The Middle East

ICJ Issues Provisional Measures on the Prevention of Genocide in Gaza

 

By: Rabiya Shamim

Impunity Watch News Staff Writer

THE HAGUE, The Netherlands – On January 26, 2024, the International Court of Justice (ICJ) issued a landmark ruling for provisional measures in South Africa v. Israel, requiring Israel to take “all measures within its power” to prevent acts that could amount to genocide against Palestinians in the Gaza Strip. The ruling did not include a call for a ceasefire.

 
International Court of Justice judges preside over hearings in the Hague, the Netherlands | Photo courtesy of Dursun Aydemir/Anadolu via Getty Images.
  

The case before the ICJ centers on allegations that Israeli forces are committing genocide and ethnic cleansing against the Palestinian population in Gaza. The evidence brought before the court includes multiple instances of indiscriminate strikes, displacement, and destruction of homes and infrastructure, resulting in widespread suffering and loss of life among Palestinians. The court has yet to render a verdict on the occurrence of genocide or determine jurisdiction over the case.

For the provisional measures order, the ICJ had to decide the following:

Prima Facie Jurisdiction: There must be a legitimate reason for the court to have the power to hear the case.

Plausibility of the Claim: The party requesting provisional measures has to demonstrate that the claim is plausible and likely to be successful.

Risk of Irreparable Damage: The parties must show that there is a risk of irreparable harm if the measures are not granted. Irreparable harm refers to harm that cannot be adequately compensated later.

Balance of Convenience or Equities: The court weighs the potential harm to both parties as well as overall fairness.

Urgency: There must be an immediate need to stop harm or maintain the status quo.

As is the practice of the ICJ in contentious proceedings, the Court’s panel of 15 judges was augmented by additional judges from the parties to the case, South Africa and Israel. Aharon Barak, Israel’s judge, and former president of the nation’s Supreme Court supported two of the emergency measures. These measures directed Israel to reduce provocations towards genocide and ensure the entry of aid into the enclave.

In its provisional ruling, the ICJ found that ‘at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’, including ‘the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts’ (§54).  The Court demanded prompt action to prevent further atrocities.

Additionally, the Court ordered Israel to “prevent and punish the direct and public incitement to commit genocide,” and ensure that the enclave receives “humanitarian assistance and urgently needed basic services.” Israel was also ordered to hold onto any evidence pertaining to the allegations of genocide and to provide a report to the court on its compliance with these measures in a month.

Many legal experts and human rights advocates have applauded the ruling. However, Israel has indicated that it would not accept all ICJ rulings. The Office of Israeli Prime Minister Benjamin Netanyahu said on X, “nobody will stop us – not The Hague, not the axis of evil, and not anybody else.”

South Africa’s President Cyril Ramaphosa praised the outcome, calling it a “victory for international law, for human rights, and above all for justice.” While South Africa’s Foreign Minister Naledi Pandor stated that her country was “disappointed” that the court had not imposed a ceasefire, she added that she thought Israel would have to abide by the other orders if it was to follow through on them.

For further information, please see:

Al Jazeera – ICJ orders Israel to prevent acts of genocide in Gaza – 26 Jan. 2024.

Chatham House – South Africa’s genocide case against Israel: The International Court of Justice explained – 26 Jan. 2024

CNN – Top UN court says Israel must take ‘all measures’ to prevent genocide in Gaza but stops short of calling for ceasefire – 26 Jan. 2024.

The Office of Israeli Prime Minister Benjamin Netanyahu – X (Tweet) – 13 Jan. 2024.

Times of Israel – What does Israel need to do to comply with the ICJ genocide decision? – 1 Feb. 2024

UN – Convention on the Prevention and Punishment of the Crime of Genocide – 9 Dec. 1948.

United Nations General Assembly – Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 – 9 Dec. 1948

Washington Post – South Africa welcomes ‘landmark’ ICJ ruling, Israel vows to continue war – 26 Jan. 2024.

 

ICJ Deliberates Request for Advisory Opinion Regarding Israel’s Policies and Practices in “Occupied Palestinian Territory”

By: Megan Qualters

Impunity Watch News Staff Writer

 THE HAGUE, Netherlands – On February 26, 2024, public hearings concluded regarding a request by the UN’s General Assembly (hereinafter “GA”) for an advisory opinion from the International Court of Justice (hereinafter “ICJ”). The GA asked the ICJ to issue an opinion on what it believes the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem” will be.

