By Tareq Yousef AlShumaimry

The International Court of Justice (ICJ) is set to hold a two-day hearing tomorrow, 11 and 12 Jan, 2024 on the case brought by South Africa against Israel, for committing genocide in its ongoing war in the Gaza Strip, in violation of its obligation under the United Nations Genocide Convention.

On 3 January 2024, the International Court of Justice (ICJ) announced that it will hold public hearings at the Peace Palace in The Hague, the seat of the Court in The Netherlands, in the proceedings instituted by South Africa against Israel on 29 December 2023.

The Court recalled that South Africa filed an Application instituting proceedings against Israel concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) in relation to Palestinians in the Gaza Strip.

Tareq AlShumaimry (right) with the former president of International Court of Justice Judge Yousef

The Court added that the hearings will be devoted to the Request for the indication of provisional measures contained in South Africa’s Application. In its Request, South Africa asks the Court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

The ICJ, also called the World Court, is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the Court is at the Peace Palace in The Hague (Netherlands).

The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. The ICJ is not to be confused with the International Criminal Court (ICC), which is also in The Hague, but is a treaty-based institution concerned with war crime cases committed by individuals.

The UN Genocide Convention obliges all States that signed the Convention to not commit genocide and also to prevent and punish it. The treaty defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Although the case brought on by South Africa, involves the occupied Palestinian territories, Palestinians have no official role in the proceedings because they are not a United Nations member state.

During the arbitration process, the 15-judge panel at the ICJ is expanded by an additional judge from each side in the case. The Court, which usually adjudicates on border disputes, has increasingly handled cases brought by states accusing others of breaking UN treaty obligations. Both South Africa and Israel are signatories to the 1948 UN Genocide Convention, this gives the ICJ the jurisdiction to rule on disputes over this treaty.

The two-day ICJ session will be open to the public. Millions around the world will certainly follow it. Some lawyers and experts will represent South Africa, a country with first-hand experience of war crimes and apartheid. Hundreds of experts from other countries, such as Chile, Bolivia, Malaysia, Jordan and  Turkey will support it. Israel has chosen a British lawyer, Malcolm Shaw, to represent it. He is considered one of the world’s leading experts on international law, and teaches a course at the Hebrew University of Jerusalem as a guest lecturer every year.

In its 84-page case filing, South Africa says that by killing tens of thousands of Palestinians in Gaza, causing serious mental and bodily harm to them, and denying them access to essential food, water, medicine, fuel, shelter and other humanitarian assistance, as well as by conducting a sustained bombing campaign that has laid much of the Gaza Stripe to waste and forced the evacuation of over 1.9 million residents, Israel has been committing acts of genocide against the Palestinian people.

In response to the case filed against it at the ICJ, Israeli President Isaac Herzog said the ICJ case  was “atrocious and preposterous”. Israel, he said, makes utmost efforts to avoid civilian casualties in Gaza. He noted that the Israeli offensive was triggered by the 7 October 2023 cross-border Hamas attacks in which Islamist fighters killed 1,200 people and abducted 240, according to Israeli figures.

“We will be there at the International Court of Justice and will proudly present our case of using self-defense under our most inherent right under international humanitarian law,” Herzog said.

At the ICJ hearings scheduled for 11 and 12 January 2024, both South Africa and Israel will have two hours on the two separate days to make their case for or against emergency measures. There will be no witness testimony and there will be no opportunity for cross-examination. The presentation will be mostly legal arguments brought by state officials and their teams of international lawyers.

The interim emergency measures that South Africa requested in its petition is a first step in a case that will take several years to complete, as the Court will not make a final determination on the genocide allegations until a hearing of the case on the merits, which is probably years away. Formally called provisional measures, they are meant as a kind of restraining order to prevent a dispute from getting worse while the court looks at the full case.

This week’s hearings are only about possibly granting emergency measures. For provisional measures the court only has to decide if at first glance, or prima facie, it would have jurisdiction and the acts complained of could fall within the scope of the genocide treaty. Judges at the ICJ often grant such measures, which generally consist of asking a state to refrain from any action that could aggravate the legal dispute.

Regardless of the progress of the procedures and the position that the court will take at a later stage, experts confirm that South Africa’s move faces challenges that may prevent it from achieving its goals, most notably the absence of an actual mechanism for the implementation of sentences, as well as the adoption of positions in support of Israel by major countries, led by the United States.

During the hearings on 11 and 12 January 2024, South Africa will present its oral argument on the first day from 10am to 1pm, while Israel will present its oral argument on Friday, 12 January from 10am to 1pm. A decision on the provisional measures is expected in the weeks following the hearings. While the ICJ’s rulings are final and without appeal, it has no way of enforcing them. A ruling against Israel could hurt the country’s international reputation and set legal precedent.

The case, filed by South Africa, sets a precedent as the first at the ICJ relating to the siege on the Gaza Strip, where more than 23,000 people have been killed since October 7, nearly 10,000 of them children.

The ICJ will play out as a case where Israel, for the first time, stands as a defendant before the world’s most important court. The outcome of this case could set a precedent, opening the way for multiple cases in the future, both individually and collectively, for Israel’s victims. More importantly, a ruling in favor of South Africa will force the ICC to step in and look into what Israeli soldiers, officers, and politicians have done, or even said, to instigate what much of the rest of the world already defines as genocide.

Tareq Yousef AlShumaimry, served as Chairman of the Finance Committee and Chairman of the General Budget Committee of the Permanent Court of Arbitration in The Hague (PCA) and an observer in the 124th Administrative Council of the Court and the Consular at the Embassy of the State of Kuwait in the Netherlands during this period from 2013 to 2020

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