The war in Gaza has now reached the International Court of Justice (ICJ). In the closing days of 2023, South Africa filed an application instituting proceedings against Israel before the ICJ. South Africa alleges that Israel’s conduct in Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide both by committing genocide against Palestinians in Gaza, and by failing to prevent it, including by failing to hold senior Israeli officials and others accountable for their direct and public incitement to genocide. The application concludes by requesting a series of “provisional measures,” including that Israel immediately suspend its military operations in Gaza.
The application has set off a firestorm. The accusation of genocide is particularly gut-wrenching for many Israelis. After all, the Holocaust, in which six million Jews were killed, was the impetus for the very treaty that Israel is now accused of violating. Israeli government spokesman Eylon Levy furiously stated, “The State of Israel will appear before the International Court of Justice at The Hague to dispel South Africa’s absurd blood libel,” equating the application with antisemitic slander against Jews.
Here we take a step back to examine the legal claims made by South Africa in its application, the basis for South Africa’s claim for standing to bring the case, what to expect as the case unfolds, and the possible broader legal effects of the case, including for the United States and other allies of Israel. Whatever one thinks of the merits of South Africa’s claims, the case demonstrates that the new form of standing recognized by the Court—“erga omnes partes standing” (standing based on obligations “in relation to everyone,” or owed to all), which we have discussed at length in a forthcoming law review article—has the potential to revolutionize the enforcement of long under-enforced human rights treaties. But this new frontier brings risk to the Court as well.
Proceedings Instituted by South Africa Against Israel
In the Gaza war, international legal attention has been more focused on possible Israeli violations of international humanitarian law (IHL) than on possible violations of the Genocide Convention. The reason that the IHL claims are not at issue in this case is simple: The ICJ does not have jurisdiction over them. The International Criminal Court likely does, however, and its prosecutor has already begun an investigation of the situation in Gaza.
The Genocide Convention, by contrast, does squarely provide for ICJ jurisdiction. To establish jurisdiction, South Africa has to demonstrate that its dispute with Israel relates to the interpretation, application, or fulfilment of the Genocide Convention. To that end, South Africa argues that the dispute concerns both South Africa’s own obligations as a State party to the Genocide Convention to undertake to prevent genocide, as well as Israel’s compliance with its obligations under the Convention.
Much of the application is devoted to laying out South Africa’s case that Israel is violating its obligations under the Convention. Genocide as defined by the Convention entails acts—including “killing members of the group”—“committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”
South Africa’s application argues that the damage inflicted by Israel’s military campaign against Gaza since Oct. 7 constitute genocidal acts. It states that Israel has “killed in excess of 21,110 named Palestinians, including over 7.729 children – with over 7,780 others missing, presumed dead under the rubble—and has injured over 55,243 other Palestinians” and that “Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes.” The application unambiguously condemns Hamas’s targeting of civilians and hostage-taking on October 7 but argues that “no armed attack on a State’s territory no matter how serious—even an attack involving atrocity crimes—can . . . provide any possible justification for, or defence to, breaches” of the Genocide Convention. While the application focuses primarily on Israel’s conduct since Oct. 7, 2023, it discusses the “broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.”
Establishing genocidal intent is extraordinarily challenging, as it requires proof of a specific intent to destroy a group in whole or in part. South Africa claims that Israel’s actions against Palestinians “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” specifically the Palestinians living in the Gaza Strip. This conduct it references includes “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.” As evidence of genocidal intent, South Africa points to both repeated statements made by Israeli State representatives, including the Prime Minister and President, and the conduct of Israel’s military operation in Gaza, including what it says is their “failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people” and its sustained bombardment that has forced “the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herd[ed] them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed.”
In addition to arguing that Israel is committing genocide, the application argues that the statements by Israeli officials and others constitute incitement to genocide. South Africa argues that Israel has violated the Genocide Convention by failing to suppress “direct and public incitement to commit genocide.”
Stressing the urgency of the situation in Gaza, South Africa requests an expedited hearing to seek provisional measures—temporary remedies granted under special circumstances while court proceedings continue to the next stage —to protect the Palestinian people. Specifically, it requests that Israel suspend immediately its military operations in and against Gaza; ensure that individuals under its control do not engage in direct and public incitement to commit genocide, and hold them accountable as required by the Convention if they do; “take all measures within its power including rescinding of relevant orders … to prevent … the deprivation of access to adequate food and water;” preserve evidence; submit reports on the measures taken to abide by the provisional measures ordered; and refrain from taking actions which might aggravate or extend the dispute before the Court.
