I. Introduction
On December 23, 2023, South Africa filed an application to the International Court of Justice (“ICJ”) to institute proceedings against Israel.[1] The application alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) due to Israel’s ongoing military campaign in the Gaza Strip.[2] These allegations include claims that acts and omissions by Israeli officials are genocidal in nature as they are “committed with the requisite specific intent…to destroy Palestinians in Gaza as a part of a broader Palestinian national, racial and ethical group.”[3]
This blog will explore the ICJ’s history and purpose. It will analyze South Africa’s filing against Israel and discuss the ICJ’s assertion of Israel’s plausible genocide in Gaza as well as its implications.
A. The International Court of Justice
Following Germany’s invasion of Poland in 1939, the League of Nations, a collective of Allied powers founded in response to World War I, struggled to develop a judicial framework to address the shifting international political order at the time.[4] With a novel conflict facing the globe, China, the USSR, the United Kingdom, and the United States, issued a joint declaration addressing the urgent necessity of establishing a general international organization based on “the principle of the sovereign equality of all peace-loving states for the maintenance of international peace and security.”[5] Following these declarations, a new judicial body was created to replace the League of Nations and serve as the principal judicial organ of the United Nations.[6] The court became what is known today as the ICJ, the only permanent court of the United Nations.
The Court’s mission is to bring peaceful dispute resolution through adjudication between States in conflict.[7] The ICJ can hear two types of cases: contentious cases, which are legal disputes between States, and advisory proceedings, which are requests for advisory opinions on legal questions referred to it by United Nations organizations or agencies.[8] Membership in the United Nations requires compliance with any ruling made by the ICJ.[9] The ICJ has decided landmark cases including the Iranian/United States hostage crisis, the United States’ complicity in the Nicaraguan Contras, and more recently, the genocide in Myanmar and the war in Ukraine.[10]
It is important to note that the ICJ is a separate entity from the International Criminal Court (“ICC”), which is also based in The Hague in the Netherlands.[11] The ICC investigates and tries charges of individual violations of international law and order by state officials and judges have the authority to issue arrest warrants.[12] So far, the ICC has tried thirty-one cases and has issued forty arrest warrants.[13] ICC prosecutor Karim A.A. Khan KC has already announced that an investigation has started into Israeli violations in Gaza and settler violence in the West Bank.[14]
Although the ICJ is the highest court in the United Nations and its decisions are considered binding, there are no direct enforcement mechanisms.[15] Potential enforcement mechanisms range from financial sanctions and trade restrictions to emergency security force deployment. ICJ decisions are subject to enforcement by the United Nations Security Council, the enforcement arm of the United Nations.[16] However, these enforcement efforts can easily be vetoed and deliberation on taking action often takes years.[17] Due to the lack of enforcement, countries have defied ICJ orders with no foreseeable consequences.[18]
If the mission of the ICJ and the Genocide Convention is to prevent genocide both now and in the future, enforcement mechanisms must be established to stop acts of genocide in real time. When bad actors can ignore ICJ rulings and continue to violate the Genocide Convention, the ICJ is essentially a spectator shaking their head in disapproval. The highest court in the world, tasked with preventing crimes that “shock the conscience,” should be able to hold bad actors accountable before situations unravel further and more lives are placed in harm’s way.
Despite this lack of enforcement, these decisions still carry significant weight as they can influence geo-political decisions. States do not want to support bad actors that violate international law and rulings from the ICJ provide a formal public declaration of any violations.[19] This can provide a sound justification for States to desist support for violating parties, even influencing States to provide support for the victims of these violations in the form of humanitarian aid and international advocacy.
