusing the genocide convention by claiming that Ukraine had committed acts of genocide in the Luhansk and Donetsk oblasts of Ukraine, thereby justifying Russia’s unlawful military invasion of Ukraine in February 2022. In the Gambia v. Myanmar case, the ICJ dismissed Myanmar’s objections to The Gambia’s standing in the case, finding that all the States Parties to the Genocide Convention have a common interest in ensuring the “prevention, suppression and punishment of genocide.” The Gambia v. Myanmar (Preliminary Objections), ¶ 107. Thus, it did not need to demonstrate that any victims of an alleged breach of obligations erga omnes partes under the convention are its nationals, id. ¶ 109, and indeed, the Court was clear that any State party to the Genocide Convention may bring any other State party to the Court, with a view to determining any failure to comply with the terms of the treaty. South Africa relied upon this precedent in its case against Israel.
The Request for Provisional Measures
Under Article 41 of the ICJ Statute, the Court may indicate provisional measures to be taken to preserve the respective rights of either party. These measures, which are increasingly requested by States, are binding upon States under the Court’s judgment in the LaGrand case, where it found that they were essential to the Court’s basic functions and required by the terms of Article 41 itself. (LaGrand case (Germany v. United States), ¶¶ 98-109. Since that time, according to one study, the Court has issued 54 provisional measures in 15 cases, with about a 50 percent compliance rate. For purposes of this post, it is notable that States involved in armed conflict or perceiving the cost of compliance as excessive, have been least amenable to the Court’s orders, including Russia, which was ordered by the Court to suspend its military operations against Ukraine in 2022, and Myanmar, which was ordered in January 2023 to take all measures within its power to prevent the commission of genocide and not to commit, incite, conspire to commit, be complicit in committing, or attempt to commit the crime of genocide. As is well known, neither Russia nor Myanmar complied with these orders, although Myanmar has submitted reports to the Court as required by ¶ 86(4).
That said, even when immediate compliance is not forthcoming, it may be valuable to request provisional measures in a particular case, as South Africa clearly thought in the present situation. For one thing, the Court is very quick to convene hearings and issue provisional measures orders, compared to virtually any other international legal proceeding. For example, Ukraine applied to the Court on February 27, 2022; the Court’s order on provisional measures was issued on March 16, 2022, just a few weeks later. In a humanitarian crisis such as Gaza where war and famine are killing thousands of civilians, time is of the essence. Second, the hearings themselves may provide an opportunity to clarify the legal obligations of the parties, or may “outcast violators of international rules or to enable other institutions to enforce those rules.”
In ¶ 144 of its 84 page Application instituting proceedings, South Africa requested 9 separate provisional measures, including a request that Israel “immediately suspend its military operations in and against Gaza;” take all reasonable measures within their power to prevent genocide; desist from the commission of genocide; desist from forced expulsion and forced displacement, deprivation of adequate food, water, humanitarian assistance, medical supplies, and the “destruction of Palestinian life in Gaza;” prevent the destruction and ensure the protection of evidence relating to allegations of genocide and permit access by fact-finding missions, international mandates and other bodies to Gaza; submit a report to the Court on the measures taken within a week, and thereafter at regular intervals as ordered by the Court; and refrain from any action which might aggravate or extend the dispute before the court of make it more difficult to resolve.
South Africa’s case was the subject of immediate and extensive media and blog commentary, which continued as the date for the expedited hearings were set for January 11 & 12, 2024. South Africa’s team laid out its case for three hours on January 11th, powerfully arguing that genocide was being incited and committed in Gaza. While “unequivocally” condemning the targeting of civilians by Hamas and other Palestinian armed groups on October 7, as well as the taking of hostages, it argued that no armed attack – even one involving the commission of atrocity crimes, can provide a justification for or defense to breaches of the Genocide Convention. In its view, “Israel’s response to the 7 October 2023 attack has crossed this line.” Verbatim Record, ¶¶4-5.
