Israel's violations in Gaza to be examined by international courts in The Hague

By Selman Aksunger

THE HAGUE (AA) – Serious violations of both international humanitarian law and human rights by Israel in Gaza have been documented in numerous reports by organizations affiliated with the UN as well as independent human rights groups.

The International Court of Justice (ICJ) and the International Criminal Court (ICC), both headquartered in The Hague, are the authoritative bodies set to investigate possible crimes by Israel and hold the culpable parties accountable.

With the two world courts working to stop attacks targeting civilians in the Gaza Strip and punish those responsible, here’s a rundown of their roles, powers, differences and prominent features, which will loom large if the responsible parties are called to the docket to face justice.

-International Court of Justice (ICJ)

The ICJ, the primary judicial organ of the UN, was established in June 1945 and commenced activities in the Peace Palace in The Hague, the administrative capital of the Netherlands, in April 1946.

Among the core tasks of the Court are resolving legal disputes between states in accordance with international law and providing advisory opinions on legal issues referred to it.

Exclusively dealing with disputes between states, the Court consists of 15 judges, jointly elected for nine years by the UN General Assembly and the Security Council.

The expenses of the Court are covered by the UN.

-International Criminal Court (ICC)

Established as an independent and permanent criminal court based on the Rome Statute of 1998, the ICC prosecutes individuals who commit genocide, crimes against humanity, war crimes and aggression.

The Court, headquartered in The Hague and operational since 2002, exclusively tries real persons, including heads of state and high-ranking government officials.

While 18 judges are elected for a term of nine years to the ICC, the expenses of the Court are covered by contributions from member countries and donations from third countries.

-Cases that can be opened in the ICJ

Cases in the ICJ are opened depending on the subject matter of international treaties in which states are in dispute. The cases typically involve sovereignty, border disputes, maritime disputes, trade, natural resources, violations of human rights treaties and disputes related to the interpretation of treaties.

In addition to issuing binding decisions resolving disputes between states, the ICJ can also provide non-binding advisory opinions on matters requiring expertise in international law.

-Crimes investigated by ICC

The Rome Statute, which established the ICC, specifies four crimes that the court can prosecute: genocide, crimes against humanity, war crimes and crimes of aggression. Any crime outside the four categories is not within the jurisdiction of the Court.

The first three crimes were detailed in the Statute in 1998, while the crime of aggression was defined after the Kampala Conference in 2010.

- Who can bring cases to the ICJ and ICC?

In the ICJ, only states have the right to bring contentious cases, and potentially all 193 UN member states can appear before the court.

Individuals, non-governmental organizations, companies, or other private entities cannot be parties to a case in the ICJ.

If a state appears before the ICJ on behalf of one of its nationals against another state, it remains a dispute between states.

UN entities, with relevance to the scope of their activities and organs, can seek advisory opinions from the ICJ on matters related to international law. States cannot request advisory opinions.

-Advisory opinions not binding

The authority to initiate cases in the ICC lies solely with the Office of the Prosecutor.

While states or individuals generally submit complaints to the prosecutor, the decision to open a case is at the discretion of the prosecutor, subject to approval by the Court.

There is the possibility to appeal to the Pre-Trial Chamber of the Court against the prosecutor's decision to open or not open a case.

-How cases are initiated in ICJ

The ICJ does not have the authority to prosecute individuals accused of war crimes or crimes against humanity.

As the ICJ is not a criminal court, it does not have a prosecutor who can initiate trials. The ICJ also lacks the power to take the initiative in handling a dispute, and it can only address a dispute if one or more states request its intervention.

For the ICJ to have jurisdiction, states involved in the dispute must accept the Court's jurisdiction, meaning they must consent to the ICJ handling the particular dispute. States can express consent in three ways.

Firstly, two or more states with a dispute on a particular matter can agree through a special agreement to submit the dispute to the ICJ.

An example is the case involving Hungary and Slovakia related to the Gabcikovo-Nagymaros Project, which was heard in the ICJ based on a specific agreement between the two countries.

Secondly, many international treaties include provisions where states commit to accepting the ICJ's jurisdiction in case of a dispute about the interpretation or application of the treaty.

