Morison Siaffa Gbaya, Esq

According to a press release dated 29 December 2023, the International Court of Justice (hereinafter referred to as the “ICJ”) informs the world that “The Republic of South Africa institutes proceedings against the State of Israel and requests the Court to indicate provisional measures”.
This article aims to highlight some key differences between the two international tribunals particularly focusing on the current proceedings instituted by South Africa against Israel.

The purpose is to enhance understanding of the distinct jurisdictions of the two courts which are easily prone to confusion and misconception.
Considering that South Africa institutes legal proceedings against Israel for genocide at the ICJ, it is important to note the following:

i) The principal Statutes that will be applicable are the Statute of the ICJ, the United Nations Charter 1945, and the Convention on the Prevention and Punishment of the Crime of Genocide 1951 (Genocide Convention 1951) Therefore, the provisions of the Rome Statute of the International Criminal Court are inapplicable in this case.

ii) The principle of state responsibility applies and not the principle of individual criminal responsibility.

iii) The Genocide Convention 1951 has explicit provision referring disputes concerning the Convention’s interpretation to the ICJ. South Africa therefore refers the dispute to the ICJ pursuant to Article 36 (1) of the Statute of the ICJ as specifically provided for in Article IX of the Genocide Convention 1951 for the Court to interpret and apply the Convention and determine the responsibility of the state of Israel for genocide.

iv) The penalties imposed by the Court, where a state is found to have committed internationally
wrongful act(s), may consist of obligations imposed on the state and this may include the obligation to make reparation and comply with international obligations and responsibilities of states.

Against this backdrop, it is noteworthy to examine the distinction between the two international Courts.

One major distinction between the ICJ and the ICC is the Statutes establishing the two Courts. Article 92 of the United Nations Charter 1945 establishes the ICJ as the principal judicial organ of the United Nations. It further provides that the ICJ shall function in accordance with the annexed Statute of the Permanent Court of International Justice (Statute of the ICJ) which forms an integral part of the Charter. The ICJ is therefore constituted and functions in
accordance with the provisions of the Statute of the ICJ (See further Article 1 of the Statute of the ICJ). On the other hand, the Statute which establishes the ICC is the Rome Statute of the
International Criminal Court, pursuant to Article 1 of the Rome Statute.

Another distinction between the ICJ and the ICC is the parties that may come before the Courts or over whom the Courts exercise jurisdiction. Article 34 (1) of the Statute of the ICJ provides that only states may be parties in cases before the Court and Article 35 further provides that the Court is only open to states. The Statute of the ICJ operates the principle of state responsibility. On the other hand, Article 1 of the Rome Statute provides that the Court shall have jurisdiction over persons for the most serious crimes of international concern (genocide, crimes against humanity, war crimes, crime of aggression). Article 25 of the Rome Statute establishes the principle of individual criminal responsibility. It provides that the Court shall have jurisdiction over natural persons and that a person who commits any of the said crimes will be individually responsible and liable for punishment in accordance with the Statute.

Also, the ICJ and the ICC are distinct in terms of the cases over which the Courts have jurisdiction. Pursuant to Article 36 of the Statute of the ICJ, the ICJ has jurisdiction to resolve disputes between states. Subsection (1) provides that the jurisdiction of the Court comprises
“all cases” referred to it by the parties and “all matters specifically provided for” in the UN Charter or in treaties and conventions in force. Subsection (2) provides that the Court has jurisdiction, by states parties declaration, in “all legal disputes” concerning the interpretation of a treaty, any question of international law, to look into facts in existence to establish any
breach of an international obligation, to determine the nature and extent of the reparation to be made for the breach of an international obligation. Pursuant to Article 65, the Court also has
jurisdiction to give advisory opinion on any legal question requested by the General Assembly, Security Council, other organs of the UN and specialized agencies (see also Article 96 of the UN Charter). This is construed to mean that the ICJ has broader jurisdiction over both civil and criminal matters bordering around states. On the other hand, the ICC has specific jurisdiction over four core crimes - genocide, crimes against humanity, war crimes, crime of aggression, pursuant to Article 5 of the Rome Statute.

Further, the ICJ and the ICC are distinct in terms of the nature of penalties that may be imposed upon conviction. Article 94 (1) of the UN Charter creates obligation on each Member of the UN to comply with the decision of the ICJ in any case to which that state is a party. Where a state fails to perform the obligations imposed upon it under a judgment rendered by the Court, the UN Security Council may, at the request of the injured or aggrieved party, make recommendations or decide upon measures to be taken to give effect to the judgment. On the other hand, Article 77 of the Rome Statute provides that the Court may impose one of the following penalties on a convicted person - imprisonment not exceeding 30 years or life
imprisonment as the case may be, order of a fine or a forfeiture of proceeds, property and assets derived from that crime.

From the foregoing, it can be seen that legal proceedings can be instituted by a state for genocide before either the ICJ or the ICC, though the requirements may be different based on the distinctions highlighted above.

It is for the ICJ to determine whether the alleged acts of genocide can be attributed to the conduct of the State of Israel, of its agents, or persons acting on the State’s behalf or under its control.

Whilst the legal proceedings and the outcome may be prolonged, South Africa has requested the Court to indicate immediate provisional measures pursuant to Article 41 of the Statute of the ICJ and Articles 73, 74 and 75 of the Rules of Court to prevent the alleged situation from further deterioration.