 
Photo of public hearings at the ICJ on the request for an advisory opinion. | Photo Courtesy of ICJ Unofficial Press Release No. 2024/17.
  

What is an Advisory Opinion

With an advisory opinion, a court, in consideration of a legal question, issues an answer or statement. Unlike a majority opinion, an advisory opinion carries no binding force. Instead, it is typically used as a tool of diplomacy that aims to “keep the peace.” Advisory opinions are also used to clarify and develop existing law.

ICJ Advisory Proceedings Process

A request for an advisory opinion on a legal question must first be made, which can come from various UN organs, such as the general assembly and the security council, according to Article 96 of the UN Charter, and Article 65 of the Statute of the ICJ. The request should be accompanied by documents that “throws light” upon the question presented.

The ICJ then typically issues an order that provides notice of the proceedings to any State that is either entitled to appear before the court or could have information relevant to the question at hand. Next, the Court invites written statements from those States that may be able to provide information relevant to the question.

After the Court considers the written statements and documents provided, it determines whether it should hold an oral hearing. If the Court decides the question at hand requires an oral hearing, then all States shall be informed of the Court’s decision to hold such a hearing and invited to attend.  

Finally, the Court, after considering all the written documentation and oral proceedings, retire to begin deliberations. Once the Court has decided, it will deliver its advisory opinion in “open court (Statute, Article 67; Rules, Article 107).”

The Issue at Hand

On December 30, 2022, the GA of the UN adopted resolution A/RES/77/247, in which it requested the ICJ give an advisory opinion on the following:

  1. “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?” 
  2. “How do the policies and practices of Israel referred to in paragraph 18 (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?”

On January 17, 2023, the GA’s advisory opinion request was sent to the ICJ. On January 19, 2023, the ICJ notified all States that it believed were entitled to appear before the Court.

On February 3, 2023, the ICJ determined that the UN and all its Member States, as well as the State of Palestine, were likely to be able to provide information regarding the question at hand. By July 25, 2023, the ICJ received fifty-seven written statements. The ICJ determined that it would hold oral hearings regarding the question at hand.

Between February 19 and February 26, 2024, forty-nine UN Member States presented oral statements at the public hearings. The ICJ has since concluded its public hearings and retired for deliberation. The date of the Court’s advisory opinion has yet to be announced.

For further information, please see:

ICJ – Advisory Jurisdiction

ICJ – Request for Advisory Opinion: Procedure Followed by the International Court of Justice

ICJ – The Binding legal effect of ICJ advisory opinions

ICJ – Unofficial Press Release: Legal Consequences arising from the Policies and Practices of Israel in  the Occupied Palestinian Territory, including East Jerusalem: Conclusion of the public hearings held from 19 to 26 February 2024 – 26 Feb. 2024

Lex Animation – International Court of Justice ICJ Advisory Opinion International Law explained – 2022

 

ECHR Halts Deportation of Iraqi Family Fleeing ISIS, Citing Human Rights Violations

By: Rabiya Shamim

Impunity Watch Staff Writer

STRASBOURG, France – On 6 February 2024, the European Court of Human Rights (ECHR) issued a landmark ruling in J.A. and A.A. v Turkey regarding the rights of asylum seekers. The case involves a family seeking asylum in Turkey, fearing persecution and violence if returned to their home country of Iraq.

 
Convening of the European Court of Human Rights. | Photo courtesy of Bianet.
  

The applicants, an Iraqi husband and wife with four children, voiced serious concerns over the security situation in Iraq, especially considering that they fled due to ongoing armed conflict, terrorism, and sectarian strife. In support of their claim for international protection, the family highlighted the presence of ISIS (Islamic State of Iraq and the Levant) and the targeted brutality against civilians, especially those perceived to have collaborated with Iraqi security forces.

The ECHR emphasized Article 2 of the Convention, which protects the right to life, as one of the fundamental provisions. Similarly, Article 3 embodies a fundamental principle of the democratic societies forming the Council of Europe. Central to the ECHR’s ruling was the applicant’s claim that their expulsion to Iraq would breach their fundamental rights outlined in Articles 2 and 3 of the Convention, which safeguards the right to life and freedom from torture and inhuman treatment. The Court stressed that these protections are absolute, particularly when people are at genuine risk of persecution or violence upon return to their home country.

