The landmark two-day hearing is to decide if the court will impose “provisional measures” – such as ordering a ceasefire – while it considers the full case, something that could take years.
Michael Lynk spoke to The Electronic Intifada’s livestream on Wednesday to provide background and analysis of what to expect from this initial stage of the process. You can watch his interview in the video above.
Lynk, a professor of law at Western University in London, Ontario, served as the UN special rapporteur on human rights in the occupied Palestinian territories from 2016-2022.
How to watch
On Thursday, lawyers for South Africa will present their case for three hours. On Friday, Israel’s representatives will have the same amount of time for their rebuttal.
It is also being streamed live on YouTube and you can watch that recording any time:
What is the International Court of Justice?
The International Court of Justice is the principal judicial body of the United Nations and its roots date back more than a century. The ICJ generally decides disputes between states and can also issue advisory opinions at the request of the UN General Assembly.
The ICJ is not to be confused with the International Criminal Court (ICC), which is also based in The Hague. Established in 2002, the ICC hears criminal cases against individuals for war crimes and crimes against humanity.
The ICC has faced growing criticism about its inaction over Palestine, which is why many people are hoping that the ICJ will prove to be a more robust and impartial forum for justice.
South Africa invokes Genocide Convention
Invoking the 1948 Genocide Convention, South Africa filed its application at the ICJ in December over Israel’s attack on Gaza which followed the 7 October assault by Palestinian resistance groups against Israeli military bases and settlements.
South Africa’s complaint states that Israel’s actions “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group” in the Gaza Strip.
Israel’s policies include “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction,” according to the South African complaint.
“The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention,” the complaint adds.
It alleges that Israel is also violating the convention by “failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.”
As well as describing in detail Israel’s horrifying toll of deliberate death and destruction in Gaza, South Africa’s complaint includes pages of statements by Israeli leaders and military officers making clear their genocidal intent.
“Those statements of intent – when combined with the level of killing, maiming, displacement and destruction on the ground, together with the siege – evidence an unfolding and continuing genocide,” South Africa argues.
Here’s a summary of some of the key issues we discussed with Michael Lynk:
What are the “provisional measures” South Africa is asking for?
Provisional measures are an emergency order to freeze the situation, pending the outcome of the whole case that could take years. This is similar to a court order or injunction in a national court.
South Africa is asking the court to “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group,” and other policies, as well as to prevent and punish incitement to genocide.
In November 2019, for instance, Gambia brought a genocide case against Myanmar over its crimes against the Rohingya people. In January 2020, the ICJ ordered provisional measures similar to ones South Africa is asking for against Israel.
Who are the judges?
The court is made up of 15 judges from different countries elected to nine-year-terms by the UN Security Council and General Assembly. In addition, South Africa and Israel each exercised their right to appoint their own additional judge for this case.
Will the court act fairly or based on political considerations?
While political considerations can never be ruled out, Michael Lynk says that there is reason to be “hopeful and expect that the court will rule as judges in an impartial fashion, based on the law and the facts in front of it.”
He points out that the ICJ – albeit with a different panel of judges – issued the landmark 2004 advisory opinion ruling that Israel’s wall and other practices in the occupied West Bank were illegal.
He also notes that the court is currently weighing another advisory opinion on whether Israel’s prolonged military occupation of the West Bank, including East Jerusalem, and the Gaza Strip, is illegal.
In 2019, the court issued an advisory opinion that the UK was unlawfully occupying the Chagos Islands, an Indian Ocean archipelago whose Indigenous people Britain expelled so that the US could use their land as a military base. The court found that the UK “has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible” and return them to Mauritius.
These decisions, Lynk argues, are reasons to believe that the court may take its mandate seriously.
Can the court’s decisions be enforced?
There is no independent international police force that can enforce the ICJ’s decisions, even when they are legally binding. But a ruling against Israel may have serious international repercussions for Tel Aviv.
“International law will not liberate Palestine,” Lynk observes. “In the end, that’s going to have to be a political task between the international civil society pushing the international community to work with Palestinians fighting against the occupation and against the denial of their rights.”
He adds however that international law “combined with international resolve” can be a very important tool, because “for a country to have an allegation of genocide, even provisionally accepted by an important court like the ICJ would do great political damage to it.”
Does South Africa have a strong case?
“This is an extraordinary piece of legal advocacy that the lawyers acting for South Africa put together,” Lynk says of South Africa’s 84-page complaint.
“This is the best single document available about what Israel has been doing over the last three months and it’s accessible to non-lawyers,” Lynk adds. “It is an extraordinary document. And the court has to take this seriously.”
That’s an opinion shared by other observers. University of Chicago political scientist John Mearsheimer, for example, writes that the complaint is “a superb description of what Israel is doing in Gaza. It is comprehensive, well-written, well-argued and thoroughly documented.”
How will Israel defend itself?
Israel often shows disdain and contempt for international decisions, routinely violating UN resolutions.
But it does appear to be taking the ICJ case seriously as evidenced by its decision to appoint Aharon Barak, the former president of its supreme court, to represent it at The Hague.
Lynk expects that Israel will try to argue that the 7 October assault by the Palestinian resistance was a “human rights catastrophe” and will show photos and videos to the ICJ to try to make the case that its response to such alleged atrocities is self-defense justified by international law.
He says that it will be a “tall order” for Israel to demonstrate that its actions are not genocidal, nor even war crimes or crimes against humanity.
Can the ICJ impose obligations on other countries, for example ordering them not to provide weapons to Israel?
Whether or not that is something in the court’s authority, the South Africa application does not make that request.
But Lynk observes that if the ICJ issues strong provisional measures and decides that Israel has a plausible case to answer for genocide, “that would put increasing pressure on those countries that are supporting Israel, either diplomatically or, more importantly, militarily, to be able to review and rethink with respect to this.”
A favorable ruling could also bolster the lawsuit brought by Palestinian Americans and Palestinian human rights organizations in the United States against President Joe Biden and other members of his administration for their role in the Israeli genocide.
What might the court do after these hearings?
The court could decline completely to impose provisional measures. Or, it could agree to South Africa’s demand.
The third option, says Lynk, is that the court could try to play to both sides by “accepting some or all of what South Africa said, but also directing an order against Hamas and other Palestinian armed groups in Gaza, telling them that they should not be committing genocide.”
“It will either be number two or number three, I suspect,” Lynk says. “And I’m saying that as a lawyer who tries to read and understand how this court winds up thinking.”