Israel has not yet responded to the application, but it has previously claimed that it has conducted its military operations in accordance with international law and that some of the crimes carried out by Hamas on October 7 might themselves constitute genocide, including “the slaughter of over 1,400 Israelis and foreign citizens [a number later revised to closer to 1200] the wounding of over 5,500, widespread acts of torture and maiming, burning alive, beheading, rape and sexual violence, mutilation of corpses, the abduction of at least 247 hostages (including infants, entire families, persons with disabilities, and Holocaust survivors), the indiscriminate firing of thousands of rockets, and the use of Palestinian civilians as human shields.”
Why Does South Africa Have Standing to Bring the Case?
South Africa, over 4,000 miles away from Gaza, is not directly affected by Israel’s attacks against Gaza—and it does not claim to be. So, one might reasonably ask, how does it have a legal basis to bring this case?
Following The Gambia’s example in its proceedings against Myanmar for violating the Genocide Convention, South Africa bases its standing on the erga omnes partes doctrine. This doctrine allows a State party to a treaty protecting common legal rights to enforce those rights even if the State is not directly affected by the violation. In its application, South Africa emphasizes the jus cogens nature of the prohibition against genocide as well as the erga omnes and erga omnes partes character of the obligations owed by States under the Genocide Convention. Given all States parties to the Genocide Convention have “a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity,” the provisions at issue generate erga omnes partes obligations, “in the sense that each State party has an interest in compliance with them in any given case.”
The erga omnes partes standing doctrine was revolutionized by The Gambia’s case against Myanmar. In 2019, The Gambia filed an application before the ICJ against Myanmar, alleging its conduct violated the Genocide Convention and requesting provisional measures from the Court. By allowing the case to proceed, the Court accepted, for the first time, erga omnes partes standing as the sole basis of a State’s ability to bring an application. Most recently, the Court accepted The Netherlands and Canada’s joint application against Syria for its alleged violations of the Convention Against Torture on the basis of erga omnes partes standing (which we wrote about for Just Security)—and in November 2023, the Court ordered provisional measures requiring Syria to take all measures to prevent acts of torture and to ensure the preservation of evidence.
In addition to asserting erga omnes partes standing, South Africa also emphasizes that this dispute concerns “its own obligations as a State party to the Genocide Convention to act to prevent genocide—to which Israel’s acts and omissions give rise,” and it therefore “plainly has standing.” Indeed, in describing its obligation as a State party to prevent genocide, South Africa emphasizes that several States and U.N. experts have noted the risk of genocide against Palestinian people, including the Committee on the Elimination of Racial Discrimination calling on “all State parties” to the Genocide Convention to respect their obligation to prevent genocide.
Because the Court has already accepted erga omnes partes standing for disputes arising from the Genocide Convention and given that South Africa’s claims concern core provisions of the Convention, it is highly likely that the Court will find South Africa does, indeed, have standing to institute these proceedings.
What to Expect Next
On Jan. 3, less than a week after South Africa submitted its application, the Court announced that it will hold public hearings on the request for provisional measures on Thursday and Friday of next week (January 11 and 12). The Court will then decide whether to impose provisional measures. That decision may take weeks or months. In The Gambia case, for example, the Court’s decision on provisional measures came roughly 2 months after The Gambia filed its application (but only about 1 month after the public hearings); in the case by Canada and the Netherlands against Syria, the Court’s decision on provisional measures came over 5 months after the application (but just over 1 month after public hearings). In the case between Ukraine and Russia, the Court’s decision on provisional measures came just over 1 month after Ukraine filed an application and about 2 weeks after the public hearings.
In its decision on provisional measures, the Court will determine whether it has prima facia jurisdiction, including whether South Africa has based its application on treaty rights and obligations that are “plausible,” and whether there is a sufficient link between the measures requested by South Africa and the rights whose protection is sought. It will also consider whether there is a risk of irreparable harm and a situation of urgency, two criteria likely to be easily met in these circumstances.
It is important to note that at this initial stage, according to the Court’s jurisprudence (The Gambia v. Myanmar, para. 56), it is not necessary for the Court to make a finding as to whether Israel’s conduct in Gaza amounts to genocide. The Court may choose to impose some, but not all, of South Africa’s requested provisional measures. In making its decision, it will consider whether the rights and obligations claimed by South Africa on the merits, and for which it is seeking resolution, are plausible. It will not have to definitively determine that it has jurisdiction to hear the merits, nor will it need to go beyond a showing of “plausible” allegations as to violations of obligations under the Convention. It is possible that the Court could allow the case to proceed but ultimately decide against South Africa on either jurisdiction or the merits of the case.
