ICJ: Genocide case against Israel must consider freedom of expression violations

ICJ: Genocide case against Israel must consider freedom of expression violations - Protection

Israeli warplanes bombed homes in the city of Rafah, south of the Gaza Strip, 9 December 2023. Photo: Anas-Mohammed /Shutterstock

In light of the genocide case initiated by South Africa against Israel before the International Court of Justice (ICJ), ARTICLE 19 urges the ICJ to carefully examine the numerous grave freedom of expression violations detailed in South Africa’s application, and their contribution to potential acts of genocide. When evaluating South Africa’s claims, the ICJ should consider in particular severe violations of international human rights and humanitarian law – such as the killings of journalists, stringent censorship measures and communication blackouts enforced by Israel – that have seriously impeded the ability to document violations of international law in Gaza, with potentially devastating effects on future accountability efforts.

On 29 December 2023, South Africa, one of the biggest critics of Israel’s military action in Gaza, instituted proceedings against Israel before the ICJ, the principal judicial organ of the United Nations. The application alleges that Israel’s conduct in relation to Palestinians in Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). 

The application also contains a request for the indication of provisional measures ordering Israel, among others, to suspend military operations in Gaza, take all reasonable measures within their power to prevent genocide and desist from the commission of any genocidal acts, stop the forced displacement of Palestinians and allow them access to food, water and humanitarian assistance.

The application highlights many of the freedom of expression violations ARTICLE 19 has documented since Hamas’s attack on Israel on 7 October 2023, and the role these violations play in hampering accountability. These include the unprecedented number of Palestinian media workers and journalists killed by the Israeli Defence Forces (IDF) and repeated internet shutdowns Israel has imposed in Gaza. They also include Israel’s continuing refusal to allow fact-finders and foreign journalists access to Gaza, with the exception of a limited number of embedded journalists whose reporting is subjected to extensive scrutiny, including prior review by the IDF.

The case against Israel is part of an increasing trend to use the ICJ as a forum for advancing accountability efforts for international crimes and human rights violations. Recent examples include cases brought against Myanmar and Russia under the Genocide Convention. 

In this context, ARTICLE 19 wishes to emphasise that it is unfortunate that third-party interventions by non-governmental organisations in contentious cases are not formally envisaged by the ICJ except in the context of advisory proceedings. Even in the latter, under the Court’s Practice Directions, third-party interventions from international non-governmental organisations, including human rights organisations, if filed on their own initiative, are not considered part of the case file at the ICJ. This is despite the ICJ’s growing importance in addressing human rights violations. We believe that a revision of the rules is warranted.

Background to South Africa’s application

South Africa filed its application to the ICJ on 29 December 2023. According to the application, Israel’s ‘acts and omissions’ are genocidal because they are committed with the specific intent to destroy a ‘substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza strip’. The application follows warnings by 36 UN human rights experts that the ‘grave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making’, calling on the international community to ‘do everything it can to immediately end the risk of genocide against the Palestinian people’.

South Africa asserts it has standing to bring the claim because the Genocide Convention contains erga omnes partes obligations, in the sense that each State party has an interest in compliance with them in any given case. This implies that each State party to the Genocide Convention can bring a case before the ICJ against another State, even if it does not have a direct connection to the alleged violations. It is noteworthy that in both its 2020 Provisional Measures Order and its 2022 Judgment on Preliminary Objections, the ICJ decided that The Gambia has standing to bring a claim against Myanmar under the Genocide Convention over atrocities against the Rohingya people in Rakhine State, without the need for any special interest on the part of The Gambia in the matter.

This is the second pending case before the ICJ relating to Israel and Palestine. In October 2023, the ICJ announced that it will hold public hearings starting in February 2024 ‘on the request for an advisory opinion in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’.

Finally, the International Criminal Court (ICC) is also investigating possible international crimes under the Rome Statute by both Hamas and Israel. Unlike the ICJ, which will make an assessment on the responsibility of Israel as a State for potential violations of the Genocide Convention, the ICC would adjudicate criminal cases against individual alleged perpetrators, such as high-ranking State officials.