The International Court of Justice (ICJ) will hear the petitions registered by South Africa against Israel’s war crimes, on 11 and 12 January.
The Public hearings to be held in The Hague will look into the complaints filed on 29 December 2023 concerning violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) concerning its ongoing genocidal war on Palestinians in the Gaza Strip.
It has been informed through a statement from the ICJ that the proceedings will take place from 10:00 to 13:00 CET and will be live-streamed on UN TV.
The major focus of the hearings will be the provisional measures (Art 41-1 of the ICJ Statute) which aim to prevent “further severe and irreparable harm” to the peaceful living and other basic rights of the Palestinian people under the Genocide Convention.
South Africa’s request to recognize Israel’s military activities in Gaza as“genocide” will also be considered.
Primary measures strongly pushed by the petitioners include Israel ceasing “its military operations” in and against Gaza and abstaining “from engaging in genocidal acts” as defined by Article II of the Genocide Convention.
The clauses of the convention seek to put an end to the killings as well as the “inflicting of serious mental and bodily harm” on the Palestinian people in Gaza. They also preclude any “intentional imposition of conditions of life designed to result in their physical destruction as a group”.
Additional measures forcing Israel to prevent and punish direct and public incitement to genocide are also invoked.
The South African legal team is led by Professor John Dugard, a renowned international Lawyer who also served as UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory.
The team comprises legal experts, scholars and lawyers, namely Adila Hassim, Tembeka Ngcukaitobi, Max du Plessis, Tshidiso Ramogale, Sarah Pudifin-Jones, and Lerato Zikalala, along with the British barrister Vaughan Lowe and Irish barrister Blinne Ni Ghralaigh.
British lawyer Malcolm Shaw and his team will appear for Israel. Their principal strategy would be to pressure the Court and discourage it from initiating proceedings.
The ICJ consists of 15 judges who are elected by the United Nations General Assembly and the Security Council with a tenure of nine-year terms.
Under the ICJ Statute (Article 31), if a state does not have a judge of its nationality already serving on the bench, it has the option to select an ad hoc judge specifically for their case.
South Africa named Justice Dikgang Moseneke, former Deputy Chief Justice of South Africa, as their ad hoc judge. Israel named Aharon Barak, former Chief Justice of the Israeli Supreme Court.
It was under Barak the Israeli Supreme Court refused to acknowledge the ICJ ruling in the advisory opinion which declared the apartheid wall constructed by Israel in the occupied West Bank as illegal.
What does the lawsuit demand?
Owing to the urgency of the matter, preliminary measures to prevent large human suffering and loss, forced starvation, destruction of neighbourhoods, mass displacement and other harms to Palestinian life as a whole, are expected to be adopted by the International Court in a short period.
Since the application drafted by South Africa provides a comprehensive overview of the genocidal acts committed by Israel, and the reality has been televised since the beginning in front of the world, the Court does not have to prove there is a breach of the Genocide Convention.
In addition, the invocation of the “right to self-defence” will not succeed as the specific intention to destroy a group is obvious, and hence any of such justifications will be deemed implausible.
As the petition clearly states referring to the UN regulations, “No State or individual can ever be permitted to justify genocide in the name of self-defence.”
Apart from the current chain of genocidal events happening since October, the application highlights the larger context of “Israel’s conduct towards Palestinians during its 75-year long apartheid, its 56-year-long belligerent occupation of Palestinian territory and 16-year long blockade of Gaza.”
According to different UN conventions, every State has an obligation to “take measures to prevent” and “punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators.” As a result, any country that aids or justifies Israel in its commission of genocidal acts may be held accountable by the court for complicity.
To date, the Organization of Islamic Cooperation (OIC, consisting of 57 Member States), Bolivia, Malaysia, Jordan, Turkey, Venezuela, Nicaragua, the Maldives, Pakistan and Namibia have announced their support to South Africa’s petition as signatories to the Genocide convention.
The Belgian Deputy Prime Minister has also hinted at their support of the case at the ICJ.
The case against Biden in the US Court
Notably, the ICJ hearings will take place just before a federal court in Oakland California in the US is set to table a case on 26 January 2024, in a litigation brought up by Human Rights organizations and Palestinian individuals against U.S. President Biden, Secretary of State Blinken and Secretary of Defense Austin.
The case titled “Defence for Children International – Palestine vs. Biden seeks to hold the US State Authorities accountable for their collaboration in Israel’s genocide.
The lawsuit endorsed by 77 legal and civil society organizations across the US, and a large number of renowned legal scholars and historians demands an emergency injunction to end U.S. diplomatic and military support to Israel.
Though the case in the US Court is not directly linked to the ICJ proceedings, the US government lawyers will have to abide by the directions issued by ICJ.
While the US continues to assert their undeterred diplomatic stance favouring Israel, The European Union is reluctant to speak on the matter.
Usually, the cases at ICJ get prolonged for long durations, and the demand of South Africa to sue Israel under charges of “genocide” might require a fight of years. At the same time, the petitioners and their supporters wishfully look forward to timely interventions from the Court to protect Palestinians from further brutalities of Israel.
The Court is expected to arrive at such urgent decisions by the end of January.
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