The ECHR reviewed the evidence presented by both applicants, and Turkish authorities, acknowledging the complexity of asylum petitions and the difficulties faced by people in substantiating their fears within a short timeframe. The ruling emphasized that states must thoroughly evaluate asylum petitions, particularly in cases where there is a risk of persecution or violence.

Despite the applicants’ diligent efforts to establish the imminent danger they would face in Iraq, the Court found shortcomings in the domestic authorities’ evaluation of their claims. While the Turkish Constitutional Court initially acknowledged the credible basis of the applicants’ fears, subsequent decisions failed to sufficiently address the consequences of the situation in Iraq, especially in the Ninewa region.

The ECHR’s decision reaffirmed the idea that the right to life includes not only protection from immediate harm but also the obligations of states to prevent foreseeable risks to individuals within their jurisdiction. The Court underscored the need to promptly address the plausible threat to the applicants’ safety by granting an interim measure that will prohibit their expulsion until further evaluation.

The ECHR concluded that the applicants’ rights under Articles 2 and 3 of the Convention would be violated if they were deported to Iraq without first undergoing a thorough reassessment of the risks they face. The ruling emphasizes the critical role of international human rights law in safeguarding security and dignity, especially in times of conflict and persecution. 

For further information, please see:

Bianet – ECtHR: Deportation of Iraqi Family fleeing ISIS constitutes violation of right to life – 8 Feb. 2024

Council of Europe – European Convention on Human Rights – 1950

ECHR – CASE OF J.A. AND A.A. v. TÜRKİYE- 09 Jan 2024

Syriac Press – European Court halts deportation of Iraqi family fleeing ISIS citing human rights violations – 9 Feb. 2024

 

 

ICJ Case Regarding Illegal Freezing of Iranian Assets Remains Open

By: Tiffany D. Johnson

Impunity Watch News Staff Writer

THE HAUGUE, The Netherlands – In March of 2023, the International Court of Justice (ICJ) rendered a landmark judgment in the case concerning “Certain Iranian Assets” (United States Diplomatic and Consular Staff in Tehran, United States of America v. Iran), requiring the United States to justly compensate the Islamic Republic for economic sanctions that violated the Treaty of Amity. However, both parties have yet to come to an agreement on the amount due.

 
Members of the Delegation of the Islamic Republic of Iran listen to the International Court of Justice’s judgment in the case concerning Certain Iranian Assets on March 30, 2023, at the Peace Palace in The Hague. | Photo courtesy of Wiebe Kiestra via the International Court of Justice.
  

The case stems from a dispute between the United States and Iran regarding the freezing of Iranian assets by the U.S. government during the Iranian Revolution in 1979. The Foreign Sovereign Immunities Act (FSIA) was modified by the US in 1996 to revoke immunity for states identified as “State sponsors of terrorism.” Many plaintiffs filed lawsuits against Iran, which the US designated as a “State sponsor of terrorism” in 1984, alleging that Iran supported acts that caused damages. This was due to the FSIA’s terrorism exception. Enacted in 2002, the Terrorism Risk Insurance Act (TRIA) allowed for the enforcement of judgments entered in accordance with the FSIA’s 1996 amendment.

Crucially, Section 201 of TRIA states that in these situations, an entity designated as a “terrorist party” may have its assets executed or attached in order to aid in its execution. Executive Order 13599 issued by President Barack Obama in 2012 resulted in the blocking of all Iranian government assets within U.S. jurisdiction. Then, in order to comply with default judgments against Iran, the United States passed the Threat Reduction and Syria Human Rights Act (ITRSHRA), which put Bank Markazi’s assets up for execution.

Iran filed a suit against the United States with the ICJ in 2016, alleging that by allowing private litigants to pursue lawsuits against Iran and attaching confiscated Iranian assets to satisfy judgments obtained against Iran in those actions, the United States had violated both the 1955 Treaty of Amity between the two nations and international law norms on State immunity. Iran argued that these actions constituted a violation of international law, specifically the Treaty of Amity, Economic Relations, and Consular Rights between the two nations. The ICJ was tasked with adjudicating on the legality of the U.S. government’s actions and determining the reparations owed to Iran.

