By J.M. Jakus and Liberty Shockley*. Edited by Evin Demir
Mounting escalation in the Palestinian territories has yielded an avalanche of legal initiatives ranging from lawsuits filed against presidents, an acute intensification of long-standing territory disputes, and an active genocide case—will we see a war tribunal with it?
Alongside an ever-increasing number of complaints lodged against Israel, a revival of unresolved complaints pertaining to the Palestinian territories and a genocide case against Israel in the International Court of Justice (ICJ) spearheaded by South Africa. The 50 lawyers who compiled the genocide case are preparing a separate lawsuit against the US and UK governments on the grounds that they are complicit in Israeli forces’ war crimes in Palestine. The ICJ issued a ruling on the request for the Indications of provisional measures submitted by South Africa concerning the “Application of the Convention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa vs. Israel)”on 26 January 2024. This holds symbolic significance as well for being the eve of Auschwitz Liberation Day, the catalyst for the international courts’ creation.
It is still considered a pending case. The ICJ issued an order for five of the nine provisional measures requested by South Africa, with many slightly changed or abridged from the request. These provisional measures include stopping killing or harming Palestinians in Gaza, taking effective measures to prevent destruction and ensure the preservation of evidence related to Articles II and III of the Genocide Convention, as well as to prevent and punish public incitement to commit genocide. ICJ President Judge Donoghue says the ruling creates international legal obligations for Israel, and they must submit a report on February 26 demonstrating compliance. However, many are questioning what tangible outcomes might come of this.
Although the Court denied Israel’s request to dismiss the case, it did not explicitly mandate a complete ceasefire either. However, whether one views the ICJ ruling as appropriate or inadequate, it’s worth asking: (1) how does this case sit within the list of other unresolved cases, and (2) what do they collectively point to? Put differently, will the case of South Africa versus Israel lead to a war tribunal, or will it fizzle alongside other open cases?[i]
Since the formal launch of the case by South Africa on 29 December 2023, the Arab world, Africa, and Turkey have expressed their support for South Africa. The US, UK, Germany, and, to some extent, Canada have backed Israel in the ICJ. Although the US has been pressuring Switzerland against hosting a global conference on violations of the Geneva Conventions (ICRC), the recent ruling on 26 January 2024 will likely be the first among many scrutinizing the last three months. However, as the world braces itself for months of jargon, understanding the broader context of what the international courts can (and cannot) do is essential.
While the limits of the UN are quite evident, to what extent can they affect accountability, and on what timeline? The Red Cross is the legal authority for the Geneva Conventions. Although the UNSC can initiate a war tribunal, they are not particularly inclined to do so since it’s under the ICC’s umbrella of duties. Likewise, to be a part of the international committee of the Red Cross (similar to the courts and UN bodies), one is bound to their legal jurisdictions. In this case, both Israel and Palestine are members of the ICRC. When they pass resolutions (as in the UN), these are legally binding and hold equal power to a UN resolution. While this can be violated, it is loaded with high political pressure. Membership determines jurisdiction.
The UN Independent International Commission of Inquiry, headquartered in Geneva, has been collecting evidence of war crimes committed by both sides as of the 7th of October, but little has been held accountable. Not only has this led to further escalation, but steeper allegations. There has also been an open call for submissions, particularly for international crimes. By October 10, the United Nations Independent International Commission of Inquiry (IICI) on the Occupied Palestinian Territory declared there was ‘clear evidence’ of war crimes in Israel and Gaza. The independent not-for-profit, non-governmental organization announced it would share information with relevant judicial authorities, especially the ICC. Although the IICI is not part of the UN, it has a seat at the Hague and works closely with the United Nations.
South Africa filed a genocide case against Israel before the ICJ on December 29: “Urgent order declaring that Israel was in breach of its obligations under the 1948 Genocide Convention,” a treaty drafted in the wake of the Holocaust. South Africa asked the court to issue provisional (short-term) measures ordering Israel to halt its military campaign in Gaza (29 Dec). “It appears the ICC may be the judicial elephant in the room,” states Balkees Jarrah, an associate director of the international justice program for Human Rights Watch. Malleable legality lent itself to a system wherein legitimacy was a byproduct of law rather than the other way around, paving the way for decades of volatility.
