By Prof. Gregory Rose, thinc. Senior fellow. Factsheet prepared for AIJAC on May 27th.
International Court of Justice – South Africa genocide case
What is the ICJ?
The ICJ is the principal court of the UN, established by the 1945 UN Charter, and all UN members (193) are parties to it. It decides disputes between UN members, but they can decide beforehand to what extent they wish to submit to its jurisdiction. It decides on their mutual obligations, like a civil court. The UN Security Council can take decisions to enforce ICJ judgements. It is located in The Hague.
Is Israel bound by the decisions of the ICJ?
Yes, but only to the extent that it has voluntarily consented to submit to ICJ jurisdiction. Israel has not consented to ICJ jurisdiction generally or for all disputes.
Israel consented to the jurisdiction of the ICJ under the dispute resolution clause in the 1948 Genocide Convention and is bound by consequent decisions of the ICJ under it. There is no avenue of appeal against poor ICJ decisions. However, the Israeli Government has indicated that it will not comply with an ICJ decision to permanently end its military operations to rescue the hostages and destroy the Hamas terrorist army and infrastructure in Gaza.
Did the ICJ order Israel to cease its military operations against Hamas?
No. In the January 26, 2024 ruling on South Africa’s request for interim measures against Israel under the Genocide Convention, the Court did not provide the order requested by South Africa for an ongoing permanent ceasefire.
Did the ICJ find it is plausible that Israel is committing genocide?
No. Nowhere in the Court’s judgement was there any mention even of a “plausible risk” of genocide, nor did it find any physical acts of genocide requiring cessation or punishment.
In fact, what the Court held was that South Africa had a “plausible right” to the interim measures. “The Court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court,” the then-presiding judge Joan Donoghue said to the BBC program HARDtalk on April 26. She explained quite clearly that she was “correcting what’s often said in the media”, and that in fact “[the Court] didn’t decide that the claim of genocide was plausible.”
What did the ICJ order Israel to do?
The Court ordered Israel to (1) prevent genocidal acts, (2) ensure that its military does not commit any such acts, (3) punish incitement to genocide, (4) provide humanitarian assistance, (5) preserve evidence of acts of genocide, and (6) report to the court within a month.
Why is the ICJ making additional interim decisions on what Israel can do?
South Africa has since January 26, 2024, made three further requests to the ICJ for additional interim measures. On February 12, it requested an order prohibiting an Israeli military operation in the Gaza city of Rafah, where Hamas has its main remaining military battalions. However, the Court decision issued in response on February 16 merely reaffirmed the earlier provisional orders.
On March 6, South Africa next requested a modification of the judicial orders to address emerging food insecurity and potential famine in Gaza. The Court did then issue additional orders on March 28 requiring Israel, inter alia, to “ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements.”
A third South African application, calling for full Israeli withdrawal from Gaza, was made on May 10. In response, the ICJ decided, on May 24, that Israel shall “Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
Is the Genocide case against Israel finalised in the ICJ?
No. In the last week of 2023, South Africa requested that urgent interim measures be imposed prior to a final decision being reached. The ICJ judgement on January 26 laid out only interim measures, a first procedural step. More procedural steps and a further decision on the Court’s jurisdiction and a final decision between the parties will take some years.
How was South Africa able to bring its dispute with Israel concerning Gaza to the ICJ?
All 153 parties to the Genocide Convention have rights to resolve their disputes under it. Nicaragua, Colombia and Libya could demand similar measures and have each filed motions to intervene in support of South Africa. Egypt has indicated that it will also intervene in support. Germany has indicated that it might intervene in support of Israel. The Genocide Convention is a treaty where all the parties can bring disputes on behalf of any other country.
Why did South Africa accuse Israel of genocide in the first place?
South Africa chose to use the Genocide Convention because Israel had consented under it to compulsory dispute resolution by the ICJ. There are no similar rights to compulsory ICJ dispute resolution under the laws that apply to the armed conflict between Israel and Hamas.