Today, there are clauses in more than 300 multilateral treaties empowering the ICJ. The basis for the ICJ hearing South Africa's case against Israel was the authorization of the ICJ to resolve disputes under Article 9 of the Genocide Convention.

Thirdly, states can unilaterally declare their acceptance of the ICJ's jurisdiction in all cases involving other parties. While 74 states have made such declarations acknowledging the ICJ's jurisdiction, the Court can exercise its general jurisdiction in disputes only when all parties are among the 74 states.

An example is the case concerning the land and maritime boundary dispute between Nicaragua and Honduras in the Caribbean Sea, which was initiated in this manner.

In cases brought before the ICJ, unless the defendant state objects to jurisdiction, the Court does not inquire whether jurisdiction exists.

If the defendant state does not raise an objection to jurisdiction, it is assumed implicitly that the state accepts the Court's jurisdiction, and the judgment becomes binding.

In the Corfu Channel case between Albania and the UK, Albania effectively acknowledged jurisdiction by not objecting to the Court's authority.

-Initiation of cases in ICC

The ICC prosecutor can initiate investigations in three ways.

Firstly, the prosecutor can initiate an investigation proprio motu for crimes committed by any person within the territory of a state party or crimes committed globally by a national of a state party. For example, the ICC Prosecutor initiated an investigation proprio motu for crimes against humanity committed during internal turmoil in Kenya after the 2007 and 2008 elections.

Secondly, the prosecutor can initiate an investigation based on requests from states. The request may come from states that are parties to the ICC, or even non-party states based on the temporary and limited jurisdiction under Article 12(3) of the Rome Statute. The investigations into crimes in Palestine and Ukraine were initially opened under Article 12(3), and later both states became parties to the ICC.

Thirdly, the ICC Prosecutor can open cases related to situations referred by the UN Security Council. In contrast to the other two methods, cases referred to the ICC Prosecutor by the UN Security Council are binding on all UN member states under Chapter VII of the UN Charter and do not require the consent of the referred state. Investigations into Libya and Sudan in the ICC were initiated based on resolutions from the Security Council.

-How is genocide regulated in international law?

The term "genocide" was first introduced into international documents with the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.

Article 2 of the Convention includes the following:

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group."

The definition of genocide in the Genocide Convention is also explicitly used in Article 6 of the Statute of the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as in Article 6 of the Rome Statute, the founding treaty of the International Criminal Court (ICC).

A crucial element in establishing the crime is the determination of the perpetrator's "genocidal intent," which involves actions carried out to destroy, in whole or in part, a particular group solely based on membership in the group.

-Decisions on genocide in ICJ, ICC

In the case brought by Bosnia and Herzegovina, the ICJ rendered a decision Feb. 26, 2007, that said genocide had occurred in Srebrenica, albeit limited in scope. The ICJ convicted Serbia for acting contrary to the Genocide Convention by failing to extradite Ratko Mladic to the International Criminal Tribunal for the former Yugoslavia.

As for the ICC, there has not yet been a genocide verdict issued. But the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) have issued judgments on genocide.

The ICTR found the mayor of Taba city, Jean-Paul Akayesu, guilty of genocide on Sept. 2, 1998, and sentenced him to life imprisonment.

On Sept. 4, 1998, the former Prime Minister of Rwanda, Jean Kambanda, was also convicted of genocide and received a life sentence.

The ICTY, on Aug. 2, 2001, found Radislav Kristic guilty of genocide for the killing of Bosnian Muslim men in Srebrenica. The Yugoslav Tribunal, on June 10, 2010, convicted Vujadin Popovic, Ljubisa Beara and Drago Nikolic for committing genocide against Bosnian Muslims in Eastern Bosnia.

-ICC investigation into Palestine

The Palestinian government, made a declaration on Jan. 1, 2015, accepting the jurisdiction of the ICC under Article 12(3) of the Rome Statute, claiming crimes were committed since June 13, 2014, in the occupied Palestinian territories, including East Jerusalem.

The following after, it submitted the instrument of accession to the Secretary-General of the UN, making Palestine a party to the ICC.

