Why Has South Africa Brought Israel To The ICJ Rather Than The ICC?

Though the hearing in the ICJ is likely to take years to finally resolve, South Africa has, nevertheless, called for the world court to convene in the next few days to issue “provisional measures” which are essentially calling for a ceasefire.

By Mohamed Hanipa Maidin, Green Left

South Africa instituted proceedings against Israel before the International Court of Justice (ICJ) on December 29, on the grounds that Israel has allegedly violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.

In instituting its action against Israel before the ICJ, South Africa seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which South Africa and Israel are parties.

Apparently Article IX of the Genocide Convention confers jurisdiction on the ICJ to hear “Disputes between the Contracting Parties [in this case Israel and South Africa] relating to the interpretation, application or fulfillment of the present [Genocide] Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.”

The ICJ previously ruled that Gambia could bring a genocide claim against Myanmar — both are the contracting parties under the Genocide Convention. In its landmark ruling, the ICJ also invoked erga omnes obligation and erga omnes partes right (obligations and rights towards all) under the Genocide Convention to protect the Rohingyas against genocide.