What you should know about ICJ set to hear SA genocide case against Israel

The International Court of Justice (ICJ) is set to hold its first hearing in SA’s genocide case against Israel at the Hague on Thursday.

SA filed a lawsuit in December, accusing Israel of violating the Genocide Convention in its war on Gaza that has left more than 23,000 Palestinians dead.

The legal minds representing SA at the hearing include Tembeka Ngcukaitobi SC as well as Max Du Plessis SC who specialises in public law, human rights, international law and competition law.

International Law expert from the University of Witwatersrand, Patrick Lukusa Kadima has outlined the key points on the ICJ.

What is the International Court of Justice?

I think it is important for me to mention from the onset that there has been a lot of misinformation or mix-up in terms of the court. The International Court of Justice (ICJ) and the International Criminal Court (ICC) are two different courts, situated in the Hague, Netherlands. The two courts have different functions and the only similarity they share is that they are based in the same city.

The primary function of the ICJ is to adjudicate matters between states. For example, the ICJ has adjudicated cases between Botswana and Namibia over the Kasikili/Sedudu Island matter. So, essentially the court deals with a lot of disputes between nations on territories or maritime.

What is the International Court of Justice’s jurisdiction?

The ICJ is also known as the World Court. The ICJ’s jurisdiction is twofold; the first is the court ‘decides, in accordance with international law, disputes of a legal nature that are submitted to it by states (jurisdiction in contentious cases)’ and the second is it has the power to give advisory opinions on legal questions brought to it by organs of the United Nations, UN specialised agencies as well as UN-related organisations authorised to make such a request.

Article 34 of the court’s statute is clear that only states may be parties to cases before the court. Article 36 and 37 of the ICJ statute are clear in what instances the court will assume jurisdiction. On the other hand, advisory opinions are not binding under International law but they do provide the court’s interpretation of International law.

Despite the advisory opinions not being binding, they do carry legal and moral weight. The court derives its jurisdiction to grant advisory opinions from Article 96 of the Charter of the United Nations as well as Article 65 of its statute.

What action can the International Court of Justice take?

In terms of the proceedings instituted by SA against Israel, I would first note that none of us should expect this week’s court hearing to dismiss the country’s case or to rule that Israel has committed genocide.

In the next two days, while the court hears oral arguments from both sides, its main objective will be to decide which “provisional measures” are granted if any. Some provisional measures that the ICJ might rule on might be that Israel preserves evidence and takes effective measures to avoid the destruction of that evidence as it was in the Case of Gambia v Myanmar.

The other provisional measure the ICJ might be to look into allowing sufficient humanitarian access which has been a contentious issue of late. These are just some of the provisional measures that the ICJ could grant.

When did the ICJ hear the most recent case?

The most recent case heard by the court was the Aerial Incident of January 8 2020 in Canada, Sweden, Ukraine and the United Kingdom v. Islamic Republic of Iran. The Judgment has not yet been released in this regard. The court heard the matter on July 4 2023.

The case concerned the shooting down of a Ukrainian International Airlines Flight by Iran’s Islamic Revolutionary Guard Corps. All passengers and crew members aboard the flight were killed. Many of these passengers were nationals and residents of the applicant states.