Maintenance

Israel accused of 'genocide' at ICJ: international justice 'likely to act'

François Dubuisson, professor of international law at the Free University of Brussels, analyses the issues at stake in the complaint filed by South Africa before the International Court of Justice (ICJ). The UN judicial body is holding hearings on Thursday 11 and Friday 12 January in The Hague (Netherlands), following a request from Pretoria on acts of "genocide" allegedly committed by Israel during its military operations in the Gaza Strip.

South Africa has petitioned the International Court of Justice (ICJ), the UN body that adjudicates disputes between states, to denounce what it considers to be the "genocidal" nature of the Israeli invasion of Gaza. © Mike Corder/AP

By: Nicolas Falez Follow

Advertising

Read More

RFI: The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. When has she ever addressed the Israeli-Palestinian conflict?

François Dubuisson: The ICJ settles disputes between states and can issue opinions when a legal question is asked of it. In the past, it had been consulted on the legality of the wall built by Israel in Palestinian territory. It had found that it was illegal. For several months now, it has been receiving a second request for an opinion on the nature of the Israeli occupation of Palestinian territory in a much more general way. The hearings are scheduled for February.

After the Hamas attacks on 7 October and the start of the war in Gaza, South Africa referred the matter to the ICJ, asking it to rule on possible acts of "genocide". Is this a first?

Yes, this is the first time that an inter-state proceeding has incriminated Israel before the ICJ. The procedure is based on the 1948 Genocide Convention. The pleadings will focus solely on this qualification: do the military operations carried out by Israel in the Gaza Strip, the difficulties in accessing humanitarian aid, the consequences for the Palestinian population fall within the qualification of "genocide"?

Read alsoSouth Africa accuses Israel of "acts of genocide" in Gaza before international court

How will this week's two-day hearings in The Hague unfold? And what's next?

At this stage of the proceedings, this is a request for provisional measures by South Africa. It is a kind of emergency summary in which South Africa asks the Court to enact measures binding on Israel to avoid any risk of irreparable harm. The court could announce them very quickly, asking Israel to refrain from a series of acts or asking it to allow more humanitarian aid to pass through to prevent potential genocide. It is not at this stage that the Court will rule on whether or not what Israel is doing amounts to genocide.

Will the next step be the examination of the merits?

Yes, the definitive analysis of Israel's actions is likely to take several years. A fairly long time, which is why there is an interest in precautionary measures, to try to have a grip on what is currently happening.

What are the means of making mandatory the measures that could be enacted by the ICJ?

They would be mandatory, but that does not mean that Israel would comply with them. But precautionary measures would be a lever for other states. Indeed, under the Genocide Convention, all States Parties have obligations to prevent genocide. So, if the Court says that a number of measures must be taken to prevent genocide, this may prompt states to increase their pressure on Israel.

In parallel with these proceedings before the International Court of Justice (ICJ), the International Criminal Court (ICC) has begun to look into the events of 7 October 2023 and those of the war that followed. What is the difference between these two procedures? And don't they run the risk of getting bogged down or failing, at the risk of further undermining the credibility of international justice?

The ICC has jurisdiction over individuals, unlike the ICJ. Since Israel is not a party to the International Criminal Court, it has no obligation to cooperate. And the ICC can only conduct trials when the defendants are present in The Hague. It cannot judge them in their absence. It is true that there is a question of credibility: the ICC has often been criticized for focusing mainly on conflicts in Africa and little on the responsibilities of Western states.

Nevertheless, we can see that two international courts (ICJ and ICC) are likely to be competent and act, even if it will take some time. They are likely to have a grip on the Israeli-Palestinian conflict, which is not so frequent.

See alsoInternational Justice: Inside the Fight Against Impunity

NewsletterGet all the latest international news straight to your inbox

Subscribe now

Follow all the international news by downloading the RFI app

Share:

Read on the same topics:

• Israel
• International Justice
• Our selection
• Gaza
• Palestinian Territories
• Israeli-Palestinian conflict