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 ruling, the ICJ condemned Israel’s conduct as blatantly violating the Convention on the Prevention and Punishment of the Crime of Genocide (Convention) and demanded prompt action to prevent further atrocities. The Court emphasized that all states are obligated by international law and jus cogens to prevent genocide and hold perpetrators accountable for their actions under international law.

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.

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 Issues Preliminary Ruling on Jurisdiction to Hear Ukraine Genocide Claims

By: Johannah Brown

 Impunity Watch News Staff Writer

THE HAGUE, The Netherlands – On February 2, 2024, the International Court of Justice (ICJ) issued a preliminary ruling in the Ukraine vs. Russian Federation regarding the interpretation, application, and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The Court ruled that it has jurisdiction to rule on whether or not Ukraine has committed genocide in the Donbas but ruled against Ukraine’s claim that Russia violated the terms of the Genocide Convention.  

 
International Court of Justice | Photo courtesy of Jurist, Wikimedia Commons.
  

Ukraine’s application to the ICJ, filed on February 26, 2022, stemmed directly from Russia’s actions in the eastern regions of Ukraine. Armed conflict began there in 2014 between Ukrainian forces and entities linked to Russia that refer to themselves as the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR). On February 21, 2022, Vladimir Putin formally recognized the regions as independent states, justifying the move on claims that Ukraine was committing genocide. The following day Russia signed treaties with the DPR and LPR and two days later announced it would conduct a “special military operation” with the purpose of protecting the population from genocide.

In its filing, Ukraine, joined by 33 states as intervenors, accused Russia of violating the Article I and IV of the Genocide Convention by wrongly justifying its recognition of DPR and LPR and subsequent invasion on claims that Ukraine was committing genocide in the region.  In order to prove that Russia has acted in bad faith, Ukraine had also asked the court to determine if Ukraine has committed genocide.  

The Court first addressed the request for a determination by the Court that Ukraine did not commit genocide. Russia objected on several procedural grounds and the court rejected all of them.  Citing prior jurisprudence, it held that the ICJ had the ability to issue a declaratory judgement “to ensure recognition of a situation at law, once and for all and with binding force as between the parties, so that the legal position thus established cannot again be called in question…”

In addressing whether Russia violated Article I and IV of the Genocide Convention, the Court ruled that abusively invoking the Genocide Convention is not a violation of the obligations therein. The Court held that the actions taken by Russia based on the alleged abusive use of the Convention (falsely claiming prevention of genocide to justify actions) do not fall under the scope or ratione materia of the Convention but would be, if proven, a matter of violation of international law and not governed by the Genocide Convention. 

The case will go forward on the issue of whether or not Ukraine has committed genocide.

For further information, please see:

International Court of Justice – Judgement Ukraine v. Russian Federation in Allegations of Genocide – 02 Feb. 2024.

International Court of Justice – Summary of the Judgement of Ukraine v. Russian Federation in Allegations of Genocide – 02 Feb. 2024.

Jurist – ICJ Rules that it has jurisdiction over some of Ukraine’s genocide case against Russia – 03 Feb. 2024.

Lawfare – ICJ issues Judgment on Preliminary Objections in Ukraine v. Russia – 06 Feb. 2024.

United Nations – Convention on the Prevention and Punishment of the Crime of Genocide – 1951.

 

 

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 Rules Failure of Greece to Investigate Tourist Rape Allegations Constitutes Violation of the European Convention of Human Rights

By: Molly Osinoff

Impunity Watch News Staff Writer

GREECE – On February 13, 2023, the European Court of Human Rights (ECHR) held that Greece violated Article 3 (lack of investigation) and of Article 8 (right to respect for private and family life) of the European Convention of Human Rights in the case of X. v. Greece.

 
Greek Prime Minister Kyriakos Mitsotakis addresses lawmakers during a parliamentary session regarding abuse in arts and sports. | Photo Courtesy of REUTERS.
  

The plaintiff in X v. Greece is a British national, who alleges she was raped by a hotel bartender while she was vacationing in Greece with her mother in 2019. The plaintiff, who was eighteen at the time of the attack, lodged a criminal complaint the same day. The plaintiff claimed she was given no information about the required medical examinations or judicial procedure, authorities did not arrange any separation between her and the accused, and she had to sign documents in Greek without any translation.

