THE HAGUE, NETHERLANDS – JANUARY 11: Public hearings in South Africa’s genocide case against Israel began on Thursday at the International Court of Justice (ICJ) in The Hague, Netherlands on January 11, 2024. On the first day of the trial, South Africa will be presenting hard evidence in the case it filed on Dec. 29, accusing Israel of genocide and violation of the UN Genocide Convention with its actions in the Gaza Strip since Oct. 7. The South African side will be requesting an injunction by the top UN court to halt Israel’s military assault on Gaza, which has dragged on for more than three months, with the death toll rising to over 23,300. (Photo by Dursun Aydemir/Anadolu via Getty Images)
“No one will stop us, not The Hague, not the axis of evil, and not anyone else,” Israeli prime minister Benjamin Netanyahu pronounced on Saturday evening, cementing his country’s commitment to an ongoing military campaign in Gaza.
Now the axis of evil (AKA Iran and its allies) is one thing. But the International Court of Justice (ICJ) is another. If the United Nations-run body were to ultimately rule that Israel has breached the Genocide Convention of 1948 – would Netanyahu really be able to ignore it?
Well, quite possibly. There have only been three charges of genocide brought to the ICJ in its near-century long lifespan. Western nations have typically been reluctant to bring forth accusations of genocide, but when cases have been brought, they have underlined the downsides of a world court designed to resolve disputes between states.
The ICJ has faced accusations of moving achingly slowly, showing extreme inaction due to a climate of judicial restraint and having negligible power of enforcement.
Yet proponents of the ICJ tend to believe in the importance of international law – law that builds a bridge between different countries and connects the world under a set of particular morals and duties. Such actors would say the ICJ’s telos is different to that of a domestic court – being less to punish and more to influence and affect a country’s international reputation.
International law itself, however, is murky. What it does not consist of is one clear legal text or book, rather different treaties and conventions, all established at different points in time.
One of these is the Genocide Convention of 1948, which South Africa claims Israel has breached in respect of Palestinians in Gaza. The Convention states all countries have an international legal obligation to prevent genocide. Genocide, as defined in this treaty drawn up after the Holocaust, denotes “killing” or “deliberately inflicting … conditions of life calculated to bring about its physical destruction in whole or part” towards a targeted group with “intent to destroy” said group.
If both Russia and Myanmar have simply ignored the ICJ’s orders, it seems reasonable to ask what the point of the Court is in the first place.
We’ve been here before – but it’s never led to full conviction
South Africa’s case is the fourth time an investigation has been launched into a violation of the Genocide Convention. The first was in 1993 by Bosnia against Yugoslavia; the second was The Gambia against Myanmar in 2019 on behalf of Rohingya Muslims and the third was Ukraine against Russia in 2022.
The first was brought by Bosnia against Serbia which found Serbia not guilty despite the horrors of the Srebrenica massacre, a verdict which deeply disappointed many human rights activists especially as the case dragged on for 14 years.
The second was brought by The Gambia on the basis of Myanmar’s violations in respect of the Rohingya Muslim minority; Myanmar has ignored a directive from the Court which in 2021 imposed provisional measures on the junta there not to commit genocide. Russia, being accused of violating the Genocide Convention by Ukraine, is currently blanking similar orders from the ICJ’s to end its full-scale war.
After South Africa and Israel presented their arguments during a two-day public hearing last week, but the court will not deliver a provisional ruling for several weeks. At this point it could deliver an interim measure which would legally oblige Israel to end its campaign in Gaza (similar to its approach in the cases of Myanmar and Russia). This is because South Africa has specifically demanded the ICJ move swiftly using “provisional measures” to stop further crimes from occuring due to the “emergency” situation.
But if the countries in the dock can simply ignore the Court’s orders – it seems reasonable to ask what is the point?
What is the ICJ?
Housed in the optimistically-named Peace Palace of the Hague – a vast, if rather odd, building funded by Andrew Carnegie in 1913 – the ICJ was created by the United Nations and serves as one of their six main organs. The UN established it in 1946 after a previous iteration founded by the UN predecessor the League of Nations broke down. The ICJ sits in a room in this palace, which is decorated by lavish ‘gifts’ donated by countries – iron gates from Germany; a fountain ornated with polar bears from Denmark; a carpet from Turkiye; stained glass windows from Britain.
