What is the purpose of the International Court of Justice, which examined a complaint of genocide against Israel?

The International Court of Justice (ICJ) examined, Thursday January 11 and Friday January 12, the complaint for genocide filed by South Africa against Israel. Pretoria had entered, on December 29, 2023the highest judicial body of the United Nations, affirming that the military operations in Gaza in retaliation for the attack of October 7 “are of a genocidal character, because they are accompanied by the specific intent required to destroy the Palestinians in Gaza.” Accusations “totally distorted”, and “a deliberately organized, decontextualized and manipulative description of the reality of current hostilities”, defended Israel on Friday before the ICJ.

In its request, South Africa also urgently seized the ICJ to order it to take ” Conservatory measures “ in order to quickly suspend Israeli bombings in the Palestinian enclave, which have caused at least 23,000 deaths in three months, according to the Hamas-led health ministry.

But what is the power of the International Court of Justice? And what is its specificity in relation to the International Criminal Court?

What is the International Court of Justice?

Established in The Hague (Netherlands), the International Court of Justice is the principal judicial organ of the United Nations (UN). It was established following the Second World War, in June 1945, and met for the first time on April 18, 1946. Its mission is to respond to theone of the primary goals of the UN : settle disputes between States by peaceful means, while ensuring respect for the principles of justice and international law.

The ICJ is composed of fifteen judges, elected for a nine-year term by the General Assembly and the United Nations Security Council. They are called upon to rule on disputes around various questions of sovereignty, environment, air incidents, maritime navigation, genocide, etc.

Throughout its history, the ICJ has ruled on French nuclear tests in the Pacific in 1974, hostage taking at the American embassy in Tehran in 1980 or the accusations of genocide in former Yugoslavia in 1996. More recently, in 2023, it examined a dispute around the geographical delimitation of the continental shelf located between Nicaragua and Colombia.

What is the difference with the International Criminal Court?

The scope of action of the International Court of Justice distinguishes it from other international jurisdictions. It cannot be entered by an individual, nor by an NGO, but only by the States themselves. It is not competent to try individuals accused of war crimes or crimes against humanity. The judicial body is also not a criminal court, and does not appoint a prosecutor to initiate proceedings.

In this respect it differs from the International Criminal Court (ICC), also based in The Hague, and undoubtedly more widely publicized. Created in 1998 at the instigation of the UN, from which it is nevertheless independent, the ICC has been investigating, prosecuting and trying people accused of the most serious crimes affecting the international community since 2002: genocide, crimes against humanity, crimes of aggression and war crimes. Governed by the Rome Statute ratified by 123 countries, the ICC can only prosecute individuals, and not states.

How does the ICJ work?

There are two types of proceedings before the International Court of Justice:

• “Litigation procedures”: this is in this context that the body settles disputes between States. As the treaty which creates the ICJ is annexed to the United Nations charter, its 193 member states have access to this jurisdiction – other states can also have access, but under other conditions. But for a case to be submitted to the judges in The Hague, only states which have recognized its jurisdiction can appear before it. The judgments rendered by the Court are final and without appeal (with exceptions). According tosection 94 of the Charter of the United Nations, “each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any dispute to which it is a party”.
• – “Advisory opinions”: the Court can also give advisory opinions on legal questions posed to it by UN organs (General Assembly, Security Council) or other related international institutions (UNESCO, WHO, IFAD, etc.).

In 2003, during the second Intifada, the General Assembly had requested the ICJ to know the legal consequences of the construction of a wall by Israel in the occupied Palestinian territories. In the opinion given one year later, the judges considered that this decision was contrary to international law and that Israel must stop this construction. But he continued construction of the wall, ignoring this opinion. And this is not an exception: several decisions are not executed, even if, in territorial or border disputes, States still more readily apply the judgments of the ICJ.

The Court does not in fact have any enforcement power to enforce them. “In international law, coercive means are difficult because States are sovereign and cannot tolerate constraints imposed on them”explains Pierre Bodeau Livinec, director of the Nanterre International Law Center (Cedin) at Paris-Nanterre University.

The lawyer, however, wishes to point out “the importance of legal qualification” : “In the context of the South African request, even if this procedure will drag on over time, we imagine that it is essential for Israel to know whether it is qualified as a state which has committed genocide or not. » And he added that the decisions of the ICJ, because they are authoritative in international law, can influence diplomatic negotiations.

In what context did South Africa refer the matter to the ICJ?

In his request filed on December 29 before the International Court of Justice, the South African government detailed at length the reasons which led it to make allegations of genocide against Israel. He cites failings of the Jewish state “its obligation to prevent genocide, as well as its obligation to punish direct and public incitement to commit genocide”, which appear in the Convention on the Prevention and Punishment of the Crime of Genocide which Israel, like South Africa, has ratified.

This Convention, adopted on December 9, 1948 in Paris, obliges the then 152 countries, which adhered to it, to prevent and condemn any act of genocide.

It is on this basis that Pretoria is relying on its request to the judges to declare publicly that Israel is in violation of the obligations linked to this Convention. But this decision will not be expected for several months, or even several years. On the other hand, the emergency measures requested, in particular that of stopping Israeli military operations in Gaza as quickly as possible, could lead to a decision by the ICJ within two to three weeks.