The Laws of Peace
According to the UN Charter, the UN functions as an international body to maintain peace and security and develop harmony and cooperation in international problems. Article 2, paragraph 7 specifically discusses that the UN does not have authorization to “intervene in matters which are essentially within the domestic jurisdiction of any state,” which further questions the UN’s power in the Palestinian territories. Chapter VII is an exception to this rule, which discusses the prerogative of the UN Security Council’s obligations to make recommendations and exercise measures concerning threats and breaches of peace and acts of aggression. The back and forth continues with Article 51 under Chapter VII stating that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations,” but does not absolve the Security Council’s “authority and responsibility” to take action.[ii]
This means that the fighting in Israel and Palestine is considered an international armed conflict under international humanitarian law, and regardless of territory control and self-defense, the UN Security Council holds an obligation to intervene to restore international peace. However, if it is ruled that a party does not have legal grounds as a sovereign state, the ICC doesn’t have jurisdiction to investigate crimes according to the Rome Statute (which Israel has not ratified).
The Laws of War
International Humanitarian Law (IHL) is a set of rules seeking to establish norms of behavior and limit the effects of armed conflict. There are 28 primary treaties that form the basis of International Humanitarian Law and related causes concerning the protection of victims of armed conflicts, the International Criminal Court, the protection of cultural property in the event of armed conflict, the environment, and weapons. These 28 treaties have various rates of acceptance (and therefore varying power of enforcement), with only the Geneva Conventions and the Convention on the Rights of the Child ratified by all 196 states.
According to the International Committee of the Red Cross, this establishes IHL as a universal body of law, and all parties– from governments to non-state actors– are obliged to comply with it and the customary law formed from it. Whether they do or not is another question. Because transgression is inevitable, accountability measures were also created to uphold the IHL and the Geneva Conventions with it. The controversy of the creation of the state of Israel even found its way into the ratification of the Geneva Conventions. Recall that Israel was accepted as a UN member state in 1949, and the Geneva Conventions were signed in August of the same year. Member states have the power to submit reservations or declarations when they ratify a treaty, which can declare that they do not accept the terms of a specific article or will but want their reservations on the official record. For each of the four Geneva Conventions, Yemen, one of Israel’s biggest opposers, submitted a declaration that the accession of Yemen to the Geneva Convention “by no means implies recognition of Israel.” Furthermore, three Additional Protocols to the Geneva Conventions have varying degrees of acceptance by the international community. The first protocol deals with protecting victims of international armed conflicts, the second establishes that victims of non-international armed conflicts have the same protections, and the third establishes an emblem for recognition of medical personnel during armed conflict. International law is complex, with States having the ability to sign and ratify a treaty but still submit reservations or a declaration that one article of the treaty may not apply.[iii]
Two core legal delineations frame how international law addresses conflict and accountability: (1) war crimes versus (2) violations of the laws and customs of armed conflict. These terms have codified nuances worth paying attention to. First, the two elements defining war crimes are context (its association with an armed conflict) and mentality (the intent or knowledge of the act and its contextual features).[iv] If the four Geneva Conventions of 1949 serve to establish human rights, then the telltale characteristic of a war crime is that it violates them.[v] Second, there are also customary laws that states may be held accountable for violating.[vi] An example of customary humanitarian law is that even though states have the right of self-defense against an attack, they must follow the “Rule of Proportionality” and refrain from using excessive force in response. They must also follow the “Rule of Reciprocity,” meaning that you cannot commit war crimes even if they were committed against you in your response.
Accountability Measures under International Law
The ICC – a war criminal tribunal–prosecutes individuals for war crimes and crimes against humanity. Although the UN negotiated it in 2002, the ICC is not part of the UN. It was established via the Rome Statute that an independent court should oversee international criminal law (Article 8 of the Rome Statute of the ICC).[vii] Cases can be referred to the ICC by the UN Security Council- who, under Article 41 of the UN Charter, can carry out ad hoc war tribunals such as in the case of the Rwandan genocide and Yugoslavia- or the Office of the Prosecutor can initiate an investigation. For an investigation to occur, sufficient evidence must be present, the situation must fall within the ICC’s jurisdiction, and court proceedings must serve the best interest of victims.
Currently, Israel is not a party to the Rome Statute. However, the Palestinian Authority accepted and ratified the Geneva Conventions and all its Protocols in 2014 and became a party to the Rome Statute in 2015. This means that war crimes or crimes against humanity committed on Palestinian land can be prosecuted by the ICC. Israel’s common rebuttal to these accusations is challenging the legal status of the State of Palestine, which does not have defined borders or territory recognized at the international level. While Palestine is considered a non-member state, it does not meet common legal definitions for statehood by the declarative theory. Still, with approximately 72% of recognition as a non-member state, it may meet the criteria for the constitutive theory. By contrast, Israel has 85% recognition by UN Member states, but it is not likely an argument against the legality of the State of Israel would have any footing.
