Dr. KA Lok Yip
The old maxim that ‘in times of war, the law falls silent’ is no longer true. Not only is much of the discourse of Israel’s ongoing war on Gaza couched in terms of international law, concrete legal actions are being taken in an attempt to stop the war or seek accountability for certain conduct during the war.
On December 29, 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ). South Africa has alleged that Israel’s actions against the Palestinians in Gaza violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), to which both South Africa and Israel are parties. South Africa requests the ICJ to issue provisional measures that order Israel to immediately halt all military attacks that constitute or give rise to violations of the Genocide Convention. The ICJ has ordered a hearing on January 11 and 12, 2024, as to South Africa’s request for provisional measures.
Some may confuse South Africa’s case before the ICJ with the much sought after, but yet to be realized, prosecution of individuals for conduct during the war by the International Criminal Court (ICC). The two courts are different and thus the claims brought before them and any remedy emanating from them will be different.
The ICJ is the principal judicial organ of the United Nations. All States that have signed the UN Charter are parties to the Statute of the ICJ (the ICJ Statute). The 15 judges of the ICJ are elected by the UN General Assembly and Security Council. By contrast, the ICC is established by the much more recent Rome Statute of the International Criminal Court (the Rome Statute) and currently only has 123 State parties which include Palestine but not Israel. The 18 judges of the ICC are elected by the Assembly of State parties to the Rome Statute and only consist of nationals of State parties to the Rome Statute.
Under the ICJ Statute, the ICJ has jurisdiction in cases in which States have consented to have the ICJ resolve the dispute. Article IX of the Genocide Convention provides that a dispute between State parties to the treaty “relating to the interpretation, application or fulfillment” of the Genocide Convention shall be submitted to the ICJ at the request of any of the parties to the dispute. Accordingly, South Africa argues that Israel consented to have the ICJ hear any dispute with another party to the Genocide Convention. Under the Genocide Convention, each State party to the treaty has a duty to prevent genocide. South Africa articulates its dispute with Israel as the collision between South Africa’s own obligation to prevent genocide and Israel’s war on Gaza which according to UN experts gives rise to the risk of genocide. South Africa also justifies its standing to institute proceedings against Israel on the erga omnes nature of the obligation to prevent genocide, i.e. all States have an interest in the compliance with this obligation.
Under the Rome Statute, the ICC’s jurisdiction can be triggered by a State party’s referral, the Security Council’s referral or the Prosecutor’s own investigation. In case of jurisdiction triggered by State party’s referral or the Prosecutor’s own investigation, the ICC can only exercise its jurisdiction if the alleged crime is committed in the territory of a State party or the accused individual is a national of a State party. Accordingly, the ICC can potentially exercise jurisdiction over crimes committed within the territory of Palestine by nationals of Israel and over crimes committed within the territory of Israel by nationals of Palestine even though Israel is not a State party to the Rome Statute.
The ICJ only hears disputes between States and grants remedies to States such as the provisional measure requested by South Africa. By contrast, the ICC only tries individuals and issues sentences for those convicted.
Although the situation of Palestine has been the subject of the ICC Prosecutor’s preliminary investigation since 2015 and formal investigation since 2021, no indictment has been issued against any individual in relation to Palestine so it is yet to be seen whether and which crimes would be charged. Genocide is generally considered the most serious of international crime and more difficult to prove than war crimes and crimes against humanity, which have been the focus of the ICC Prosecutor’s investigation. Although the ICJ and ICC are different courts, a finding by the ICJ of genocide in Palestine will likely have an impact on the ICC Prosecutor’s assessment of whether and which crimes to charge individuals at the ICC in the future. Any State that considers it has a legal interest which may be affected by the ICJ’s decision can request to intervene in the proceedings.
The thoughts and views expressed are the author’s own and do not necessarily reflect an official University stance.
