On December 29, 2023, the Republic of South Africa instituted proceedings against the State of Israel before the International Court of Justice (ICJ) concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip and requested the ICJ to indicate provisional measures.
But, why the ICJ? Who are the members of the ICJ and how does the court work?
It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.
All member states of the UN are party to the ICJ Statute and may initiate contentious legal cases; however, advisory proceedings may only be submitted by certain UN organs and agencies.
The ICJ consists of a panel of 15 judges elected by the UN General Assembly and Security Council for nine-year terms.
Located in The Hague in the Netherlands, the ICJ was established in 1945 following the dissolving of the Permanent Court of International Justice.
The current members of the ICJ are:
– President - Judge Joan E. Donoghue from United States of America
– Vice President - Judge Kirill Gevorgian from Russia
– Judge Peter Tomka from Slovakia
– Judge Ronny Abraham from France
– Judge Mohamed Bennouna from Morocco
– Judge Abdulqawi Ahmed Yusuf from Somalia
– Judge Xue Hanqin from China
– Judge Julia Sebutinde from Uganda
– Judge Dalveer Bhandari from India
– Judge Patrick Lipton Robinson from Jamaica
– Judge Nawaf Salam from Lebanon
– Judge Iwasawa Yuji from Japan
– Judge Georg Nolte from Germany
– Judge Hilary Charlesworth from Australia
– Judge Leonardo Nemer Caldeira Brant from Brazil
How does the court work?
The ICJ can rule on two types of cases -
– Contentious cases are legal disputes between States
– Advisory proceedings are requests for advisory opinions on legal questions referred to it by United Nations organs and certain specialised agencies.
The case brought by South Africa against Israel in December last year is the first time a contentious case has been brought against Israel at the ICJ.
South Africa contends that “acts and omissions by Israel...are genocidal in character, as they are committed with the requisite specific intent...to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group”.
South Africa seeks to found the Court’s jurisdiction on the 1948 UN Genocide Convention, to which both countries are signatories. Israel rejects the allegations.
Cases open with the parties filing and exchanging pleadings containing a detailed statement of the points of fact and of law on which each party relies, and an oral phase consisting of public hearings at which agents and counsel address the Court.
After this stage, the judges deliberate in camera (in private, behind closed doors), and then the Court delivers its verdict.
The rulings of the ICJ are final and there is no possibility of appeal.
It is up to the States concerned to apply the decisions of the Court in their national jurisdictions, and, in most cases,they honour their obligations under international law and comply.
If a country fails to perform the obligations incumbent upon it under a judgment, the only remaining recourse is to turn to the Security Council which can vote on a resolution, per the UN Charter.