This gives Israel and other opposers ground to protest the jurisdiction of the ICC in the investigation, which has happened with cases in the past. If the protest on statehood wins, then it may not be recognized that Palestine has the legal standing to accept the Rome Statute, meaning the ICC has no jurisdiction over Israeli land or the land of the Palestinian Territories.
Despite this uncertainty, in 2014, the Office of the Prosecutor of the ICC opened a preliminary investigation to gather enough evidence to prove there were grounds for a full investigation of war crimes committed in the Palestinian Territories. However, full investigations by the ICC can take 10-20 years historically before going to trial, and, as a reminder, they prosecute specific individuals for war crimes, not any States at large. It is also considered a last resort case, as international law favors bilateral resolutions between states. Under the “principle of complementarity,” if Israel chooses to prosecute its own individuals for war crimes, the ICC investigation will pause.
Although the ICC handles individuals and war crimes, state disputes can occur regardless of whether there is an isolated crime or not. (Note that territory disputes are a type of state dispute). For these matters, the International Court of Justice (ICJ) was created specifically to handle both contentious disputes between countries and offer advisory opinions on matters discussed at the international diplomatic level. It is also integral to the functions of the UN – it was established by Article 7 of the UN Charter in 1945 and is its primary judicial organ. Moreover, because formal territorial disputes are current cases in the ICJ, when conflict flares, all subsequent evidence submitted adds to the open case.
The ICC and ICJ are not two-tier prosecution systems (depending on escalating intensity) but complementary courts. In this case, the Republic of South Africa filed a dispute, including war crimes as an aspect, which will lead to an ICC investigation that will identify specific people. In contrast, the ICJ does not have any jurisdiction over prosecuting individuals for war crimes or crimes against humanity, despite providing advisory opinions that sometimes relate to these matters. In other words, the ICC can impose consequences on individuals, but it cannot mandate states to take specific actions (such as fulfilling provisional measures). Ultimately, the ICC handles prosecutions at the individual level, whereas the ICJ deals with the state level.
Recalling the argument on statehood for Palestine, the factors complicating their territorial sovereignty are the history of British martial law and Israeli martial law in the present. The Palestinian territories are separated into three key locations (East Jerusalem, the West Bank, and the Gaza Strip), each corresponding to a different legal ecosystem. East Jerusalem and the West Bank are under martial law–and have been since the Six-Day War in 1967. (Before this, the West Bank was ruled by Jordan).
However, with martial law comes an entirely different set of norms defining “legitimacy.” For example, the Palestinian “Zone A” of the West Bank is subject to a number of heightened restrictions absent anywhere else in the region. For example, Military Order 158 (in effect since 1967) states Palestinians cannot construct water installations without a permit from the IDF. This is one of over 1,800 military orders governing Zone A. According to United Nations Office for the Coordination of Humanitarian Affairs (OCHA) assessments in early 2023, this is accompanied by “49 checkpoints constantly staffed by Israeli forces…139 occasionally staffed checkpoints, 304 roadblocks, earth-mounds and road gates, and 73 earth walls, road barriers and trenches” in the West Bank and East Jerusalem, excluding Hebron (H2). Although OCHA didn’t specify why Hebron was excluded from these stats, it’s plausible that it was omitted because of the sheer difficulty of accounting for the barriers in this city. Hebron is so heavily policed and surveilled that even buildings are divided. This makes it incredibly complex to assess. It also makes it much more difficult to hold extra-judicial actions, such as imprisonment without trial, accountable because the basis of martial law is already, by nature, beneath the executive branch–not the judicial.
There are several pending cases at the ICJ concerning this conflict. The most contentious case was brought forth by South Africa on 29 December 2023, containing two parts. One part was instituting proceedings against Israel for violating the Genocide Convention, and the second part was requesting provisional measures (such as a ceasefire and access to food and water) be taken by the court against Israel.
At the public hearing on the 26th of January, the ICJ ruled that it has jurisdiction over the case and that the allegations against Israel are “plausible” (Note: “Plausibility is a legal standard necessary for issuing provisional measures. In doing so, they essentially rejected Israel’s stance that such allegations were “baseless”). Likewise, among the many provisions in the request for an interim judgment on South Africa’s genocide case against Israel mandated that Israel must submit a report to the ICJ by February 26 outlining what it is doing to uphold the aforementioned orders.
