THE FIFTEEN JUDGES of the International Court of Justice have concluded the first phase of deliberations over South Africa’s case against Israel in The Hague, Netherlands. A decision on South Africa’s request that the Court issue emergency injunctions against Israel ahead of the actual trial is due to be published at midday today.
A Social Democrats motion that would have compelled the Government to officially support South Africa’s case was defeated in the Dáil earlier this week, as opposition parties continue to criticise the Government’s stance.
The preferred position of the Government has been to wait and see what the Court decides on provisional (emergency) measures before choosing to get involved directly, although Tánaiste Micheál Martin has said South Africa’s case is “valid”.
It’s been two weeks since the two countries’ legal teams made their opening arguments in preliminary hearings on 11 and 12 January, and almost a month since South Africa filed its 84-page application to the Court, in which it accused Israel of violating the Genocide Convention.
In its application, and in the words of its five legal representatives at the hearing, South Africa accused Israel of committing acts of genocide, failing to prevent genocide, and failing to prevent and punish incitement to genocide since the beginning of its siege, bombardment and ground invasion of Gaza following the Hamas-led attacks against Israel on 7 October.
South Africa also placed this latest, most destructive Israeli military campaign within the historical context of Palestinian dispossession, displacement and occupation in the years since the founding of the Israeli state in 1948, the same year the Genocide Convention was drafted.
The Israeli legal team responded to South Africa’s arguments by urging the Court to dismiss the case and the requests for provisional measures “out of hand”, calling the accusations “libellous” and arguing that Israel has done everything in its power to prevent the killing of civilians during its military campaign in Gaza.
“I think it is tragic and appalling that South Africa has decided to play advocate for the devil and serve as the legal arm of Hamas,” Israeli spokesperson Eylon Levy told the BBC on 11 January. The Israeli legal team made similar statements in court the following day.
Israeli Prime Minister Benjamin Netanyahu has promised to continue the military campaign in Gaza, regardless of what the ICJ might rule today.
“Nobody will stop us – not The Hague, not the axis of evil and not anybody else,” he said on 13 January.
Israel’s siege, bombardment and ground invasion has now killed more than 25,000 people in the Gaza Strip since 8 October.
How does the Court make decisions?
Since preliminary hearings ended two weeks ago, the Court’s judges have been poring over the evidence and arguments put forth by both sides while composing a draft of its rulings.
“The court goes through a fairly rigorous process of meeting together in plenary to revise that text until there is majority agreement on a final text,” explains Michael Becker, Assistant Professor of International Human Rights Law at Trinity College Dublin.
In decisions like these, the Court typically votes on each provisional measure separately, with a simple majority needed for a measure to be adopted.
Once the judges’ decision is made public this afternoon, comparing any provisional measure orders it issues with those requested in South Africa’s application will be the immediate task of the two legal teams, their governments and observers around the world.
“That’s a big thing,” says Becker. “Whenever these come out, the thing is to go back and see what exactly did the party requesting the measures ask for? And what did they (the Court) do? Because they’re not limited to agreeing or disagreeing with what was requested. They can create their own.
“So often things will get left out. They might impose most of the measures but not some, and then they might change the scope of some of the measures.”
How might the Court rule today?
Becker does not foresee the Court adopting South Africa’s requests wholesale.
“It would not surprise me for the Court to direct Israel to ensure that military operations are in compliance with international law, or with the Genocide Convention specifically,” he says.
While Becker says such a ruling would be dissatisfactory for many, “the fact that the Court is saying it in the first place, should be understood as a very strong statement of concern on the Court’s part”, and a signal that Israel should show greater restraint.
“People can disagree vehemently about the nature of Israel’s response, but I think most people would be hard pressed to argue that Israel doesn’t have genuine security needs.”
“The judges are not stupid,” he says, pointing to the example of the Ukraine vs Russia case, where the Court issued provisional measures ordering Russia to stop its invasion.
“The Court would have issued that order in the knowledge that Russia was unlikely to comply, which turned out to be the case.”
What has happened in other genocide cases?
Each case at the ICJ involving the Genocide Convention has its own unique characteristics, but there have been instances, like the Ukraine case, where the Court has issued provisional measures in line with those requested in a state’s application.
For a number of reasons though, the case of South Africa vs Israel is different.
“There’s no case that’s exactly like it,” says Becker.
Other cases involving the Genocide Convention offer possible outcomes, too, ones in which the Court did not order the measures requested by the applicant countries.
In 2019, Gambia filed a case against Myanmar at the ICJ accusing its government of committing genocide against the Rohingya people, a minority ethnic group in Myanmar. The Court did not adopt Gambia’s requested measures in that case, instead opting to essentially signal to Myanmar that it must abide by the law.
“That was dissatisfying to many people because of course, that’s what the whole case is about, is Myanmar complying with the Genocide Convention? So to order them to simply do it, they would say, ‘well we are’.
“Many people saw that as underwhelming,” says Becker.
Today’s announcement may well receive a similar response.
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