International courts are often the place for countries to resolve their disputes in a peaceful and law-based manner. One recent example is the dispute between South Africa and Israel. The case covers complex and sensitive issues, including human rights, international law, and global politics. In this article, we will explore where the provisional measures ruling between South Africa and Israel is headed, as well as its implications for both countries and the international community.
South Africa and Israel have a complicated and often tense history of relations. This dispute culminated when South Africa filed a lawsuit with the International Court of justice regarding Israeli actions against the Palestinians. South Africa accuses Israel of violations of human rights and international law in the Occupied Palestinian territories, including the construction of illegal settlements and the treatment of Palestinians.
The conflict between Israel and Palestine is one of the longest and most complex conflicts in modern history. For decades, this conflict has caused great suffering to both sides and has attracted the attention and intervention of various international actors. Efforts have been made to reach a peaceful resolution, but to date, a just and lasting settlement has not been reached. The humanitarian tragedy in Gaza has worsened after Israel launched a retaliatory strike against Hamas. Israel quibbled with the act of self-defense (read: self-defense) because Hamas carried out a rocket attack on October 7, 2023. As a result, civil society fell victim to brutal attacks and an estimated 23,000 civilians on the Palestinian side were killed. Most of those victims were women and children who were supposed to get protection during the conflict.
Attempts to stop attacks on both sides through diplomacy seem to have yielded no significant results. International forums only produce meaningless documents. The UN Security Council as the most authoritative organ for producing resolutions is also blocked by the veto of the United States. This situation then prompted South Africa to applyfor a provisional measureatthe International Court of Justice(ICJ). On December 29, 2023 in The Hague (Netherlands), South Africa submitted an application to the judges of the International Court of Justice one of which is to order Israel to cease its military operations in Gaza and establish a ceasefire.
The court adjudicates disputes involving legal disputes, it has been established that only the state may be a party to cases before the court. These countries are clearly grouped into 3 (three) categories, namely: First, it includes all members of the United Nations based on Article 93 paragraph 1 of the UN Charter; second, countries that are not members of the United Nations that show a desire to remain associated with the court according to the conditions determined in each case by the General Assembly based on the recommendations of the UN Security Council; third, countries that are not members of the UN, but want to appear before the court as parties to a particular dispute but without being participants in the statute.
The jurisdiction of the International Court of Justice is principally based on the agreement of the parties as stated in Article 36(1): “The Authority and the court shall pursue all cases brought by the parties and all rights, especially those specified in the Charter of the United Nations or in applicable treaties and conventions”. The phrase ” all cases brought by the parties” in the above terms refers to all parties to the dispute, but before the International Court of justice exercises its jurisdiction over the dispute filed it takes time for statements from the parties to submit to the court’s jurisdiction.
The International Court of Justice (ICJ), as the main judicial body of the United Nations (UN), has an important role in providing legal opinions and resolving international disputes peacefully. In 2024, the ICJ issued a landmark ruling on the Israeli-Palestinian conflict, confirming the illegality of Israeli actions in the Occupied Palestinian territories, including the expansion of settlements and military operations carried out. From the established provisional measures ruling, there are 6 interim measures ordered. Among other things, Israel must prevent acts of genocide in Gaza; prevent and punish public incitement to genocide; immediately allow humanitarian aid into Gaza; Israel is ordered to keep evidence of genocide; and Israel submits a report to the court within a month.
The ruling was issued in response to a request for legal opinion from the UN General Assembly, reflecting the international community’s deep concern over the escalation of conflict and human rights abuses in the region. However, despite the high legal significance of the ICJ ruling, the implementation and compliance with this ruling often faces various obstacles, both from a political and practical side. Through in-depth and critical analysis, it is hoped that this paper can provide additional insight into understanding the role of the ICJ in resolving international conflicts and offer some arguments that may be useful for future research or for readers.
Berangkat dari Mahkamah International atau International Court of justice (ICJ) mengeluarkan putusan Provisional Measures dalam kasus Afrika Selatan melawan Israel. The International Court of justice has the power to impose Provisional Measures. This authority is regulated in Article 41 paragraph (1) of the statute of the International Court of Justice. Based on these provisions, Provisional Measures are decisions imposed by the International Court of justice against one or both parties to the dispute, which serve to protect the rights of one of the parties to the dispute. Provisional Measures are separate decisions from final decisions. In practice, Provisional Measures are applied by one of the litigants, simultaneously with or after the filing of a lawsuit. In amar’s ruling there are five points, or in short are as follows:
- Israel is obliged to prevent acts that could be classified as genocide in Palestine.
- Israel is obliged to ensure that its military immediately stops the actions on the first point.
- Israel is obliged to process and punish those who call for genocide in Palestine.
