Examining the South African case against Israel before the International Court of Justice

March 1st, 2024
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Picture source: Getty/iStock

Recent legal developments at the ICJ

It is the argument of this article that it is critical to first examine the pertinent international law principles relating to the structure and jurisdiction of the International Court of Justice (ICJ), to contextualise two important recent international legal developments that occurred, in rapid succession, in relation to South Africa (SA), toward the end of 2023. One of the developments was the election of Professor Dire Tladi as the first South African judge of the ICJ. The second development relates to the statement issued by the ICJ about the proceedings instituted by SA against the State of Israel on 29 December 2023 (ICJ ‘The Republic of South Africa institutes proceedings against the State of Israel and requests the court to indicate provisional measures’ (www.icj-cij.org, accessed 8-2-2024)) concerning the alleged violations by Israel of its obligations under the Geneva Convention on the Prevention and Punishment of the Crime of Genocide (the Geneva Convention). The application (‘Application Instituting Proceedings’ (www.icj-cij.org, accessed 8-2-2024)) requests 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 [Geneva] Convention’ and ‘to [ensure] Israel’s compliance with its obligations [under the Geneva Convention] not to commit genocide and to prevent and punish genocide’ (Article 41 of the Statute of the ICJ and Articles 73, 74 and 75 of the ICJ Rules of Court). Israel contested the SA Application.

The developments alluded to above, have generated considerable scholarly and political interest. The public interest provides the impetus for this article to provoke heightened public perception of the international legal principles revolving basically around the two developments, to engender a more productive discourse. In this article, I do not purport to venture into the realm of the merits of this case, but rather, I shall confine my discourse within the limits of the relevant legal principles in international law.

The structure of the ICJ and SA
  • State parties

The ICJ, also known as the ‘World Court’, was established in June 1945 by the United Nations (UN) Charter as the principal judicial organ of the UN (Article 92 of the UN Charter). The ICJ Statue is essentially an integral part of the UN Charter to which it is an annexure. In terms of Article 93 of the UN Charter, all members of the UN are ipso facto (automatically) state parties to the ICJ Statute. South Africa is a state party to the ICJ Statute. Non-UN member states have the avenue of Article 93(2) of the UN Charter to become parties to the ICJ Statute. Under that avenue, such a state may become a party to the ICJ Statute on conditions to be determined by the UN General Assembly on the recommendation of the Security Council.

  • Judges of the ICJ

The ICJ is composed of a total of 15 judges who represent the ‘main forms of civilization and of the principle legal systems of the world’, no two of whom may belong to the same nationality (Article 3(1) of the ICJ Statute). To ensure a degree of continuity, one-third of the judges of the court is elected every three years and they are eligible for re-election (ICJ ‘Members of the court’ (www.icj-cij.org, accessed 8-2-2024)). The judges are elected for a nine-year term, by the UN General Assembly, acting simultaneously but separately from the Security Council. Professor Dire Tladi, of SA, was one of the judges elected for a nine-year term, commencing February 2024 (UN ‘General Assembly Elects Five Judges to International Court of Justice’ (https://press.un.org, accessed 8-2-2024)). ‘Judges of the nationality of each of the parties shall retain their right to sit in the case before the court’ (Article 31 of the ICJ Statute). However, Judge Tladi was not part of the ICJ bench in the South Africa-Israel matter before the court on 11-12 January 2024, as he was only sworn in as judge on 6 February 2024. In the meantime, retired South African Deputy Chief Justice Dikgang Moseneke was appointed an ad hoc judge to constitute part of the ICJ bench on this matter for the hearings before the tenure of Judge Tladi commences.

The competence and jurisdiction of the ICJ and SA
  • The law applied by the ICJ

Why was the ICJ established? The ICJ was established to perform the function of deciding, in accordance with international law, such disputes as are referred to it, and in so doing, it shall apply:

‘(a) international conventions … establishing rules expressly recognised by the contesting states;

(b) international custom, as evidence of … ; and

(c) the general principles of law recognised by civilized nations.’

The court may, in its decision-making process, also refer to subsidiary means, namely: ‘the teachings of the most highly qualified publicists of the various nations’; and previous judicial decisions of the court. The application of these subsidiaries are subject to Article 59 of the ICJ Statute. This Article provides that ‘the decision of the court has no binding force except between the parties and in respect of that particular case’. Put another way, in general, the decision of the court in the South Africa-Israel case will have no binding effect on non-parties to this matter.

If the parties agree, the court also has the power to decide a case ex aequo et bono, meaning deciding a dispute in accordance with a sense of fairness and good conscience or equity (Article 38(2) of the ICJ Statute).