Israel responded the following day, marking the first time Israel has appeared before the Court. Israel’s team argued that it was outrageous for South Africa to come to the Court and accused it of weaponizing the term “genocide” to support Hamas, a genocidal organization bent upon destroying Israel. In its view, the Convention “was not designed to address the brutal impact of intensive hostilities” on civilians but was “set apart to address a malevolent crime of the most exceptional severity.” Verbatim Record, ¶ 6. Israel argued that its right of self-defense was appropriate, and that it was Hamas that was at fault; that the casualty figures could not be trusted, id. at ¶ 41, and that the dire humanitarian situation is the fault of Hamas stealing and hoarding aid. id. at ¶ 42. Israel contested the Court’s jurisdiction, arguing that there was not a proper dispute between the parties, and pointed to cabinet statements to the effect that Israel was complying with international law in its conduct of the war as proof that it had neither genocidal intent nor was committing genocide. Id. at ¶ 25-26.
As expected, the Court took up South Africa’s request, issuing its order in record time on January 26, 2024. The Court, presided over by judge Joan Donoghue of the United States, ordered six measures. Four were adopted by a vote of 15-2, as follows. Israel was ordered to take all measures within its power to prevent the commission of all acts of genocide, in particular, killing or causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group. By the same vote, Israel was ordered to prevent its military from committing acts of genocide, to make a report to the Court on the measures taken to comply with the order by February 26; and to take “effective measures” to prevent the destruction and ensure the preservation of evidence relating to allegations of acts of genocide.
Israel’s ad hoc judge, Aaron Barak, voted against these four measures, as did Judge Sebutinde (Uganda). The latter argued that even if grave violations of international humanitarian law amounting to war crimes or crimes against humanity could have been committed, they did not constitute, without more, acts of genocide. Moreover, she expressed the view that the “controversy or dispute between the State of Israel and the people of Palestine is essentially and historically a political or territorial” conflict, that should be settled by political means, not judicial settlement. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures Order, Dissent of Judge Sebutinde, ¶¶ 3-4 (Jan. 26, 2024).
Two additional measures were ordered by the Court as well, by a vote of 16-1, with only Judge Sebutinde dissenting. First, that Israel shall take all measures within its power to prevent and punish direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza strip; and second, that it shall take “immediate and effective measures to enable the provision of urgently needed basic service and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza strip.” In addition, the Court emphasized the need for all parties to the conflict to respect international humanitarian law and expressed its grave concern about the fate of the hostages abducted by Hamas and other groups on October 7, and called for their “immediate and unconditional release.” Provisional Measures Order, supra, ¶ 85.
While some headlines trumpeted the Court’s order as denying South Africa’s request for a ceasefire, noting that in Ukraine’s application for provisional measures in 2022, the Court had clearly ordered the Russian Federation to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine,” South Africa received most of the measures it had requested. Certainly, as a practical matter, it would be hard to comply with the Court’s order to prevent genocide and not to commit or incite the commitment of genocide in Gaza without significantly scaling back Israel’s military operations. Moreover, a fair reading of the Order also requires Israel to scale up humanitarian assistance.
As others have noted, all sides could claim victory in the case, particularly the Palestinians and South Africa who were gratified by the Court’s finding that a plausible risk of genocide in Gaza was present. At the same time, Israel not only argued that the Court’s ruling does not prevent it from fully prosecuting the war to defend itself, it has stepped up military operations, including threatening an invasion of Rafah, where 1.4 million Palestinians are sheltering, having left northern Gaza at Israel’s demand, to escape fighting there. This led South Africa to return to the Court on February 12, 2024 to request additional measures as a matter of urgency to order additional measures without a hearing under Article 75(1) of the Rules of Court. On February 16, 2024, the Court responded that the “perilous situation” in Gaza, and Rafah in particular, demands “immediate and effective implementation of the provisional measures indicated by the Court” as opposed to new measures.
On March 6, 2024, South Africa again returned to the Court, noting the situation of widespread starvation in Gaza, and asked the Court to indicate further measures to ensure the safety of 2.3 million Palestinians in Gaza, including over a million children. This time, in addition to requesting additional measures to be taken by Israel, South Africa requested the Court to order that all participants in the conflict cease fighting and all hostages and detainees be immediately released. While this suggests that the Court’s order could be directed at Hamas, and some have suggested this as a possibility, it is difficult to see how this could be properly implemented given that neither Hamas nor other armed groups responsible for the attacks of October 7 represent a State, and therefore have no standing before the Court.