Former ICC Prosecutor Fatou Bensouda announced the opening of an investigation into the situation in the State of Palestine on March 3, 2021, following a preliminary examination that lasted about six years.

As of 2021, there has been no significant progress in the investigation. Current prosecutor Karim Khan acknowledged in a statement after Oct. 7 that there has been no progress in advancing the investigation into crimes committed in Palestine.

Criticism has been raised against the ICC Prosecutor's alleged "double standard" due to the fact that, despite requesting an arrest warrant for a head of state in the Ukraine investigation within a year, no such warrant has been issued for crimes in Palestine after eight years.

- South Africa’s genocide case against Israel

South Africa filed a lawsuit at the ICJ on Dec. 29 alleging that Israel violated the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide with its actions in Gaza since Oct. 7. South Africa requested provisional measures to be taken against Israel.

According to Article 9 of the Genocide Convention, if a state violates the provisions of the convention, any state party to the convention can file a lawsuit at the ICJ against the violating state.

South Africa, citing the urgency of the situation, requested that the ICJ issue provisional measures, and hearings on these provisional measures are scheduled Jan. 11 - 12 in The Hague.

Previously at the ICJ, separate genocide cases were filed by Bosnia and Herzegovina and Croatia against Serbia, based on the Genocide Convention.

In cases before the ICJ, such as Gambia's case against Myanmar for the investigation of genocide against the Rohingya Muslims and Ukraine's case against Russia, the claims are grounded in the Genocide Convention. In both cases, the ICJ accepted the requests for provisional measures made by the plaintiff states, instructing Myanmar and Russia to cease violations until the end of the trial process.

- Israel's response

Tzachi Hanegbi, the Chairman of Israel's National Security Council, dismissed the genocide accusations from South Africa as "slander" and he said: "We will participate in this absurd lawsuit, which is a false accusation, and we will refute it."

Israel announced its participation in the hearings on provisional measures at the ICJ scheduled for Jan. 11-12.

Regarding the legality of Israel's occupation, the UN General Assembly requested an advisory opinion from the ICJ in 2023 to assess the legality of Israel's practices in the occupied Palestinian territories.

Fifty-seven countries and international organizations, including Türkiye, will present oral statements to the Court during hearings starting Feb. 19.

While advisory opinions from the ICJ are not legally binding, they are often considered by many states and organizations, and compliance with the given opinion is observed. If the ICJ's opinion is in favor of the unlawfulness of the occupation, it may increase pressure on Israel, and countries supporting Israel may be openly accused of complicity in the violation by the international community due to the attacks on Gaza.

In a previous advisory opinion in 2004, the ICJ found Israel's construction of the wall in Palestinian territories to be unlawful. Following that decision, many states and companies restricted trade with Israel regarding construction materials.

-Decisions made in ICJ

The ICJ can delineate boundaries based on the issue under trial, establish sovereignty or determine interpretation of a treaty.

In addition, if the subject of dispute involves an unjust act or a violation of a treaty by a state, the ICJ can, in its decision, demand the cessation of the violation, an acknowledgment of the violation with an apology from the offending state, if possible, the restoration of the situation to its state before the violation, and compensation to be paid. If the ICJ rules that Israel has violated the Genocide Convention, it can decide to end the occupation in Gaza, recognize the genocide, and compensate the people in Gaza for losses.

As a criminal court, the ICC can impose a life sentence or, within a specified period, a prison sentence not exceeding 30 years on a convicted person.

In addition to imprisonment, the Court can rule on fines, confiscation and the forfeiture of gains, according to procedural rules established by the Court.

-Impact of decisions in ICJ, ICC on each other

Although the decisions of the courts are not binding on each other, it is possible for the decisions of both courts on the same event to influence each other.

Due to the more decisive nature of the ICJ compared to other courts, a potential genocide ruling from the ICJ opens the way for the ICC to file genocide charges against Israeli officials.

Statements by Israel in the genocide case in the ICJ can be used as a confession of guilt or new evidence in the case before the ICC.

Similarly, if an Israeli defendant is punished for genocide in the ICC, the ICJ can rule that Israel acted contrary to its obligation to prevent and punish genocide.

*Writing by Esra Tekin in Istanbul