  • Jurisdiction of the court

The jurisdiction of the ICJ is both contentious and advisory. It comprises all cases, which the parties may refer to it and all matters specifically stipulated in existing conventions and treaties, as well as those provided for in the UN Charter. Only states may be parties in a case before the court (Article 34(1) of the ICJ Statute). Such states may at any time make a declaration recognising, as compulsory ipso facto, the jurisdiction of the court, in relation to any other state accepting same legal obligation, in all legal disputes contemplated under the ICJ Statute. Those disputes may concern –

  • the interpretation of a treaty;
  • any question of international law;
  • matters relating to breach of an international obligation; and
  • the nature or extent of the reparation in respect of determined breach of an international obligation (Article 36 of the ICJ Statute).
  • Advisory jurisdiction

Advisory jurisdiction entails the court giving advisory opinions on any legal question referred to it by a competent body, which could be the UN General Assembly and the Security Council. Other UN organs or specialised agencies, if authorised by the General Assembly or the UN Charter, may also request for the advisory opinion of the court, on legal questions arising from the scope of the activities such organs or agencies (Article 65(1) of the ICJ Statute and Article 96 of the UN Charter). The request to the court for the advisory opinion must be in writing. The court has so far rendered advisory opinions on a number of matters, for instance, in Western Sahara, Advisory Opinion ICJ Reports 1975 p12 and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ICJ Reports 1971 p16, the ICJ affirmed the right of self-determination of the people of Namibia and Western Sahara.

  • Contentious jurisdiction

Contentious or adjudicatory jurisdiction arises because the court has a responsibility to determine disputes or issues in accordance with international law. Contentious legal disputes are submitted to the court by states, based on voluntary participation. In the exercise of its mandate, the ICJ invariably deals also with matters of violations of human rights globally under its contentious jurisdiction by rendering its interpretation of the relevant international convention. For instance, in the case of Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment ICJ Reports 2002 p3, the ICJ held that Belgium had violated international law by issuing an indictment seeking the prosecution of an incumbent Minister for Foreign Affairs, Yerodia Ndombasi, under the Geneva Convention. In an almost similar respect, in Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, Order of 28 May 2009 ICJ Reports 2009 p139, where the court dealt with a matter concerning the interpretation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

State parties still have the option to entrust the resolution of their dispute to a relevant tribunal other than the ICJ (Article 95 of the UN Charter).

  • The binding nature of the decisions of the ICJ

All UN members have undertaken to comply with decisions of the ICJ involving such state parties by virtue of Article 94 of the UN Charter. However, it is critical to underscore that the decisions of the ICJ are not binding except as between the parties, and only for the matter between them (Article 59 of the ICJ Statute).

It should be noted that, in general, the judgment of the ICJ is final and there is no right of appeal. Where a dispute arises as to the exact scope or meaning of the judgment, the court shall, on request by any of the parties, provide an authoritative interpretation (Article 60 of the ICJ Statute). However, an application for revision of the judgment may be entertained on discovery of some fact of such a nature as to be a decisive factor, which at the time the judgment was rendered, was unknown to the aggrieved party and to the court (Article 61 of the ICJ Statute). What is the scenario if a state party to a determined dispute fails to perform the obligations incumbent on it under the judgment already rendered by the court? The aggrieved party may have recourse to the Security Council. In such cases, the Council may, if it deems necessary, resolve to take such measures to give effect to the judgment or it may make appropriate recommendations (Article 94 of the UN Charter).

The court order on SA’s request for indication of provisional measures

After hearing the oral arguments by SA and Israel during its sitting on 11-12 January 2024, the court rendered its order indicating provisional measures on 26 January 2024. It is critical to note that the proceedings and order for provisional measures are preliminary in nature and are independent of the substantive principal proceedings that ultimately inquire into the merits of the case before the court.

Issues for determination

At this preliminary stage, the court was seized with the matter, to determine, inter alia:

  • Prima facie jurisdiction

Whether or not SA, the applicant, had invoked provisions that would be prima facie capable of founding the jurisdiction of the court, was the question in this segment. In this regard, the court observed that the application by SA was premised on Article IX of the Geneva Convention, which permitted state parties to the Convention to submit to the court any ‘dispute relating to the interpretation, application or fulfilment of the Convention’. Reinforced by other points in the ratio decidendi set out in this portion of the order (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (www.icj-cij.org, accessed 8-2-2024)), the court concluded that it was clothed with prima facie jurisdiction to hear and determine the case before it (see paras 17, 26, 27, 28, 30 and 31).

  • Locus standi

The court, here, was concerned with whether SA has a legal interest to support its institution of the proceedings seeking relief against Israel. The court found that SA has prima facie legal standing to invoke the relevant provisions under the Geneva Convention in so far as they relate to Israel’s alleged breaches amounting to non-compliance with the Convention (see paras 33-34).

