Explainer | Will Turnover at the ICJ Impact the Genocide Trial?

By and | Feb 08, 2024
2023 Israel-Hamas War, Israel, Latest
Group photo of the current judges on the ICJ.

On January 26, the International Court of Justice (ICJ) made a preliminary ruling on South Africa’s genocide case against Israel and ordered Israel to prove it is complying with international law by taking measures to prevent a genocide in the Gaza Strip. This ruling is the first in a case that could take years before a final verdict is reached. On February 6, four of the ICJ’s fifteen judges left the court, and four new judges joined, in accordance with elections held in November by the United Nations General Assembly and the UN’s Security Council. Four of the judges who voted against Israel are no longer on the court, and the only judge who voted with Israel is now the court’s vice president. How will all of this impact South Africa’s case against Israel?

What is the International Court of Justice?

The ICJ is the principal judicial arm of the United Nations (UN), which was established in 1945 to settle legal disputes between member states and to give advice on legal questions brought forth by various organizations within the UN. 

Each judge for the ICJ serves a nine-year term, and elections for a third of the judges are held every three years. Among the judges who were part of the preliminary ruling who are no longer on the court are the former president, Judge Joan E. Donoghue from the United States, and vice president, Judge Kirill Gevorgian from Russia—making this the first time in the court’s history that Russia is not represented on the court. Judge Hilary Charlesworth of Australia was re-elected. 

According to the ICJ website, “the Court as a whole must represent the main forms of civilization and the principal legal systems of the world,” and “Once elected, a Member of the Court is a delegate neither of the government of his own country nor of that of any other State.”

The new president and vice president of the ICJ—elected by secret ballot—are Judge Nawaf Salam from Lebanon and Judge Julia Sebutinde from Uganda. Interestingly, Judge Sebutinde was the only member of the court who voted against all of the measures in South Africa’s case against Israel.

Who are the judges involved, and how are they likely to treat this case? Here’s a look at some of the most interesting judges to watch as the legal battle unfolds.

Who are some of the judges on the International Court of Justice?

ICJ President and Judge Nawaf Salam

ICJ President and Judge Nawaf Salam

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Lebanese Judge Nawaf Salam, born in 1953, was elected by his fellow judges as president of the ICJ. He has sat on the ICJ since 2018, prior to which he was Lebanon’s ambassador to the UN (2007 to 2017) and also taught contemporary history at the American University of Beirut (2005 to 2007). Salam’s name has been floated for the Lebanese prime minister in recent years, however his nomination was blocked by Hezbollah—who claimed that Salam had too many relations with the United States. Salam has a history of opposing Israeli actions. On June 5, 2015—the anniversary of the beginning of the 1967 Six-Day War—Salam wrote on X: “Unhappy birthday to you. 48 years of Israeli occupation of Gaza and the West Bank.” Salam supported all six measures taken against Israel.

Vice President of the ICJ and Judge Julia Sebutinde

Vice President of the ICJ and Judge Julia Sebutinde

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Ugandan Judge Sebutinde, the first African woman to sit on the ICJ, is the only judge to oppose all proposed measures against Israel. She instead attributed Israel’s actions as caused “Not by genocidal intent, but rather by several factors, including the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.” In terms of Israeli politician’s genocidal comments, Sebuntide said, “South Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such.” She also stated that “It would be unrealistic to put limitations upon one of the belligerent parties but not the other,” when Hamas is not a participating party in this case. 

Since 2012, she has presided over three additional genocide cases, including the 2022 case between Russia and Ukraine. In two she voted in favor of passing provisional measures. The Ugandan government has distanced itself from Sebutinde’s ruling in the current Israel case, issuing a statement that Sebutinde’s position is her “own individual and independent opinion, and does not in any way reflect the position of the government of the Republic of Uganda.” 

On the other hand, Sebutinde has been revered by Israel supporters, and her ruling has been used by Jewish media to assert their belief that South Africa’s case against Israel does not meet the threshold to issue provisional measures. The American Jewish Committee referenced Sebutinde’s ruling to make their argument on the matter, saying, “The Court issues ‘provisional measures’ in circumstances where it believes that it is ‘plausible’—not likely, merely possible—that the rights of a party in a conflict are at risk of ‘irreparable harm’ by the other party. Two of the Court’s judges issued separate opinions in today’s decision asserting that South Africa had not met even this low threshold, as it had shown no evidence that Israel’s actions in Gaza reflect genocidal intent.”

