South Africa vs. Israel

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By SALEM NASSER*

Legal details and context of the case before the International Court of Justice

It is no exaggeration to say that the case brought by South Africa against Israel before the International Court of Justice (ICJ), for violations of the Convention on the Prevention and Punishment of the Crime of Genocide, will be the legal equivalent of the famous confrontation “Rumble in the Jungle“, the fight between Mohamad Ali and Foreman, in Zaire.

I attempt below an explanation as complete as possible of the case and its relevance, in not so technical terms and in a synthetic way.

Some important legal details

The International Court of Justice does not judge people. It judges cases between two states at a time, in contentious cases. In addition to this contentious competence, it has another so-called advisory capacity, through which it gives opinions, answering legal questions from UN institutions.

The South African case is a contentious case against Israel.

The sovereignty of States is the fundamental principle of International Law. Because of this principle, a State can only be judged by an international court if it has expressly accepted its jurisdiction.

This means that, in this case, if Israel was not a party to the Genocide Convention and if it had not accepted the article of the Convention that determines the jurisdiction of the International Court of Justice, the case could not exist.

It is clear that in the next moves Israel will, most likely, challenge the jurisdiction of the International Court of Justice. If this happens, we will be facing one or two years of discussions on this topic alone. If, in the end, the Court decides on its own jurisdiction, we will then have a few more years of discussion on the merits and then a final sentence that will tell us whether Israel is guilty or innocent.

The decision, therefore, on violations of the Convention will not come anytime soon.

The discussion that began on January 11th and 12th is different.

South Africa asked for provisional or precautionary measures, including an order from the Court for Israel to stop attacks on Gaza. When such measures are requested, they take precedence over all other cases under analysis.

To be able to decide on provisional measures, the Court needs to decide some basic things.

The main one is this: it has what is called jurisdiction first faction. As I said, discussing jurisdiction can take a lot of time. Here, the Court only needs to be satisfied that there is a high probability of being competent, of being able to judge the case.

All things considered, it is very likely that the International Court of Justice will consider it to have jurisdiction first faction and end up issuing some type of provisional measure in this case. This conclusion arises, for me, from a reading of the Law, but also from a reading of the context in which the case will be judged in the Court.

The context of the case within the Court

This is the fifth contentious case brought to the Court in which one State accuses another of non-compliance with the Genocide Convention. The previous four were these: Bosnia-Herzegovina vs. Serbia-Montenegro, started in 1993; Croatia vs. Serbia, started in 1999; Gambia vs. Myanmar, 2019 and Ukraine vs. Russia, which started in 2022.

The history of the cases can give us clues as to what can be decided on provisional measures and what the final result may be in relation to the violation of the Convention. The clues arise from the jurisprudence of the Court, as an institution, and also from the positioning of individual judges in previous cases.

In this regard, it must be said that, in principle, the judges who make up the Court are independent and do not answer to their countries of nationality or to the countries that nominate them when they are judges. and following the best practices (appointed only for a specific case, what happens with a judge from South Africa and another from Israel now).

Although judges often position themselves taking into account their own origin and the interests of the States from which they come, the collective's decisions end up being balanced by diversity, the number of judges and the awareness that the most important International Court in the world does not may be seen as irresponsible, incompetent or illegitimate.

In comparison with international courts of Human Rights or International Criminal Law, as well as arbitration courts in investment matters, the ICJ tends to maintain a standard of quality of decisions that is superior in legal precision and balance.

All of this will now be tested, perhaps in an unprecedented way.

Let's consider just the last two cases brought to the Court to see how they might impact South Africa's claim against Israel.

In Gambia vs. Myanmar, the Court unanimously approved provisional measures to be observed by Myanmar in 2020. Since then, three new judges have joined the Court. All things considered, the cases having several elements in common, it is to be expected that here too the Court will order provisional measures binding on Israel.

In Ukraine vs. Russia, the Court, by a majority of 13 votes to two, also imposed provisional measures against Russia. The dissenting votes came from the Russian judge and the Chinese judge.

What is most relevant in this second case is the fact that Ukraine does not accuse Russia of committing genocide or of failing to prevent or punish the commission of the crime. Ukraine says that Russia falsely invoked the occurrence of genocide in the eastern provinces of Ukraine as justification for its military operation.

There is no doubt, therefore, that, in substance, it is a much more fragile case and that the chances of success, in the following phases, are lower. Another very important aspect of this case, of Ukraine, is the unprecedented fact that 32 countries, several of them Western, requested and obtained the right to intervene in the process. Russia considered this a maneuver to build a contentious case of 33 states against one.

A similar strategy was also employed, by a smaller number of States, in the case of Gambia against Myanmar.

Now, we have to wait and see whether States will ask to intervene in the case of South Africa and whether they will be the same.

It will be interesting to see how Israel's usual allies, who intervened in one or another of the previous cases, position themselves in relation to South Africa's demand.

The test for the Court can be summarized as follows: in the cases of Myanmar and Russia, the collective went in the direction that pleased what is usually called the International Community (USA and Europe, basically); In this case, to be consistent with what you decided in the past, you will have to move in the opposite direction.

* Salem Nasser He is a professor at the Faculty of Law at FGV-SP. Author of, among other books, Global law: norms and their relationships (Alamedina). [https://amzn.to/3s3s64E]


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