  • Plausibility of the rights under the Convention and link between rights

The question, here, was whether the rights (of the Palestinians) that SA sought to protect, by way of orders for provisional measures, are plausible. The significance of the word ‘plausible’ should be noted in this context, to denote appearing probable or reasonable. Considering evidence of inflammatory or inciting rhetoric by Israeli officials and the alleged atrocities against the Palestinian people in the Gaza, presented to it, the court vaguely found that ‘at least some’ of the rights claimed by SA are plausible. The court also confirmed the existence of a link between the measures sought by SA and the rights it sought to protect (see paras 37, 46-54, 59)

  • Risk of irreparable prejudice and urgency

The court was to determine whether, if prior to the final judgment in the substantive proceedings, a real and imminent risk existed that would result in irreparable prejudice being caused to the rights SA claimed. In this regard, the court concluded that there is both a risk of irreparable prejudice to the rights in question and urgency exists (see paras 60, 65, 67-72, 73).

  • Provisional measures indicated

In light of the preceding findings, the court concluded and rendered its order indicating the following measures, presented in abridged version in the context of this case. The State of Israel shall –

  • in relation to the Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention (Judges: 15 in favour, two against);
  • ensure with immediate effect that its military does not commit any acts described in the above point (judges: 15 in favour, two against);
  • shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to the Palestinian group in the Gaza Strip (Judges: 16 (including Israeli ad hoc Judge Barak) in favour, Judge Sebutinde against);
  • shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip (Judges: 16 in favour (including Israeli ad hoc Judge Barak), Judge Sebutinde against);
  • shall take effective measures to prevent the destruction and ensure the preservation of evidence relating to allegations of acts within the scope Article II and III of the Convention against members of the Palestinian group in the Gaza Strip (Judges: 15 in favour, two against); and
  • shall submit a report to the court on all measures taken to give effect to this order within one month as from the date of this order (Judges: 15 in favour, two against).
Dissenting opinion of Judge Sebutinde

What emerges distinctly from the delivery of the court’s order, is the almost solitary deafening dissenting opinion of the Judge Julia Sebutinde. She voted against all the measures in the order, even against two measures where the Israeli ad hoc Judge Barak voted in favour. Judge Sebutinde noted that this is not a legal dispute susceptible to judicial settlement by the court. She further observed, inter alia, that some of the preconditions for the indication of provisional measures have not been met, namely, that SA has not demonstrated, even on a prima facie basis, that acts allegedly committed by Israel were committed with the necessary genocidal intent. The judge was then led to conclude that the provisional measures indicated by the court in its order are not warranted. She cautioned that the reader should not assume that or conclude that, by indicating provisional measures, the court has already decided that the State of Israel has actually violated its obligations under the Genocide Convention. She stated that such a finding could only be made at a stage after an examination of the merits of the case. She warned further that no one should assume that the court has determined whether the rights that SA asserts, and for which it seeks protection pendente lite, actually exist. The judge concluded that she does not believe that provisional measures indicated by the court in its order are warranted and that the dispute between Israel and the people of Palestine is essentially and historically a political one, calling for diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned. She encouraged SA – which enjoyed and continues to enjoy a cordial relationship with the leadership of Hamas – to influence them to immediately and unconditionally release the remaining hostages, as a gesture of goodwill. In regard to the release of hostages, she said she was in tandem with the rest of the judges on the bench.

The Government of Uganda immediately announced that Judge Sebutinde does not represent the position of the people and Government of Uganda on the Palestinian issue. Arguably, although the judges are expected to be independent and elected regardless of their nationality (Article 2 of ICJ Statute), they are invariably nominated or supported by their respective countries or regions. Therefore, it is debatable whether politics cannot be entirely divorced from their positions at the court.

Conclusion

Proceeding on this premise, it is safe to conclude that: the South Africa-Israel application falls under the contentious jurisdiction of the court. In terms of the ICJ Statute, Judge Tladi is entitled, by virtue of his South African nationality, to sit on the ICJ bench that will ultimately determine the merits of the South Africa-Israel matter before the court. The order of the court is binding on the parties. The final decision of the court on merits is final and there is no right of appeal. Moreover, it may take an inordinate period before the matter can be finalised by the court. And even when judgment has been rendered, there are likely challenges in its enforcement. Even where the enforcement intervention of the Security Council is sought, the contesting interests of the Council permanent members would most likely lead to the exercise of veto power to protect the interests of one of the parties.

Dr Milton Owuor LLB LLM LLD (International Criminal Law) (UP) is a Senior Lecturer in international criminal law, international law, international human rights law, administrative justice, and constitutional law at STADIO School of Law. He is Chair of the Expert Professorial Discourse Panel of the Centre for International Criminal Justice Africa (ICR Justice Centre).

This article was first published in De Rebus in 2024 (March) DR 20.

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