B. South Africa’s Case
South Africa requested the ICJ immediately require necessary provisional measures of Israel to protect against further harm to the rights of the Palestinian people under the Genocide Convention.[20] Under Article I of the Genocide Convention, genocide is defined as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group by:
- Killing members of the group
- 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
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group.[21]
South Africa provided evidence showing that Israel has violated each of these factors following the October 7, 2023 attack.[22] The application also included a significant amount of evidence pointing to violations that occurred before the attack.[23] At the time the application was drafted, more than sixty percent of Gaza’s housing stock had been damaged or destroyed, 1.9 million Palestinians (eighty-five percent of the population) had been displaced, and over 21,110 Palestinians were reported to have been killed, at least seventy percent of whom were women and children.[24]
The application also details the Palestinians suffering from starvation, dehydration, the destruction of hospitals, refugee camps, and infrastructure for aid distribution, and the rampant spread of disease caused by the ongoing Israeli siege.[25] The population density has become unsustainable as United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”) shelters, which are considered the safest locations to be, had an average of 486 people using a single toilet.[26]
The destruction of Gaza’s cultural and educational sites erased Gaza’s ancient history as ancient mosques, churches, schools, archives, and archeological sites fell victim to the Israeli shelling.[27] The application also details Israel’s use of evacuation orders, telling Palestinians in northern Gaza to flee their homes and travel to southern Gaza within twenty-four hours to avoid the violence.[28] As Gazan families fled to the south, Israel continued to shell areas that were designated as safe main traffic arteries.[29]
South Africa’s application also used direct statements from Israeli government officials to demonstrate expressions of genocidal intent against the Palestinian people.[30] Most notably, Benjamin Netanyahu, Israel’s Prime Minister, made a televised statement describing their military campaign as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle,” dehumanizing the Gazan populace.[31] The application also showed that soldiers on the ground were expressive of their genocidal intent as it presented a video showing Israeli soldiers chanting that “there are no uninvolved citizens” in Gaza and that they will “wipe off the seed of Amalek.”[32]
On January 26, 2024, the ICJ issued its order, requiring Israel to take provisional measures in accordance with the genocide convention.[33] These provisional measures equate to an emergency injunction, instructing a party to cease acts the ICJ views to violate the Genocide Convention.[34] The ICJ has issued provisional measures in the past, but without enforcement measures, they are often ignored.[35]
C. Israel’s Defense
Israel petitioned to have the ICJ dismiss the case based on a failure to demonstrate the prima facie jurisdiction of the Court under Article IX of the Genocide Convention.[36] Israeli and United States officials have publicly called South Africa’s claims “baseless” with no legal merit.[37] Prime Minister Netanyahu even went as far as to say South Africa is acting as the “legal arm of the Hamas terrorist organization.”[38]
This defense was ultimately rejected as the ICJ ruled that it was plausible that Israel committed acts of genocide in Gaza.[39] Per the ruling, Israel must take six provisional measures to improve the humanitarian situation for Palestinian civilians in the Gaza Strip.[40] These include (1) taking all measures within its powers to prevent genocide; (2) ensuring that its military does not commit genocide; (3) taking all measures within its power to prevent and punish incitement to genocide; (4) preserving all evidence relevant to potential violations of the genocide convention; (5) reporting back to the court with their progress in thirty days; and (6) enabling humanitarian aid. [41]
Israeli officials have already dismissed the ICJ’s ruling. They have continued their bombing campaign and continue to block humanitarian aid.[42] Israel’s National Security Minister Itamar Ben-Gvir reacted to the ruling by mockingly posting “Hauge Schmauge” to X.[43] There has been no indication they intend to abide by the ICJ ruling yet.
The same day Israel was ordered to make provisional measures, Israel alleged that twelve UNRWA employees were involved in the October 7th attack and that at least 190 employees were Hamas militants.[44] As a result of these allegations, the United States, Germany, the United Kingdom, and others suspended their funding to UNRWA, which is the largest humanitarian group providing aid to the 2.2 million residents of Gaza.[45] This puts millions of Palestinian lives at risk of starvation and lack of medical care and attention.[46] Even worse, there has been no public release of any evidence to support Israel’s claims and they have not been independently verified.
Conclusion
This ruling from the ICJ is historic and it is significant. Even though the ruling did not call for a ceasefire and Israel is refusing to comply with the provisional measures, it illustrates the facts as they are to the world. This information can influence trade partners and those providing aid to Israel to reconsider their involvement and complicity with potential violations of international law. For now, Israel’s reporting to the world’s highest court will surely be scrutinized as international public support for ending this humanitarian crisis continues to grow.[47] The ICJ ruling can make an impact and build more support as the world learns about what is truly happening on the ground.