The difficulty of the case itself is made all the more complex by the obstacles of historical events and ideologies. This is evident in the diametrically opposed interpretation of the ruling. “I believe that in exercising the order, there would have to be a ceasefire. Without it, the order doesn’t actually work,” stated South African Foreign Minister Pandor. “How do you provide aid and water without a ceasefire? If you read the order, by implication, a ceasefire must happen.” However, Netanyahu is also citing this as a win: “The US said that the ruling is consistent with its view that Israel has a right to defend itself because it didn’t call for a ceasefire.” In the midst of all this, Majed al-Ansar, Advisor to the Prime Minister of Qatar and Official Spokesperson for the Ministry of Foreign Affairs, noted that Hamas had given an “initial positive confirmation” for a truce deal, although it was still being studied by the Israeli war cabinet. The meetings between Qatari, US, Israeli, and Egyptian officials in Paris took place on the 2nd of February. However, in statements made to a Lebanese news outlet, Al-Mayadeen claimed the Qatari report was “rushed and untrue.”
In either case, although the provisional measures establish specific international legal obligations. However, it would not be the first time this was side-stepped. One case in point was the relocation of the United States Embassy to Jerusalem (Palestine v. United States) and the Legal Consequences Arising from the Policies and Practices of Israel in the Palestine Territory, including East Jerusalem (Request for Advisory Opinion). Israel, however, withdrew its acceptance of the ICJ’s compulsory jurisdiction in 1985, meaning they do not accept the jurisdiction of the court. This is not uncommon; the US also withdrew compulsory jurisdiction, but both parties still regularly participate in the cases.
For these reasons and others, the results from the 26 January 2024 hearing yielded mixed reactions. While some bemoan the fundamental futility of the courts, others cite this as a significant step towards some form of de-escalation. Regardless, the arrangement of the varying courts and legal ratification processes make for a complex and metered way forward. The reality is that it has been a month since the case was filed, and a month remains until it is revisited. Moreover, the process may not finish on the 26th of February.[viii]
In the case of South Africa versus Israel, if the former wins, a probable phase would be a war tribunal identifying specific individuals implicated for their roles in the losses of thousands of lives. If the latter wins, the case is dropped, and the status quo persists. Although a war tribunal is often viewed as the coup de grâce of all the international courts, this would be years in coming and would do little to bring back the lives lost or incalculable damage inflicted.
*Liberty Shockley provides legal analysis and research services to government agencies, small businesses, and academia on topics concerning international law, technology, and political science. She is the founder of Shock Space, an independent research and consulting company that operates at the intersection of space operations and law. Liberty spent her early career in the US Air Force and as one of the first officers in the US Space Force. She worked on experimental space programs, military strategy in air and space, and as a political and cultural expert for South Asia. She holds a master’s degree in Astronautical Engineering from the Air Force Institute of Technology, with a specialization in alternative navigation methods, space law and policy. Liberty has authored many publications analyzing challenges and limitations of the legal frameworks surrounding space, the seas, and governance at conjunction points with human safety and geopolitical conflict.
[i] Already, President Joe Biden and two of his cabinet members were being sued as of the 14th of November for complicity, not simply for supplying weapons but for failure to exercise its influence over Israel. On the same day (26 January), The Center for Constitutional Rights has filed a federal lawsuit on behalf of human rights groups and Palestinians, accusing President Biden and key officials of aiding Israel’s alleged genocide in Gaza. The lawsuit seeks a declaration of complicity in genocide and an injunction to end US military and diplomatic support to Israel. This case, titled Defense for Children International – Palestine vs. Biden, is distinct from the Israel vs. South Africa case in the International Court of Justice.
[ii] Palestine is recognized as a sovereign state by 139 of the 193 UN member states and holds non-member Permanent Observer Status with the UN alongside Vatican City (or “The Holy See”). Israel, in contrast, is recognized by 165.
[iii] What happens when the majority of States are State Parties to a Treaty and don’t do something but one Party isn’t? While the bulk of international law has been made uniform across international treaties, this isn’t always the case. When a state isn’t party to all conventions, these conventions fall short of covering the questions raised by specific subjects. According to IMO, “In those cases, conflict of law rules are necessary to decide which national law applies. These conflict of law rules can either be found in a Treaty or, in most cases, in national law.”
[iv] War crimes are often categorized across five categories and two elements (see the elements in the text). The five categories comprise “(a) war crimes against persons requiring particular protection; b) war crimes against those providing humanitarian assistance and peacekeeping operations; c) war crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare.
[v] According to the UN, these prohibited acts include but are not limited to, “murder; mutilation, cruel treatment, and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
[viii] Please note that this is solely a collection of data based on the survey of the international legal system and does not reflect the personal opinions of the authors.