Remarkably, the ICJ ignored the laws of armed conflict, customarily the dominant law, or lex specialis, and, also disregarded the Genocide Convention’s inapplicability to armed conflict where there is no intent to commit genocide.
Is South Africa’s case an instance of lawfare?
Yes, South Africa’s litigation against Israel is a model case of international lawfare. Lawfare seeks to weaken an adversary, to achieve objectives similar to those of traditional warfare, in a grey zone of conflict below armed hostilities. It is effective to advance arms embargoes, trade boycotts and cultural isolation.
Lawfare also undermines laws by weaponising them for purposes other than their originally intended objectives. South Africa is subverting laws of genocide and of armed conflict in pursuit of its alliance with Hamas and Iran.
How are ICJ judges chosen?
Judges are selected to represent the five regions of the UN across the globe, nominated by their national government and approved by a regional caucus. Professionally, they are mostly national legal advisers from foreign affairs ministries, although some come from the judiciary or academia.
A country that has no judge on the bench in a case to which it is a party can appoint an ad hoc judge, implicitly recognising the political roles of judges. Israel has appointed Justice Aharon Barak in the case brought by South Africa. The degree to which judges are answerable to their home governments varies with their government and diplomatic status.
Are ICJ judges biased against Israel?
Some are not but most are, the same as in the UN generally. The current president of the ICJ, Nawaf Salam, was the Lebanese ambassador to the UN, where he was known for constant invective against Israel. As a judge, he is unsurprisingly acting with procedural and substantive prejudice against Israel. Egyptian and Jordanian judges in the ICJ were similarly pleased to execute judgements against Israel in 2004, despite bias strongly evidenced by their prior high-level roles in national politics and the Arab League. Although a principle of the rule of law is the right to be heard by an impartial judge, for which the disqualifying threshold is a reasonable apprehension of bias, this fundamental rule has no traction in the international justice system.
What is the difference between the ICJ and the ICC?
The ICJ can provide interim measures. It has no criminal jurisdiction and no jurisdiction over individuals. The ICJ is paid for as part of contributions to the UN by member states. It is in competition with other newer courts established under the UN system, and increasingly rarely finds legal reasons to decline cases, as it had previously.
The ICC has criminal jurisdiction over individuals but not jurisdiction over sovereign states. It is a UN satellite agency under a treaty binding on its parties. It is paid for by parties to its Rome Statute.
International Criminal Court – Indictment of Israeli Ministers
What is the ICC?
The ICC was established by the 1998 Rome Statute, which has been ratified by 124 parties, including Australia. The majority of members come from African, European and Latin American countries. Major non-parties include Asian and Middle Eastern countries such as China, Egypt, India, Indonesia, Israel, Korea, Lebanon, Malaysia, Myanmar, Morocco, Pakistan, Philippines, Russia, Saudi Arabia, Syria, Thailand, Turkey, Vietnam, UAE, Ukraine, the US and Yemen.
The Rome Statute covers four universal crimes: war crimes, crimes against humanity, genocide and aggression. The states parties agreed to cooperate to support ICC prosecutions. It has criminal jurisdiction over individuals but not jurisdiction over sovereign states.
The ICC has three levels of court: Pre-Trial Chamber, Trial Chamber and Appeals Chamber. It has a Chief Prosecutor appointed for a nine-year term. Institutional policy and funding decisions are made by its Assembly of States Parties, which comprises all parties to the Rome Statute. It is located in the Hague.
Who pays for the ICC?
The states parties contribute payments, in proportion to their national GDP, to support the ICC, with premises and additional support provided by the Netherlands. In the 20 years since it came into operation, it has cost over US$1 billion (currently about $200 million p.a.), employing about 800 staff, and can be regarded as an international law business growth area.
Does the ICC have jurisdiction in Israel or over Israelis?