Inside this grand building sits the ICJ’s 15 judges who all hail from different countries and serve terms of nine years. They are elected by the UN. A country can only be represented by one judge – but judges do not, however, represent their country: they are independent.
The UN has two courts – one prosecutes individuals, the other prosecutes states
The ICJ is the only court that serves the 193 countries in the UN and is designed to deal with disagreements between states – not individuals.
When it comes to individuals the international system has a different, much newer court – the International Criminal Court (ICC). The ICC was set up by the Rome Statute in 1998; 124 members of the UN have signed up – neither the US nor Israel have done so. The ICC is currently investigating events in Palestine and could prosecute individuals for atrocities committed by any party during the conflict. In addition to fighting Israel’s case at the ICJ, Netanyahu himself is being accused of “genocide, crimes against humanity and war crimes” at the ICC.
The ICC has also issued a warrant for Vladimir Putin’s arrest for actions in regard to Ukraine. This has had some, albeit limited impact. It has restricted Putin’s international travel as states party to the ICC are meant to arrest him should he step on their territory. However, allies or sympathisers have brazenly ignored this request, a case in point being South Africa which invited Russia to its Brics conference last year.
The Serbian case also demonstrates the difficulty of dealing with nation states, which are not constant.
The only genocide case to reach its ruling: Bosnia versus Serbia
In 1995 at the height of the wars fought as former Yugoslavia disintegrated, Bosnian Serbs, backed by Serbia which was pursuing a campaign of ethnic cleansing against Bosnian Muslims, captured Srebrenica. Despite Srebrenica having been declared a safe haven by the UN,over 8,000 civilian men and boys were killed in Europe’s worst atrocity since the Holocaust.
Yet fully 14 years after Bosnia went to the ICJ to accuse Serbia of genocide, the ICJ ended up acquitting the Serbian state, though it conceded Serbia had breached the Genocide Convention by failing to prevent the atrocity from occuring. The judges found by 11 votes to 4 that Serbia was not complicit in genocide.
The ICJ’s verdict was hugely disappointing to human rights activists across the world who had hoped the court would find Serbia guilty. The case demonstrated judicial reticence, a phenomenon denoting a bias in legal decisions towards maintaining rather than challenging the status quo.
It also pointed to the limitations of the ICJ – which was set up with the aspiration to prevent genocide in the aftermath of the Holocaust, rather than to prosecute the perpetrators.
Prosecutions have to be pursued through the International Criminal Court (as we have seen) or special tribunals abolished by the UN such as The Hague War Crime Tribunals for Rwanda and the former Yugoslavia.
The Serbian case also demonstrates the difficulty of dealing with nation states, which are not constant. Bosnia pointed the finger at Serbia yet the modern state of Serbia did not actually exist until 2006 – it was still the Federal Republic of Yugoslavia until 2003.
Multiple militias and groups were involved in atrocities committed against Bosnian Muslims. With this in mind, it’s much more difficult to isolate the Serbian state as ultimately responsible. The perpetrators of the massacre in Srebrenica were Bosnian Serbs, not Serbian Serbs.
Ultimately ICJ can set a benchmark – even if it is subject to interpretation and can’t really enforce its own judgements
So, what power does the ICJ actually have?
The ICJ’s final ruling is legally binding. But it cannot enforce compliance unless it invoked an act of the UN security council – and the US could veto this as it has done before in the case of the US versus Nicaragua.
However, some commentators argue that it would be difficult for Israel to ignore a charge of genocide. Kenneth Roth, former director of Human Rights Watch, argues it “would be deeply stigmatizing for a country that was created as a refuge from genocide, adding considerable pressure on Netanyahu to stop”. International actors, such as states but also influential charities, NGOs and political bodies would likely feel more critical of an Israeli state were it accused of genocide. It would almost certainly impact the US’s, so far unwavering, support for Israel – which constitutes a huge pillar of Netanyahu’s operational capacity.
Ultimately ICJ can set a benchmark – even if it is subject to interpretation and can’t really enforce its own judgements. A domestic criminal court might seek to punish, that is not the jurisdiction of this Court. Instead it seeks to influence the minds of the “international community” – and the standards of behaviour which underpin the pompous sounding, but ultimately benevolent, ‘international rules-based system’.
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