ICJ Judge Xue Hanqin

Judge Xue Hanqin

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Judge Xue Hanqin became the first female judge of Chinese nationality to sit on the ICJ’s bench and she also served as the first female vice president of the ICJ from 2018 to 2021. Judge Hanqin is the first person ever to represent the People’s Republic of China in oral argument before the ICJ, which was in regards to Kosovo’s case for independence. This signified a possible shift in China’s attitude toward participating in international law. She is no longer affiliated with the Chinese government, though she has held several high diplomatic positions on China’s behalf such as serving as China’s ambassador to the Association of Southeast Asians.

Hanqin supported all six measures against Israel and said in her concurring opinion, “The situation in Gaza remains horrendous, catastrophic and devastating. No ceasefire is in sight.” Also, she said that it was the United Nations’ responsibility to Palestine and the international community to ensure Palestinians are protected under international law. In 2022, she was only one of two judges who voted against a similar motion in Ukraine’s case against Russia under the Genocide Convention. 

Ad hoc ICJ Judge Aharon Barak

Aharon Barak

A.M.T. Award (CC BY-SA 3.0)

To read a full profile of Barak commissioned by Moment in 2010, click here.

Aharon Barak is the former chief justice of the Supreme Court of Israel and a Holocaust survivor. His was a special appointment to the ICJ by Israel, as the ICJ allows a judge to be temporarily appointed by the states involved. The Genocide Convention was adopted by the United Nations in 1948 to ensure a genocide similar to the one committed against the Jewish people during World War II never happened again. In his opinion, Barak said that as a Holocaust survivor, “genocide is a shadow over the history of the Jewish people, and it is intertwined with my own personal experience. The idea that Israel is now accused of committing genocide is very hard for me personally.” 

Barak dissented on four out of six provisional measures that were approved by the ICJ in a 15-2 vote. Unlike Judge Sebutinde, however, Barak voted with the majority on two measures that ordered Israel to prevent and punish any acts of genocide committed in Gaza and to  immediately allow for humanitarian aid to get into Gaza. Barak said his reasoning for voting in favor of the latter measure was that he was “guided by my deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable.” 

As a member of the Israeli Supreme Court, Barak introduced a controversial decision that dissents from his recent rulings. As president of the Supreme Court in 1999, Barak upheld a prohibition of torture, however he created a loophole that allowed torture in dire situations, such as those of a “ticking timebomb.” This ruling has increased the use of torture by the IDF, and became a widespread pratice against Palestinian political prisoners. 

ICJ Judge George Nolte

Judge George Nolte

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Judge George Nolte from Bonn, Germany, has been a member of the ICJ since 2021. The German government has supported Israel as a way of making amends with its history of Nazism and the Holocaust. Like American Judge Donoghue, Nolte voted in favor of all the provisional measures even though he comes from a country that maintains strong alliances with Israel. Interestingly, in his opinion he expressed that while he doesn’t believe Israel is carrying out its military operation in Gaza with genocidal intent, he voted in favor of the Court’s measures because he is concerned that the statements made by Israeli officials that were presented in court by South Africa “give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention.” 

Judge Dire Tladi

Judge Dire Tladi

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

On February 6, 2024, Judge Dire Tladi was appointed as the first South African member of the ICJ. Tladi held various positions as a member of the UN International Law Commission from 2012-2022. Some of these positions included general rapporteur and chair of the commission. At the time of his appointment to the ICJ, Tladi was a law professor at the University of Pretoria in South Africa. In 2020, he joined 271 international law scholars in signing a letter that condemned Israel’s plan to annex parts of the West Bank.

Now that Tladi is a permanent member of the ICJ, ad hoc Judge Dikgang Moseneke, who presided over the recent proceedings on South Africa’s behalf, will step down because parties who have a judge of their nationality sitting on the court are not allowed to appoint ad hoc judges. According to the ICJ’s website, the right of a judge to sit on a case in which his country is a party has not been seriously debated by legal scholars, but historically, judges have often voted against their country in cases brought before the ICJ.

This story is part of a package on the International Court of Justice and the ongoing genocide case brought there by South Africa against Israel. Other stories in the package are:

Opening Image: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ. 

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