ICJ & ICC: What’s the difference?


Both of our World Courts have been in the press lately with respect to Israel’s ongoing war against Gazans; it’s very easy to confuse them. A few similarities are that they were both established by the UN and both are based in The Hague, Netherlands. In most respects, they are quite different. Much is written about these courts and I have no expertise in International Law. This and my next week’s article constitute a very surface-level overview, offering a snapshot of each court through the lens of its actions re Israel, Gaza and their leaders.

International Court of Justice

The first truly World Court is the International Court of Justice (ICJ), established in 1945 by the UN Charter, for the settlement of disputes between States. All 193 UN members are automatically parties to the Court’s Statute, by reason of having joined the UN. Submission to the jurisdiction of the ICJ though, is not compulsory for UN member States. The US withdrew from compulsory jurisdiction of the Court in 1986. Other countries who have not signed the declaration recognizing the jurisdiction of the Court include: China, Iraq, Israel, Libya, Qatar and Yemen.

Focus of the ICJ is on the international obligations and responsibilities of States.

In January, 2024, The ICJ heard South Africa’s preliminary case against Israel for genocide. The ICJ determined it had jurisdiction to hear the case – a necessary first step. If the Court has jurisdiction, the Petitioners in the case must then meet a threshold with their evidence to have the case go forward. That is, they have to convince the Court that they have a “plausible case” that the State in question, in this case, Israel, committed or is committing the offense claimed, in this case, genocide, before the Court can continue. This threshold, the Court determined, was met by South Africa. Now the Court will accept briefs (arguments) from any and all countries who are parties to the ICJ, who apply to join the case. A number of States have already applied to join this legal action. Individual State’s briefs can be either for or against the claim of genocide. So far all the countries joining the action will be arguing on the side of South Africa.

You can go online to hear the arguments made by South Africa’s legal team before the ICJ in January. They are powerful and compelling. The Irish lawyer on the South Africa team, Blinne Ni Granleigh, indicated in her argument that Gaza is the scene of “the highest levels of food insecurity ever recorded. Famine is around the corner”. She was not exaggerating; this was in January and the situation has only deteriorated since then. Both the New York Times and the Washington Post reported on June 19th that as many as 500,000 Gazan residents are facing “imminent starvation because of a lack of food”. (Seymour Hersh, 26 June, 2024.) Starvation as a weapon of war is a form of genocide, and we are seeing it before our very eyes in Gaza.

It may be several years before the case is actually ready to be tried by the Court. That’s why it has issued two sets of Provisional Measures Orders, which are orders that can be made to

prevent “serious and irreversible damage” from being done before a case actually gets to trial. So far, these measures have been ignored by Israel. (I outlined the terms of the 1st Provisional Measures Order in Respecting International Law, Grapevine, 1st Feb.2024.)

The ICJ can also issue Advisory Opinions if requested by the UN General Assembly or Security Council. In 2004, for example, the ICJ ruled that the Israeli Separation (Apartheid) Wall in the West Bank, occupied Palestinian territories, violated international law and should be dismantled. Nonetheless, Israel’s construction of the Wall continued unabated and its dark presence in the West Bank remains, snaking its way through Palestinian lands, dividing orchards, villages, families.

We as Canadians can let our leaders know we respect our World Court, its Advisory Opinions and its Orders. In its most recent (24th May) 2nd Provisional Measures Order in South Africa vs Israel, the Court unanimously ordered “unhindered access at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary”. UN-OCHA reports that the number of aid trucks Israel allowed into Gaza actually decreased in June, to an average of 71/day (from 500 /day before this onslaught began 9 months ago.)

If billions of people worldwide have called for a ceasefire in Gaza (World Beyond War Peacewave panel June 22, 2024), why are our leaders not listening? We need to speak more clearly and firmly to them, to make our demands heard, and hold them to account. We need to step up our engagement. We are all diminished if we look away from this immense human tragedy, where ample food waits at border crossings in trucks being attacked by Israeli civilians, who are utterly trapped in a vengeance mindset. The psychic burden and trauma of this ongoing violence is unimaginable for Palestinians; for Israelis it is soul-destroying; we who help arm and support Israel are complicit. We have the power to stop this genocidal violence. Let’s use it.

(Next week: International Criminal Court)


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