You’ve probably heard by now that South Africa has sued Israel. But do you want to understand more? I’ve got you covered (legal questions only)!
What is the International Court of Justice?
The International Court of Justice (the Court) is the main court in the UN system, based in The Hague. It was established to resolve conflicts between countries. For example, one country can sue another country for violating one or several rules of international law found in a contract signed between states, called a treaty.
So, South Africa is suing Israel before the Court?
Correct. It claims that Israel violated the Genocide Convention: a treaty signed by 153 countries, including South Africa and Israel, saying that genocide is a crime, and states must do everything they can to prohibit it. South Africa is arguing that Israel is violating the Genocide Convention, because it is committing acts of genocide in Gaza.
But why is this South Africa’s business?
All states which signed the Genocide Convention can technically sue each other before the Court (unless a country has exempted itself from being sued – yes, that is possible!) because they all have a shared interest to prevent genocide, no matter where in the world it might be happening. This is called public interest litigation.
Why haven’t Palestine’s neighbouring countries brought a case against Israel?
Only states that have signed the Genocide Convention can sue in this way. But political considerations likely explain countries’ choices.
Okay. So, this is a criminal trial, right?
No. Criminal trials are seen at the International Criminal Court (ICC) – a different court altogether (although it is also based in The Hague)! The ICC has a prosecutor who actively opens investigations and goes after individuals who have possibly committed big international crimes, like genocide. But a key difference is that the ICC goes after individuals and holds them responsible (There is an ongoing case about possible crimes committed in Palestine at the ICC right now, by the way!) The Court will hold governments (countries) responsible for committing genocide (which is what South Africa has initiated).
Why didn’t South Africa sue for war crimes or something else before the Court?
The Court isn’t automatically competent to address any violation of international law at any time. States must agree that it has the competence to deal with a particular matter. States that have signed the Genocide Convention all agreed in advance that if there is a future disagreement about it between any of them, the Court can resolve this. They have therefore agreed that the Court has competence in such cases. This is not the case for war crimes.
So, what happened at the hearing on 11 and 12 January 2024?
When South Africa sued Israel, it asked the Court to make temporary quick orders to resolve urgent matters before the Court can thoroughly review the case later on. This is called a provisional measures order. It’s typically done to avoid the situation getting worse and to preserve the proof needed for the case. Here, South Africa is mainly asking the Court to order Israel to suspend military operations in Gaza, because it is possibly committing genocide through these operations.
Okay. So, how can South Africa convince the Court to order provisional measures?
The Court will order provisional measures if five conditions are met: If it considers that (1) it has the competence to deal with the matter (at face value); (2) the matter is urgent; (3) there is a “risk of irreparable harm” if orders are not made. There also must be (4) a link between South Africa’s interest to protect Gazans from genocide and what it is asking for (mainly the suspension of military operations). But the more contested one is: (5) it must be plausible that genocide is happening.
Genocide is defined to occur when a country does things to an identifiable group of people (here, the Palestinians), like killing, causing serious bodily or mental harm or deliberately inflicting on the group conditions of life calculated to bring about their physical destruction – but it has to do this with the intention to destroy that group (partly or in whole).
Does Israel have the intention to destroy the Palestinians?
This needs to be proved. The Court has a test to prove if a State is intentionally carrying out genocide. It needs evidence showing a “pattern-of-conduct”, that is, consistent, repeated, recurring, systematic behaviour – as opposed to targeted isolated incidents. Also, the intention to destroy the Palestinians (partly or in whole) must be the only logical conclusion that can be made from examining the evidence – nothing else can be suggested by the evidence. So, the bar is quite high.
But actually, the Court does not have to determine that genocide actually exists at this stage of the case. It will at a later stage, which is called the “merits”. Right now, it must only assess genocide (including, of course, the intention to commit genocide) is plausible. So, the bar is lower to urgently order Israel to suspend military operations. South Africa brought a lot of evidence to show Israel’s intent, but Israel argued that it has no such intention and only wants to remove Hamas.
Makes sense. So, going back to the provisional measures order. If the five conditions are met, then the Court will order provisional measures?
Yes. If they are not met, then it will not give an order. But because the bar is lower to establish the fifth condition, there’s a good chance that all five conditions will be met. The Court has a record of ordering provisional measures for genocide cases in the past, which helps.
What can the Court order Israel to do?
South Africa has asked the Court to order nine things (!). Some key ones are for Israel to: suspend military operations (1), do what it can to prevent genocide (3) and stop depriving Palestinians of basic necessities to survive (5). The Court does not have to order all nine of them – it could order one, a few, or slightly different ones altogether.
When can we expect the order?
I predict in the next 3 weeks.
What if Israel ignores the order?
Countries have ignored provisional measures orders in the past. The Court can’t enforce its own order. The UN Security Council can enforce it if Israel ignores it – but the US can veto any such attempt.
So, what’s the point of the order if Israel ignores it?
Other countries can pressure Israel to respect the order – especially all states have a shared interest in preventing genocide. The order might also cause certain states to question their assistance to Israel, as they could be facilitating genocide. At the least, it’s an authoritative statement further isolating the US and Israel.
Can other countries join the proceedings?
Many countries have published statements supporting South Africa. But they can also intervene later on in the case. That is a formal and legal process which has recently been used to show political solidarity with the main countries in the case. For example, 32 countries recently intervened in an ongoing case between Ukraine and Russia, and 7 have intervened in another ongoing case between The Gambia and Myanmar. Both cases also relate to genocide.