Next stages in the Litigation
The Provisional Measures Order of January 26th did not adjudicate whether or not Israel had either committed or failed to prevent the crime of genocide on the merits. That determination will be made in a subsequent phase of the proceedings, and the bar for any such determination will be very high, based upon the Court’s earlier jurisprudence, particularly Bosnia v. Serbia. Genocide is much easier to allege than to prove, as prosecutors and litigants have found on many occasions. Meanwhile, States may apply for permission to intervene in the case, as Nicaragua has already done, and challenges to admissibility and jurisdiction are likely to be forthcoming from Israel.
Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Requestion for Advisory Opinion)
In addition to its contentious jurisdiction, the ICJ can hear advisory opinions and does so regularly when requested, in particular, by the U.N. General Assembly under Article 96 of the UN Charter, and Article 65 of the Statute of the Court. On December 30, 2022, the General Assembly put two questions to the Court asking it specify:
- the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures; and
- how do the policies and practices of Israel [referred to in paragraph (a)] affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status.
The resolution was a response to the U.N. Independent International Commission of Inquiry’s report of October 27, 2022, finding that there were reasonable grounds to conclude that the occupation of Palestinian territory is now unlawful under international law owing to its permanence and de facto and de jure annexation. The General Assembly took up this recommendation, and in a contested vote, decided to refer the issues to the Court. Note that the decision of the Court will not be binding but may set out important principles of international law.
More than 50 States submitted written observations, including Israel, which disputed the appropriateness of the proceedings in its short submission, during the summer of 2023. The oral hearings were held beginning February 19, 2024, in the shadow of the ongoing conflict in Gaza and significant uptick in settler violence in the West Bank, and of course, the case brought by South Africa discussed above. Again, more than 50 States appeared (but not Israel), in the oral proceedings. Palestine was invited to begin, and spent three hours laying out its case not only in the advisory proceedings, but referencing the ongoing hardships resulting from the aftermath of the October 7th conflict. The Court will now deliberate and render a judgment.
Conclusion
As noted in my earlier post, even with some limited aid reaching the besieged territory in recent days, Gaza has become an “unbearable human tragedy.” Israel has not yet been willing to suspend its military operations to a significant extent, or deliver, via land crossings, sufficient aid, and it has attacked the UN organization tasked with providing assistance, UNRWA, accusing 13 (and subsequently 30) of its approximately 13,000 employees of assisting Hamas, and bombing its food aid centers. As of this writing, the claims regarding UNRWA have not been verified, but the United Nations is conducting an investigation.
In her iconic book“A Problem from Hell:”America and the Age of Genocide, Samantha Power wrote that although the United States had made “modest progress” in its responses to genocide, “such advances have been eclipsed by America’s toleration of unspeakable atrocities, often committed in clear view.” Id. at p. 503. As she notes, U.S. awareness of the Holocaust often seems to set the bar for concern so high that Americans are able to convince themselves that contemporary genocides are “not measuring up,” and concludes that the failure is one of political will, not lack of knowledge or incapacity. Id. From February 27 until March 1 Power visited Israel and the West Bank as the Administrator of USAID and spent time with humanitarian aid workers recently returned from working in Gaza. She described the conditions as “among the worst I have heard about in my career,” noting that Gazans are resorting to drinking sea water, eating weeds, and that too few aid trucks are being allowed entry.
Even in war, international law cannot be silent. The ICC has been slow, although the Prosecutor recently appointed a seasoned attorney to accelerate and head up the Palestine investigation. The ICJ was particularly quick to issue an important interim order. However, that order rests unimplemented in the face of U.S. unwillingness to restrain its use of the veto, which has paralyzed the UN Security Council. While the United States recently argued that a draft ceasefire resolution proposed on February 20th did not require Hamas to release the hostages, this claim is confusing given that operative paragraph 4 of said resolution required the “immediate and unconditional” release of all hostages. Indeed, releasing the October 7th hostages is of paramount importance, as the ICJ noted in its interim order, and could perhaps help bring the hostilities to an end. But the humanitarian need for a ceasefire is, at this point, indisputable. Until the Security Council is ready and willing to use its authority to enforce the precepts of international law, the situation in Gaza – including the well-being of the hostages taken on October 7th and the fate of millions on the verge of starvation – is unlikely to improve.
Professor Leila Nadya Sadat is the James Carr Professor of International Criminal Law at Washington University School of Law, and Former Special Adviser, International Criminal Court Prosecutor on Crimes Against Humanity (2013-2023).