No, the ICC has no jurisdiction over crimes committed within Israeli territory, as Israel is a non-party to the Rome Statute. Nor does the ICC have jurisdiction over sovereign states, only over individuals.
But, yes, the ICC has jurisdiction over Israeli individuals for offences committed within the territories of other states parties to the Rome Statute. It can enforce against those Israelis only when they come within the jurisdiction of a cooperating state party; for instance, Belgium could execute an ICC arrest warrant within Belgium for crimes committed in Palestinian territory against a visiting Israeli Minister of Defence.
Does the ICC have jurisdiction over non-state actors, such as Hamas?
Yes, the ICC has jurisdiction over individuals, irrespective of their nationalities, including citizens of non-party States. It can also prosecute individuals who are stateless, terrorists or members of insurgencies. It can exercise jurisdiction over them when they are within the territories of states parties who cooperate under the Rome Statute.
Is the Palestinian Authority a party to the Rome Statute?
Yes, the “State of Palestine” is considered as a non-member observer state by the UN General Assembly and, consequently, all UN organs and agencies. Thus, it was permitted to ratify the Rome Statute as a state party. The ICC Pre-Trial Chamber considers that the ICC has jurisdiction over the West Bank and Gaza as territories of the State of Palestine.
Can ICC jurisdiction override its member states, such as Canada and Australia?
Yes. ICC jurisdiction is complementary to national criminal jurisdiction of its member states, which means that it can override them if it considers that they are unable to prosecute or are failing to prosecute in good faith. For example, if Australia itself does not prosecute an Australian accused of having committed an ICC-listed crime in Ukraine, then, when that person comes to Frankfurt airport, Germany could arrest that person and hand them over to the ICC.
Similarly, the ICC can override internal prosecution processes of non-member states, such as India, by initiating an ICC prosecution, if it considers that the non-member cannot or will not prosecute.
How does the ICC enforce its decisions, warrants and orders? The Netherlands provides police and jail services to support the ICC. States parties are obliged to cooperate to assist in enforcement if the ICC has issued a warrant for an arrest. Although the ICC cannot enforce its jurisdiction over individuals located within territories of non-party States, it can obtain custody over them if they come through the territory of states parties. For example, Germany is a party that must execute an ICC arrest warrant against an American citizen located within Germany, even though the US is not a party.
Is Australia obliged to comply with ICC arrest warrants?
Yes, as a party to the Rome Statute, Australia is obliged to execute ICC arrest warrants against individuals found within Australian jurisdiction. A doubt as to the obligation to comply might arise if the ICC arrest warrant is considered by Australian authorities to be invalid.
How does the ICC choose who to investigate and prosecute?
There are three ways of initiating a case: (1) usually, a state party refers a case to the ICC if it is unable by itself to prosecute; (2) the UN Security Council can refer cases; and (3) the Chief Prosecutor can initiate a prosecution subject to the approval of the Pre-Trial Chamber.
Is the ICC administration of criminal justice politicised?
Yes, national and Security Council referrals of cases and choices of cases by the Chief Prosecutor are highly politicised processes. The Chief Prosecutor has discretion to decide whether there is a “reasonable basis to proceed”, taking into consideration the seriousness, interests of justice and likelihood of success, which also gives substantial scope for political considerations.
How are ICC judges and other officials chosen?
Judges are selected through the Assembly of States Parties to represent the five regions of the UN across the globe, nominated by their national government and approved by a regional caucus. The highest profile and key role in the ICC is the Prosecutor, which is a politically sensitive appointment.
The current chief prosecutor, Karim Khan, had as his mentor and godfather Sir Muhammad Zafarullah Khan, Pakistan’s first foreign minister, who viscerally opposed the Jewish State’s establishment and existence throughout his career, which included his presidency of the UN General Assembly. They corresponded every week and stayed together when the elder Khan was in the UK, and Karim Khan describes the elder Khan’s influence as pivotal in his life.
What other cases are being prosecuted by the ICC?
