Ahead of South Africa's Genocide Case Against Israel Hearing; Understanding Int'l Court of Justice

TEMPO.CO, Jakarta - South Africa has accused Israel of conducting genocide in the Gaza Strip in its application for provisional measures to the International Court of Justice (ICJ) on December 29, 2023. In its request, South Africa asked ICJ to adjudge and declare that Israel had breached its obligation under the Genocide Convention.

In its application, South Africa stated that "Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide”.

South Africa requested the ICJ to indicate provisional measures to protect Palestinian people against further harm to their rights under the Genocide Convention and to ensure Israel’s compliance with its convention obligations.

ICJ slated the genocide hearing for January 11 and 12 in Den Haag, Netherlands. The hearing will include an oral presentation by South African lawyers and Israeli ones without cross-examinations and witness statements.

How does the ICJ work?

ICJ has the authority to settle two kinds of cases; first, legal disputes between States submitted to it by them, and second, advisory opinions on legal matters referred to it by duly authorized United Nations organs and specialized agencies.

South Africa v. Israel in this case is a matter of legal disputes between countries. However, Indonesia's application to the ICJ in upcoming February is a request for an advisory opinion. Foreign Minister Retno Marsudi will represent Indonesia in an oral statement before the court concerning the status and legal consequences of Israel's occupation in Palestine.

The parties to a legal dispute before the ICJ are state members of the United Nations, state parties to the ICJ Statute, and countries that accepted ICJ jurisdiction.

Legal basis of South Africa's application

South Africa based its ICJ application on Article 36 (1) of the ICJ Statute and Article IX of the Genocide Convention. Both Israel and South Africa are parties to said convention.

Article 36 of the ICJ Statute stipulated the court's jurisdiction, while Article IX of the Genocide Convention provided that ICJ has the jurisdiction to examine legal disputes concerning the provisions under the convention.

South Africa's request to indicate provisional measures is based on Article 41 of the ICJ Statute and Articles 73,74 and 75 of the Rules of Court. Based on Article 74 of the ICJ Rules of Court, provisional measures "shall have priority over all other cases."

The judges on South Africa v. Israel genocide hearings

The ICJ is composed of fifteen independent judges elected to nine-year terms by the UN General Assembly and the UN Security Council. Elections are staggered, with five judges elected every three years to ensure continuity within the court. The ICJ is supposed to represent the "main forms of civilization and the principal legal systems of the world".

The current composition of the ICJ judges are three from African countries, two from Latin America, three from Asia, five from Western Europe and other Western countries, and two from Eastern Europe. Usually, ICJ will include one judge from each of the five permanent members of UNSC; United States, Russia, China, France, and the UK.

ICJ allows for ad hoc judges by any party to a contentious case without the representative country judge selecting one additional person to sit as a judge on that case only.

The current composition of judges for the South Africa v. Israel genocide case are United States, Russia, Slovakia, France, Morocco, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan, Germany, Australia, and Brazil. 

Meanwhile, South Africa appointed Dikgang Moseneke, former South African chief judge as an ad hoc judge, while Israel appointed its former supreme judge Aharon Barak.

Are ICJ decisions binding?

Judgments delivered by the court are binding, final, and without appeal. Considering the nature of international law, ICJ does not have the authority to execute its decision. However, if South Africa wins its case against Israel, it would set a legal precedence and destroy Israel's international reputation. 

State parties who believe parties to the dispute fail to conduct within their obligation based on the court decision may refer to the UN Security Council. The council is authorized to give recommendations for the parties to execute ICJ judgments.

ICJ.ORG | NABIILA AZZAHRA

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