If the case proceeds to the merits, the Court will hold public hearings on the dispute and deliver its final judgment on whether Israel’s acts amount to genocide. This final judgment will likely take years—in The Gambia v. Myanmar, the Court took roughly two and a half years following The Gambia’s first application requesting provisional measures just to deliver its judgment on preliminary objections, and the two prior Genocide Convention cases that have proceeded to a final judgment on the merits each took well over a decade to resolve (Croatia v. Serbia and Bosnia and Herzegovina v. Serbia and Montenegro).
Possible Ramifications of the Case
The case could have a number of ramifications. It has already brought more focus to claims that Israel’s military intervention is being conducted in violation of international law, and specifically claims involving the Genocide Convention.
South Africa’s application was not the first such assertion in a court of law. In mid-November, the Center for Constitutional Rights (CCR) filed a lawsuit in U.S. district court making similar arguments. Its complaint argues that Israel is committing genocide against the Palestinian people in Gaza in violation of the Genocide Convention. The case, filed not against Israel but against U.S. officials, argues that the United States’ failure to exercise its influence over Israel to prevent genocide constitutes a failure to prevent genocide as well as complicity in genocide. Among other things, it seeks a declaration that U.S. officials have violated their duty under customary international law to prevent Israel from committing genocide and injunctive relief ordering them to take all measures within their power to prevent Israel’s commission of genocidal acts.
South Africa’s case does not bear directly on this domestic lawsuit, which remains a longshot to say the least, but it could be seen to lend credence to the U.S. lawsuit’s underlying claims. Even if the CCR’s suit itself fails, the claims raise a series of difficult questions for the U.S. government. As a party to the Genocide Convention, the United States has an obligation to take affirmative action to prevent genocide. If the ICJ finds a prima facie case that it has jurisdiction to hear the case, that could force lawyers within the U.S. government to consider the legality of, for example, ongoing financial and military assistance to Israel.
U.S. law known as the Leahy Law prohibits military assistance to foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights. As Brian Finucane has written, U.S. financial and military support for Israel implicates a host of other domestic legal prohibitions (see also this explanatory piece in Just Security). These concerns are not new to the ongoing conflict. In October, State Department official Josh Paul resigned from the bureau that oversees arms transfers to foreign nations, citing specifically his objection to the administration’s military assistance to Israel. The case in the ICJ may lend weight to these longstanding concerns, whether the Court sides with Israel on the claims of incitement to genocide or the prevention of genocidal acts.
U.S. law also makes genocide, as well as incitement to genocide, a criminal offense. The law applies not only to U.S. nationals and residents but also to those “present in the United States.” It is unlikely, but not impossible, that the ICJ case, in giving credence to claims of genocide by Israel, could make it more difficult for Israeli officials involved in the war effort to travel to the United States, though control over any such decisions will rest in the hands of the U.S. Justice Department.
The United States is not the only state that will face these decisions as the case goes forward. Similar legal rules in other states are likely to be triggered by the allegations of genocide, especially if the case moves to the merits stage. A decision in Israel’s favor, however, could put an end to those concerns.
There are broader implications, as well, for human rights law and for the ICJ itself. If the ICJ does allow the case to proceed to the merits, it will further entrench erga omnes partes standing as an important new tool in enforcing international human rights law, making clear that its decisions in The Gambia and the Syria cases were no outliers. Whatever one may think about South Africa’s application, that could be an important step forward for human rights law enforcement, cementing an important new tool for ensuring greater compliance with treaty obligations that have long gone under-enforced.
There are dangers, too, as we detail in our forthcoming law review article on erga omnes partes standing. An increase in disputes on the basis of erga omnes partes standing could lead States to reduce their willingness to join or remain in treaties that that might give rise to such standing. The expansion of erga omnes partes standing could lead States to refuse to comply with the Court’s decisions and thus undermine the legitimacy of the Court. And the expansion of erga omnes partes standing could perpetuate inequities in the enforcement of international law if those suits are primarily brought by better resourced States against those less so (this is not an issue in the current case, but it could be in future cases).
Conclusion
The Court faces an important test. The emergence of erga omnes partes standing that made this case possible is an important new development in human rights law. But it is one that will increasingly place the Court in the middle of vexing legal and political disputes. That could pose dangers, not least to the Court itself. But it could also be advantageous—bringing highly charged debates over the legality of action into a legal framework where the arguments are tested before a Court that must then explain its legal reasoning to the world—rather than festering in public accusation and counter-accusation. That is, after all, the aspiration of a legitimate legal order.
Editor’s note: This article has been updated to elaborate the amount of time it may take to reach any final judgment in the case.
Photo credit: International Court of Justice via WikiCommons TxllxT
Source link : https://www.justsecurity.org/91000/the-promise-and-risk-of-south-africas-case-against-israel/
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Publish date : 2024-01-04 08:00:00
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