The International Court of Justice at the Hague ruled on Jan. 26 that Israel must prevent genocidal acts by its forces. In a case brought to the ICJ by South Africa, where South Africa sued Israel to stop military action in Gaza pending an investigation concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
The ICJ is the principal judicial organ of the United Nations. It rules over states, not crimes committed by individuals, which is the International Criminal Court’s jurisdiction. This means the ICJ cannot rule over individual crimes committed by members of Hamas on October 7, 2023.
While the Court did not order Israel to stop military action in Gaza, it did find it has jurisdiction on the matter and decided there was a plausible case under the 1948 Genocide Convention, and that the Palestinian population in Gaza was at real risk of irreparable damage. The ICJ also ordered Israel to enable the provision of humanitarian assistance and basic services to Gaza.
South Africa viewed this ruling as a “milestone in search for justice for the Palestinian people.” The African country filed the Application instituting proceedings on December 29, 2023. The ICJ ruling confirming its jurisdiction has enormous weight for the case, legitimizing the South African Application.
While orders issued by the ICJ are legally binding, the Court does not have an enforcement apparatus. Israel is not expected to commit itself to these orders. The reputation of Israel in the international community, however, can be significantly damaged as well as its credibility and ethos in the conflict in Gaza.
Other states, party to the Genocide Convention can intervene to join the case in support of either side. In Ukraine v Russia, 32 states are intervening on behalf of Ukraine. On January 11, Germany said it would seek to intervene on Israel’s behalf.
To prove genocide, the claimant needs to show or infer a genocidal intent making genocide notoriously difficult to prove. Allegations that Israel violated international humanitarian law cannot be brought before the ICJ, since no treaty confers jurisdiction to the Court. Criminal courts, such as the ICC will investigate war crimes.
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