South Africa seeks ICJ emergency order to halt genocide in Rafah

Feb 15, 2024
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South Africa has made an urgent request for the International Court of Justice (ICJ) to issue emergency orders to prevent “large-scale killing, harm and destruction” from Israel’s imminent assault on Rafah. The ICJ, which is preparing to commence separate hearings on the legal status of Israeli occupation next week, has yet to respond. The world awaits the Hague’s response.

Readers of P&I may not be aware of the proceedings presently before the International Court of Justice (ICJ), which proceedings are to involve the taking of oral submissions before the Court from Monday 19 February up to and including Monday 26 February, that is, six sitting days.

Readers are of course aware of the dispute brought by South Africa, the preliminary hearing of which resulted in the decision by the Court, published on 26 January, making provisional orders. That is an example of one role of the ICJ, namely to determine legal disputes between States submitted to it by States or a State.

The proceedings commencing next Monday constitute the other role of the ICJ, namely to give an advisory opinion on legal questions referred to it by United Nations organs or agencies. In this instance the General Assembly of the UN, by resolution on 30 December 2022, requested an advisory opinion. The relevant part of the resolution reads as follows:

“Considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:

(a) “What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem and from its adoption of related discriminatory legislation and measures?

(b) “How do the policies and practices of Israel referred to in paragraph (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”

The proceedings have involved the presentation of written statements, which statements had to be received by 25 July 2023. Fifty-seven such statements were received by the Court from States and organisations entitled to so submit pursuant to the Statute of the Court. Those fifty-seven were then given the opportunity to comment upon the submissions of others by 25 October 2023. Neither statements nor comments have to date been made public. This may occur with leave of the Court after the opening of the oral proceedings.

The oral proceedings commencing on Monday enable entities who have submitted to date to appear and make an oral submission. Fifty-two States and three international organisations have indicated their intention to do so.

The three international organisations are the League of Arab States, the Organisation of Islamic Cooperation, and the African Union. The State of Palestine, as an observer state of the General Assembly, is one of the fifty-two States. It is of interest to note that included in the submitting States are Canada, the United States, Russia, France, China and the United Kingdom. Not included is Australia. Nor, for that matter, is Israel, although it seems likely that the US and the UK will ensure that its interests are expressed.

First to make an oral submission will be the State of Palestine, followed by South Africa. Each entity making a submission appears to be limited to a half-hour. The US and Russia are due to give their oral submissions on Wednesday 21 February; China is due to give its on Thursday 22 February; and the UK will give its on Friday 23 February.

One would expect that each of these submissions will attract significant media interest.

It will be of critical interest for the world to receive the resulting judgment.

Since writing the above the writer’s attention has been drawn to the fact that South Africa has sought further orders of the ICJ to those of 26 January, which orders would address Israel’s declared intent of a Rafah assault.

The urgent request to the ICJ was made on Monday 12 February, with the intention of preventing “large-scale killing, harm and destruction”. South Africa apparently further alleges that Israel is already in breach of the 26 January provisional orders.

The Court has not as yet commented upon the application. The urgency of the application may impact upon the timetable indicated above for sittings on the advisory opinion, listed from 19 to 26 February.

The world awaits the Hague’s response.

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