- Israel is obliged to facilitate the entry of humanitarian aid into Palestine.
- Israel is obliged to preserve all relevant evidence for the investigation of alleged genocide.
- Israel is obliged to submit a report to the International Court of Justice on the implementation of these Provisional Measures within one month.
The International Court of justice in all its decisions seemed to grant all South African demands. In other words, Israel appears to be “losing”. However, there are some points to note in this ruling. First, this Provisional measure ruling is not a final ruling. This ruling does not state definitively that Israel has been guilty of genocide. The full trial of the International Court of justice until reaching a final verdict could take years. Hence the existence of the Provisional Measures ruling procedure which, in the context of this Palestinian case, in short thereis sufficient prima facie suspicionthat there is genocide in progress that immediate emergency measures must be implemented due to the urgency of the situation. Therefore, this Provisional Measures ruling can be issued less than a month after it is filed on December 29, 2023.
Second, there was no explicit order for a cease-fire or cessation of military operations by Israel, whereas it was South Africa’s number one request in its application. Previously, it should be noted that “genocide” is not just the slaughter of people in large numbers. According to the 1948 Genocide Convention, a unique feature of “genocide” is the intention to exterminate all or part of a particular group. If simply killing people in large numbers without the intention of extermination, there are other types of crimes with other terminology known in international law.
Legal terms often make things complicated and confusing. In this case, the International Court of justice focuses only on the alleged genocide and not on other aspects. In fact, part of the content of the verdict can be interpreted as not being enforceable without a ceasefire, so it can implicitly be considered an order. However, the International Court of justice seems to be of the opinion that the war can continue without genocide, so that only the genocide, not the war, is ordered to stop. This interpretation may be logical but not humane. As a result, Israel may feel that it has not committed genocide, so it continues its actions and claims to have fulfilled at least points 1, 2, 3, and 5 of the verdict.
Thirdly, it is very interesting to observe the voting results of the judges of the International Court of Justice in detail. Almost all Amar rulings were approved by a large majority. Most of the items were supported by 15 judges to 2, and the other two items were supported by 16 judges to 1. However, the most interesting thing is that the judges of the countries that usually support Israel this time supported all the points of the verdict. They include Judge Georg Nolte of Germany, Judge Ronny Abraham of France, and even President Donoghue of the United States
Israel’s Ad-Hoc judge, Aharon Barak, interestingly rejected the majority of the verdicts but not all of them. He supported amar rulings number 3 and 4. In addition, Judge Julia Sebutinde of Uganda rejected all points of the verdict because she felt there was not enough preliminary evidence to show genocidal intent by Israel, as well as seeing a mismatch between the legal issues and its demands. Previously, it has been touched upon that intent is the most important element in proving genocide. However, Judge Sebutinde’s dissent highlighted how “lack of evidence” and “incompatibility” served as the basis for his rejection.
Fourth, there is an order to process and punish those who call for genocide. It is not yet clear to what extent Israel will carry out this order, but it is interesting to consider the possible impact on other legal proceedings. The International Criminal Court (ICC) has also begun an investigation into the situation in Palestine. If the decision of the International Court of Justice leads to sanctions against the state, then the decision of the ICC can lead to a criminal punishment in the form of imprisonment for the perpetrators of international crimes.
Currently, the prosecutor of the International Criminal Court, Karim Khan, is conducting a preliminary investigation that seems to focus on war crimes committed by both sides, both Hamas and Israel. The discrepancy arises because the regulation on war crimes is in Article 8 of the Rome Statute, while genocide is regulated in Article 6. This means that prosecutor Karim Khan is not investigating a genocide case, but rather a war crime, so that both Hamas and Israel could be tried at the International Criminal Court.
Today, there is increasing pressure on Israel to stop its crimes. This pressure comes both from within the country and from the international community, including countries that usually support Israel. The International Court of justice has issued a provisional measure ruling that, despite its limitations, still finds Israel guilty and must stop its actions. In addition, the International Court of Justice is processing an Advisory Opinion supported by Indonesia to affirm the status of the Israeli occupation of the Palestinian Territories. The latest news also mentioned that South Africa has not given up and plans to sue the United States in the International Court of justice for supporting genocide by Israel.
The provisional measures case between South Africa and Israel is a reflection of the complexities and challenges in international conflict resolution. The decision of the International Court of Justice will have far-reaching implications, not only for both countries but also for the international community. Whether the provisional measures will help create peace and justice, or exacerbate tensions, remains to be seen. To be sure, this is an important moment in the history of international law that will shape the direction of relations between South Africa, Israel and the global community.
Writer: Fithriatus Shalihah (Faculty Of Law Ahmad Dahlan University)
