South Africa has staged a landmark legal showdown at the International Court of Justice after accusing Israel of “genocidal acts” in its campaign in Gaza.
The case is one of at least three potentially facing Israel as its actions against Hamas come increasingly under the crosshairs of international law.
South Africa sought emergency orders from the ICJ — “provisional measures” in the jargon.
This means that the court does not necessarily have to agree with Pretoria’s seminal case. Instead, it must judge whether there is a risk of “irreparable prejudice” to Palestinian rights.
“At the interim measures stage, the Court will not decide that genocide is taking place in Gaza,” said Cecily Rose, assistant professor of public international law at Leiden University.
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“Rather, the Court would only assess whether there is a risk of irreparable prejudice to rights held under the Genocide Convention, in particular the right of Palestinians in Gaza to be protected from acts that threaten their existence as a group,” Rose said. AFP.
Pretoria asked the court to issue several orders: that Israel “immediately suspend” its attack on Gaza, stop forced displacement, allow humanitarian access and preserve evidence.
The ICJ can order all measures requested by South Africa. He could refuse to order anything. He could order something completely different or even decide that he is not competent to judge.
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After the court decides whether or not to apply emergency measures, it will consider the broader case “on the merits” — South Africa’s charge that Israel is in violation of the UN Genocide Convention.
Decisions of the ICJ — often known as the “World Court” — are binding on countries and cannot be appealed.
However, the ICJ has no way of enforcing its decisions and sometimes they are completely ignored.
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For example, the court ordered Russia to stop its invasion of Ukraine a month after it began.
Celine Bardet, an expert on international law and war crimes, said any decision would be at a “symbolic level”.
“It will remind the world that states are also accountable, and that is important,” he told AFP.
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“It could also allow states to take action on the back of the decision — imposing sanctions, for example.”
The ICJ is not known for its speed, but “provisional measures” take precedence over all other cases, and a decision can be relatively quick — a matter of weeks.
The decision of the broader “merits” case, on the other hand, will likely take several years.
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South Africa sued Israel because both countries are signatories to the United Nations Genocide Convention, drawn up in 1948 as the world vowed “never again” after the Holocaust.
In its testimony it is stated that Pretoria is “keenly aware” of the “particular weight of responsibility” that it has to accuse Israel of all countries for violating the Genocide Convention.
But it also says that no attack can justify alleged violations of the Convention and that Israel has “its own obligation” as a signatory to prevent genocide.
South Africa has long been a staunch supporter of the Palestinian cause, with the ruling African National Congress (ANC) party often linking it to its own struggle against apartheid.
The two countries severed diplomatic relations over the issue.
The ICJ decides disputes between countries and is often confused with the International Criminal Court (ICC), also based in The Hague, which prosecutes war crimes by individuals.
ICC Prosecutor General Karim Khan has an open investigation into the events in Gaza and has pledged to “intensify” his investigation.
Five countries, including South Africa, called in November for an ICC investigation into the war in Gaza, and Khan says his team has gathered a “significant body” of evidence.
International legal experts told AFP that war crimes had probably been committed by both sides.
Finally, the United Nations asked the ICJ to examine the legal consequences of Israel’s actions in the Palestinian Territories.
This will be an advisory opinion and will not focus on the military operation after 7 October.
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