From slaughtering children to indiscriminately targeting civilians, the acts of Israeli forces in Palestinian lands are a gross violation of International Humanitarian Law. Israel has unleashed unimaginable brutality on Gaza since October this year, although the history of occupation dates back to the last century. Since October, Israel has reportedly killed more than 24,000 Palestinians, of which more than half are women and children.
Typically, humanitarian law violation is tried under the International Criminal Court (ICC) jurisdiction. But Israel is not a member of the Rome Statute and does not recognize the authority of the International Criminal Court. So, South Africa applied with the International Court of Justice (ICJ), the principal judicial of the United Nations, on December 29, 2023, to initiate proceedings over charges of genocide against Israel. Both South Africa and Israel are supported by multiple international actors, with Bangladesh taking South Africa’s side.
The ICJ is the principal judicial organ of the United Nations, and its role is to settle legal disputes between states and give advisory opinions.
Unlike the ICC, the ICJ does not hold jurisdiction over individual perpetrators. However, it can hold states accountable for violation of their international obligation. Under this jurisdiction, South Africa applied to the court to make Israel accountable for its alleged violation of the Convention on the Prevention and Punishment of the Crime of Genocide, or the Genocide Convention. The obligation under this convention is of erga omnes nature. "Erga omnes" refers to obligations owed to all states. That’s why South Africa can bring up the matter even though it isn’t a direct victim.
Currently, there is an advisory opinion pending on the issue of legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem. For the first time, a genocide charge has been brought against the Israeli occupation before the ICJ, and the court indeed has the power to adjudicate against Israel if it is found in violation of its international obligations.
After that comes the political question. Even if the ICJ rules against Israel, what will be the consequence?
BBC reported on January 13, “South Africa wants the ICJ to order Israel to immediately suspend its military operations in and against Gaza. But it is virtually certain Israel would disregard such an order and could not be made to comply.”
Can Israel do that? Yes.
Rulings of ICJ are legally binding on parties to the ICJ, but are often ignored. In 2022, the ICJ ordered Russia to "immediately suspend military operations" in Ukraine, and Russia ignored the order. Israel expects the war to continue throughout 2024, the Israel Defense Forces (IDF) spokesman said in a new year message.
A judgement of ICJ is legally binding, but there is no automatic enforcement mechanism. In cases where a party does not comply voluntarily, the UN Security Council has the authority to take measures to ensure compliance. The politics inside the permanent members of the Security Council may as well freeze the enforcement of ICJ judgments. The Israeli allies among the permanent members of the Security Council may use the veto power and prevent an ICJ ruling from being enforced.
Yet, taking Israel before the ICJ is a significant move from the South African government. If the court issues a preliminary ruling for a ceasefire, it would indeed strengthen the voices raised for the same cause. And if Israel is conclusively found guilty of genocide in the final verdict, its standing in international politics will face a sharp blow. Its powerful allies like the US administration may face strong backlash in internal politics, and staunch supporters may have to lower their voices.
All of these are in the uncertain future. Right now, South Africa deserves our appraisal and support for taking the first step.
Kazi Rakib Hossain is a Research Associate of Legality - Barristers & Advocates and an LLM candidate at University of Dhaka.