While this may be a step in a positive direction, there are still grave concerns that require immediate intervention. The ongoing humanitarian crisis in Gaza is dire and urgent. The Palestinian death toll is rising rapidly and more than eighty percent of the population has been displaced with no home for them to return to.[48] Israel recently began a bombing campaign in Rafah, the most densely populated area in Gaza.[49] Rafah is where many families fled as Israel’s military moved them further and further south.[50] With Egypt refusing refugees and Israel’s military pushing in from the north, there is nowhere else to go. Even worse, Israeli officials have declared an intent to conduct a ground invasion of Rafah regardless of any potential ceasefire, which the UN warns would lead to a slaughter.[51]
Without immediate intervention, the human suffering in Gaza will continue to be unimaginable. The ICJ needs to demand a ceasefire and implement an immediate humanitarian corridor to provide aid to those suffering in Gaza. The effects of this bombardment will be seen and felt for decades. We cannot hesitate to end this atrocity and do anything we can to keep it from getting any worse.
[1] South Africa v. Israel, Application Instituting Proceedings and Request for the Indication of Provisional Measures, (Dec. 23. 2023)
[2] Id.
[3] Id. at 1-2.
[4] International Court of Justice, History, https://www.icj-cij.org/history.
[5] Protocol, Singed at Moscow, November 1, 1943, Declaration of Four Nations on General Security, Foreign Relations of the United States: Diplomatic Papers, General, Volume I (1943).
[6] United Nations, Charter of the United Nations, 1 UNTS XVI (Oct. 14, 1945).
[7] International Court of Justice, How the Court Works, https://www.icj-cij.org/how-the-court-works.
[8] Id.
[9] Id.
[10] United States of America v. Iran, United States Diplomatic and Consular Staff in Tehran, International Court of Justice. (May 12, 1981).; Nicaragua v. United States of America, Military and Paramilitary Activities in and against Nicaragua, International Court of Justice (November 26, 1984).; The Gambia v. Myanmar, Application of the Convention on the Prevention and Punishment of the Crime of Genocide. International Court of Justice (January 23, 2020).
[11] International Court of Justice, supra note 7.
[12] Id.
[13] Id.
[14] Press Release, International Criminal Court, Statement of ICC Prosecutor Karim A.A. Khan KC from Ramallah on the Situation in the State of Palestine and Israel. (December 6, 2023).
[15] United Nations, supra note 6, at Article 41. “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” (June 26, 1945).
[16] Id.
[17] RadioFree Europe, Kremlin, As Expected, Rejects ICJ Ruling to Halt Ukraine Invasion. March 17, 2022. https://www.rferl.org/a/russia-rejects-icj-war-ruling/31757644.html
[18] Id.
[19] Oona Hathaway & Scott J. Shapiro, Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252 (2011). (Disobedience need not be met with the law’s iron fist- enforcement may simply involve denying the disobedient the benefits of social cooperation and membership). at 258.
[20] Id. at 73.
[21] South Africa v. Israel, Application Instituting Proceedings and Request for the Indication of Provisional Measures. (December 23. 2023).
22 Id. (The October 7, 2023, attacks conducted by Hamas targeted 20 communities and a music festival in Israeli territory. Hamas abducted more than 230 people and killed more than 1,200 people in this attack.)
[23] Id. at 72-73. (providing a summary of notable events including: in 1948 known as the Nakba, that 95% of the drinking water from Gaza’s sole aquifer was already unsuitable for consumption before Oct. 7.)
[24] Id. at 31.
[25] Id. at 34-36.
[26] Id. at 46. (Describing that those sheltering in UNRWA sites are considered to be the “lucky ones” as these conditions are supposed to be better than surrounding areas.)
[27] Id. at 55.
[28] Id. at 37.
[29] Id. at 38.
[30] Id. at 59.
[31] Id.
[32] Id. at 65. (This is in reference to a biblical account of the nation of Amalek attacking Israelites that were leaving Egypt: “You shall remember what Amalek did to you…your God, gives to you as an inheritance to possess, that you shall obliterate the remembrance of Amalek from beneath the heavens.” Devarim (Deuteronomy) 25:17-19).