In its March 2023 judgment, the ICJ acknowledged the delicate balance between state sovereignty and international obligations. The Court affirmed that the U.S. government’s freezing of Iranian assets indeed violated the Treaty of Amity. Notably, the ICJ emphasized the principle that states must respect the rights of other nations, irrespective of political tensions or conflicts.

The Court held that the freezing of assets had adversely affected Iran’s economic interests and, by extension, violated its rights under the Treaty. Although the Court ruled that it could not order the United States to unfreeze assets held by the Iranian central bank worth nearly $1.75 billion, it did mandate that the U.S. reimburse Iranian companies for the sanctions it had imposed and the other assets it had seized.

If the U.S. and Iran are unable to agree on the amount of compensation due to Iran within 24 months of the ruling, the matter, at the request of either party, will be settled by the Court. As of right now, there has been no agreement on appropriate compensation between the United States and Iran and the case remains open on the Court’s General List.

For further information, please see:

Just Security – After ICJ’s “Certain Iranian Assets” Judgement, Iran and United States Both Claim Victory – 17 April 2023.

International Court of Justice – Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment – 30 March 2023.

International Court of Justice – Press Release: The Court delivers its Judgment on the merits of the case – 30 March 2023

Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran, 1955, 8 U.S.T. 899.

UN Press – International Court of Justice Docket Reflects Legal Questions Concerning All Humanity in Every Region, President Says, as General Assembly Takes Up Report – 26 Oct 2023

South Africa Initiates Proceedings in ICJ Against Israel for Violations of the 1948 Genocide Convention in Gaza

By: Garrison Funk

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On December 29, 2023, South Africa initiated proceedings in the International Court of Justice against the state of Israel for its actions in the Gaza Strip, accusing Israel of violating the 1948 Genocide Convention due to its treatment of Palestinians throughout the conflict with Hamas. Israel has confirmed it will appear at the proceedings to fight the allegations.

 
Judges at the International Court of Justice at The Hague | Photo Courtesy of Al Jazeera, Remko De Waalepa/EFE/EPA
  

South Africa pointed to the ongoing humanitarian crisis and magnitude of death and destruction in Gaza, stating such action meets the threshold of the 1948 Convention under international law. South Africa has also requested the Court order an injunction on any further Israeli attacks in the region.

Israel’s actions in the Gaza Strip have been a part of a three-month long campaign against Hamas, the perpetrators of the October 7, 2023, terrorist attack in Israel which led to the deaths of approximately 1,200 Israelis. Israel responded by launching a series of airstrikes into Gaza, targeting suspected Hamas strongholds, prior to launching a full-scale ground invasion of the Gaza Strip on October 27, 2023. Since the start of the invasion, the Palestinian Ministry of Health in Gaza has reported the death toll to exceed 22,000.

South Africa claims Israel’s actions violate obligations set under the 1948 Genocide Convention. The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Israel has pushed diplomatic cables requesting countries to denounce the claims and pointed to its effort to increase humanitarian support in the region to refute the idea of genocide. The United States has already stated its support for Israel, calling South Africa’s submission “meritless, counterproductive, and completely without any basis in fact whatsoever.” However, pro-Palestine countries such as Turkey and Jordan have both expressed their support for South Africa’s challenge.

Israel has boycotted the ICJ and its rulings for decades, and its participation in this instance as a signee to the 1948 Genocide Convention speaks volumes of the importance of this issue to Israel. The case is set to be heard by the ICJ on January 11, 2024.

For further information, please see:

Al Jazeera – Israel promises to fight South Africa genocide accusation at ICJ – 2 Jan. 2024

Axios – Inside Israel’s plan to quash South Africa’s Gaza genocide case – 5 Jan. 2024

CSIS – Hamas’s October 7 Attack: Visualizing the Data – 19 Dec. 2023

The Guardian – Stakes high as South Africa brings claim of genocidal intent against Israel  – 4 Jan. 2024

ICJ – Application Instituting Proceedings – 29 Dec. 2023

UNN – Gaza fighting continues amid ‘apocalyptic’ conditions; Security Council to meet Friday – 7 Dec. 2023