Throughout the criminal proceedings, the plaintiff claims she was not provided with any information and could not obtain information on the case from the British embassy. When the plaintiff emailed the prosecutor to request records and updates, she was told she was not a civil party to the case because she did not testify before the court or appoint a lawyer to represent her. The plaintiff claimed that the Greek government failed to conduct an effective investigation into her allegations of rape, breached their duty to provide effective legal protection, and failed to protect her as a victim of gender-based violence.

Without expressing an opinion as to the accused’s guilt, the ECHR found that the Greek investigative and judicial authorities’ failure to adequately respond to the applicant’s allegations violated the State’s duties under the European Convention of Human Rights. Specifically, the Court found that Greece violated Articles 3 and 8 Convention, which require states to ensure that individuals within their jurisdiction are not subjected to ill-treatment and that protection of an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation, respectively.

For further information, please see:

ECHR – Judgment for X. v. Greece – 13 Feb. 2024.

European Institute for Gender Equality  – Gender Equality Index 2020 Greece.

REUTERS – Greece to Toughen Laws on Sex Crimes After Wave of Abuse Allegations – 25 Feb. 2021.

IACHR Orders Release of Nicaraguan Indigenous Leaders

By: Carlos Dominguez Scheid

Impunity Watch Staff Writer

SAN JOSE, Costa Rica – The Inter-American Court of Human Rights (IACHR) mandated on February 1, 2024, that Nicaragua immediately release Brooklyn Rivera Bryan and Nancy Elizabeth Henríquez James, indigenous political figures and congresspersons from the Yapti Tasba Masraka Nanih Aslatakanka (YATAMA) party, who have been detained since late 2023.

 
Nancy Henríquez (left) and Brooklyn Rivera (right). | Photo courtesy of primeraorden.com.
  

The resolution comes amid serious concerns about Henríquez and Rivera’s detention conditions and the wider suppression of political opposition within the country. This decision came in response to a petition from the Inter-American Commission on Human Rights (IACHR), advocating for the establishment of precautionary steps to safeguard Brooklyn Rivera and Henríquez, who both serve in the Nicaraguan National Assembly, affiliated with the YATAMA, an indigenous-focused political organization. They are both identified as facing a sharp and actualized threat of severe and lasting harm to their personal rights.

The Court’s decision underscores the urgent need to protect the rights and safety of Rivera and Henríquez, who have been targeted in what appears to be a sustained effort to quell dissent against Daniel Ortega’s regime. Despite their status as elected officials representing indigenous communities, their involvement in opposition activities has led to their arbitrary detention and the stripping of their parliamentary seats, a move that has drawn international condemnation. Rivera, a prominent Miskitu leader and key figure in YATAMA, vanished after a raid on his home in September 2023, with no legal warrants presented during his arrest. Similarly, Henríquez’s whereabouts became a mystery following her detention in October 2023, with reports suggesting she is being held in isolation under dire conditions. 

The Court’s resolution also extends protective measures to Rivera and Henríquez’s families, acknowledging the threats and reprisals they have faced, including those that have been forced into exile. The resolution aligns with the Court’s historical stance on safeguarding political freedoms and human rights, reflecting deep concerns over Nicaragua’s political climate, particularly the persecution of opposition parties and the erosion of democratic institutions since 2018. 

Nicaragua, having ignored the Court’s previous orders and not communicated since April 11, 2022, has been declared in permanent contempt. The Court’s latest resolution not only demands the immediate and unconditional release of the detained leaders but also insists on the restoration of their rights to participate in political activities as regional deputies, marking a critical stance against the suppression of political dissent in Nicaragua. 

This ruling highlights the ongoing crisis in Nicaragua, characterized by the government’s harsh response to protests and opposition, leading to widespread human rights abuses. The Court’s intervention underscores the international community’s commitment to upholding human rights and the rule of law, even as Nicaragua faces deepening isolation due to its actions against political opponents and indigenous leaders.

For further information, please see:

AGENCIA EFE – CorteIDH ordena liberar a dirigentes de Yatama – 15 Feb. 2024

CorteIDH ordena a Nicaragua liberar a dos líderes políticos indígenas opositores – 14 Feb. 2014

IACHR – MEDIDAS PROVISIONALES – 1 Feb. 2024

IACHR – IACHR Requests that IA Court Grant Provisional Measures in Favor of Indigenous YATAMA Representatives in Nicaragua – 19 Dec. 2023

Primerordencom – CorteIDH ordena a dictadura liberar de inmediato a Brooklyn Rivera y Nancy Henríquez – 15 Feb. 2024