[33] South Africa v. Israel, Order Application Instituting Proceedings and Request for the Indication of Provisional Measures. January 26, 2024. at 10
[34] The Gambia v. Myanmar, Application of the Convention on the Prevention and Punishment of the Crime of Genocide. International Court of Justice (January 23, 2020).
[35] Human Rights Watch, “An Open Prison Without End”: Myanmar’s Mass Detention of Rohingya in Rakhine State. October 8, 2020. https://www.hrw.org/report/2020/10/08/open-prison-without-end/myanmars-mass-detention-rohingya-rakhine-state#7926
[36] Supra, note 33.
[37] Id. at 10
[38] Mohammed Salem, Nidal Al-Mughrabi, Anthony Deutsch, Netanyahu condemns ICJ Genocide Case; Gazans Return to Wasteland in North. REUTERS. January 11, 2024. https://www.reuters.com/world/middle-east/israel-face-gaza-genocide-charges-world-court-2024-01-11/.
[39] Supra, note 33.
[40] Id.
[41] Id. at 23.
[42] Office for the Coordination of Humanitarian Affairs, Briefing to the Security Council on the Situation in the Middle East, including the Palestinian Question. January 31, 2024. https://www.aplusforpeace.ch/sites/default/files/2024-01/240131-new-york-statement-MEPQ-cad.pdf.
[43] Itiamar Ben-Gvir (@itiamarbengvir), X/Twitter. (Jan. 26, 2024, 7:53 AM), https://twitter.com/itamarbengvir/status/1750864446807794046.
[44] Press Release, UNRWA, Serious Allegations Against UNRWA Staff in the Gaza Strip (Jan. 26, 2024), https://www.unrwa.org/newsroom/official-statements/serious-allegations-against-unrwa-staff-gaza-strip#. (noting that no evidence of these claims has been made public as of March 25, 2024).
[45] Ben Samuels and Reuters, U.S. Pauses UNRWA Funding Amid Claims 12 Workers Involved on Oct 7 Attack on Israel, Haaretz (Jan. 26, 2024), https://www.haaretz.com/middle-east-news/2024-01-26/ty-article/u-s-pauses-unrwa-funding-after-claims-12-workers-involved-in-oct-7-attack-on-israel/0000018d-463e-dc44-a5bf-cebe1b080000?v=1711985305357.
[46] Press Release, UNRWA, UNRWA’S Lifesaving Aid May End Due to Funding Suspension (Jan. 27, 2024), https://www.un.org/unispal/document/unrwas-lifesaving-aid-may-end-due-to-funding-suspension-27jan-2024/#:~:text=OVER%202%20MILLION%20PEOPLE%20IN,AS%20WAR%20AND%20DISPLACEMENT%20CONTINUE&text=AMMAN%20%2D%20“Nine%20countries%20have%20as,especially%20in%20the%20Gaza%20Strip.
[47] Lydia Saad, Democrats’ Sympathies in Middle East Shift to Palestine, GALLUP (Mar. 16, 2023), https://news.gallup.com/poll/472070/democrats-sympathies-middle-east-shift-palestinians.aspx.
[48] State of Palestine Ministry of Health, Daily Report on the Effects of the Israeli Aggression in Palestine. April 1, 2024. https://site.moh.ps/Content/File/JUIrdYZDvbdoFyFmHE72muun_MEOH7HZJu1BUFvrtp5A2tJk5.pdf. (Estimates more than 30,000 Palestinians have died so far [these numbers are likely underreported as some areas are not safe to reach and communication has been lost between major hospitals in Northern Gaza]).
[49] United Nations. World News in Brief: Rafah Escalation Fears, Gaza War’s Unprecedented Death Rate. Press Release. February 9, 2024. https://news.un.org/en/story/2024/02/1146412. (Rafah is in Southern Gaza, along the Gaza/Egypt border. Rafah’s population exploded from 250,000 to over 1 million. The population is so dense that normal routes are being blocked by tents as families are running out of flat, clean space.)
[50] Id.
[51] Michelle Nichols, UN Warns Israel: Rafah Invasion Could ‘Lead to Slaughter’, REUTERS. February 13, 2024. https://www.reuters.com/world/middle-east/un-warns-israel-rafah-invasion-could-lead-slaughter-2024-02-13/.