Since it came into operation, the ICC has convicted three offenders and acquitted four accused, all Africans, for armed actions in Africa. It has seven defendants in custody and has closed seven cases, all Africans. It has arraigned 51 defendants, almost all Africans.
Threats to withdraw from the Rome Statute by African states parties led to a broader range of investigations, including for crimes in Georgia, Palestine, Philippines, Myanmar and Venezuela, but none of these have yet gone to trial.
Does the ICC treat Israel equally?
No, the Rome Statute had built into it a redefinition of the war crime of forced transfer of civilian populations, specifically to criminalise voluntary civilian migration of Jews into the areas of Gaza, Jerusalem, Judea and Samaria (the West Bank). This was a precondition of participation by 56 member states of the Organisation for Islamic Cooperation (OIC).
In close liaison with Palestinian bodies, the ICC has examined Israel for this crime since 2014 and commenced prosecutorial investigation in 2020. There have been no examinations for any other civilian movements into disputed or occupied territory, such as Turkish North Cyprus, Moroccan Western Sahara, French New Caledonia or Chinese Tibet.
Does the ICC strictly follow the Rome Statute and principles of rule of law?
No. The Prosecutor’s May 21 request for arrest warrants against Israeli PM Binyamin Netanyahu and Defence Minister Yoav Gallant, alleging Israeli use of starvation as a weapon of war, disregards the Rome Statute’s complementarity principle by not allowing opportunity for internal Israeli prosecutorial investigations to take place instead of international processes.
Further, the Prosecutor’s charge alleging starvation as a weapon of war disregards aid flows from Israel into Gaza, Hamas attacks on border crossings, Hamas’ seizure of aid convoys and stealing of aid and Hamas’ destruction of Gaza infrastructure, particularly water pipelines and electricity transmission lines. Furthermore, it also invented a new rule requiring the direct provision of humanitarian aid to the enemy in armed conflict.
Moreover, the Prosecutor corrupts the basic rules of international humanitarian law by treating Hamas combatants embedded in civilian areas as Gazan civilians.
How can the ICC be deterred from perpetrating politicised abuses of its powers? The US – not an ICC member – has conflicted with the ICC over past threats to indict US service personnel for actions overseas, such as in Afghanistan. In 2002, the US Congress passed the the American Service-Members’ Protection Act, which authorises the US President to use “all means necessary” to “protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” In 2018, the US, under the Trump Administration, imposed sanctions upon the Chief and Deputy Prosecutors of the ICC. They were listed as Specially Designated Nationals (SDNs), whose assets are blocked by the US Treasury and who are prohibited from doing business with companies and people in the US. These sanctions were largely lifted once the Biden Administration took office in 2021.
Has the Chief Prosecutor threatened those who seek to deter the ICC?
Yes, the threat was directed against officials of foreign governments, principally the US, for pressuring the ICC to desist in its lawfare against Israel. On May 20, the Prosecutor said, “I insist that all attempts to impede, to intimidate or to improperly influence the officials of this court cease immediately. My office will not hesitate to act pursuant to the provisions of article 70 of the Rome Statute if such conduct continues and persists.”
Under Article 70, acts obstructing ICC administration of justice can be punished by up to 5 years’ imprisonment. The offences include “Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties.” The 2018 SDN designations would likely be treated as offences under Article 70, for which ICC arrest warrants against Donald Trump and US Treasury officials could still be issued.
Can countries withdraw from the Rome Statute?
Countries that are parties to the Rome Statute for the ICC can withdraw from the treaty upon giving 12 months’ written notice to the UN secretary-general. The African Unity block of members achieved a shift in ICC policy after they threatened to withdraw en masse.
Australia could similarly give written notice of its intention to withdraw, or threaten to do so if reforms are not made. The foreign minister who ratified the Rome Statute, Alexander Downer, retrospectively considers Australia’s ratification to have been a foreign policy error.
