WeekendTimes.com.au



Men's Weekly

.

Why are the ICJ and ICC cases on Israel and Gaza taking so long?

  • Written by Melanie O'Brien, Associate Professor of International Law, The University of Western Australia

In September this year, a UN-backed independent commission of inquiry released a report concluding[1] Israel is committing genocide in Gaza. The report said[2]:

Israeli authorities deliberately inflicted conditions of life on the Palestinians in Gaza calculated to destroy, in whole or in part, the Palestinians in Gaza, which is an underlying act of genocide.

This report followed two years[3] of investigation, but it’s not the only investigation underway.

There are two international courts with current proceedings related to the Israel-Palestine conflict.

The first, a case before the International Court of Justice (ICJ), was brought against Israel by South Africa[4] in late 2023.

In the second, International Criminal Court (ICC) prosecutors have been investigating potential crimes allegedly committed by anyone, whether Israeli or Palestinian, on the territory of Palestine[5] since March 2021 – even before Hamas’ October 7 2023 attack.

So, if the UN-backed commission of inquiry could put together their report in two years, why are the cases in the ICJ and ICC taking so long? And where are these proceedings up to now?

The International Court of Justice case

A case before the ICJ often takes many years.

This is because the cases often involve multiple stages, including:

  • provisional measures (the ICJ version of an injunction, which is an interim court order to do or stop doing something)

  • preliminary objections (where a state may object to the ICJ’s jurisdiction in the case)

  • the merits case (where the court decides whether or not a country has violated international law).

Each stage involves the parties to the case making written submissions and undertaking oral proceedings. The court also makes decisions at each stage. States must be afforded due process throughout the proceedings.

Another reason for the lengthy period of cases is that states often ask for extensions for their written submissions.

In the South Africa v Israel case (which focused on the question of whether Israel is in breach of its obligation to prevent and punish genocide as per the Genocide Convention), Israel requested and was granted[6] a six-month extension to file their written submission, which is now not due until January 2026.

This means we may not expect a hearing on the merits of the case until possibly even 2027.

A Palestinian mother flees with her children following an Israeli airstrike during an October Israeli military operation in Gaza.
A Palestinian mother flees with her children following an Israeli airstrike during an October Israeli military operation in Gaza. EPA/MOHAMMED SABER[7]

The International Criminal Court case

Cases before the ICC, which are brought against individuals, not states, are not like ordinary criminal cases in a domestic court.

These cases relate to not just one crime, but many crimes. Sometimes, perpetrators are charged with multiple offences.

As an example, Dominic Ongwen – a high-ranking member of the Lord’s Resistance Army operating in Uganda – was convicted of 61 counts of war crimes and crimes against humanity[8], each of which generally involved multiple victims.

This means the ICC has to collect and present a huge amount of evidence. This can include documents, photographs, and victim and witness testimony. It can take a long time, even years, to collect all this evidence.

Once the case goes to court, it can take many months of hearings, as all the evidence is presented.

The case may also be delayed if either the prosecution or defence asks for an extension at any point in the proceedings.

All of these elements are important to ensure any trial before the ICC is fair and carried out with due process.

In the case relating to Palestine, the ICC prosecutor moved quite quickly with investigations following Hamas’ October 7 2023 attack.

Arrest warrants were issued[9] for Israeli Prime Minister Benjamin Netanyahu and then-Defence Minister Yoav Gallant in November 2024, with charges of crimes against humanity (including murder and persecution) and the war crime of starvation.

At the same time, arrest warrants were also issued[10] for several Hamas leaders for war crimes and crimes against humanity relating to the October 7 atrocities. Only one of those leaders, Mohammed Diab Ibrahim Al-Masri (Deif), remains likely alive, however.

The ICC now stands ready, willing and able to start a prosecution case against Netanyahu, Gallant or Hamas leaders such as Deif. All it needs is to have them in custody in The Hague.

However, the ICC has no police force. It relies on member states to the ICC to arrest and surrender wanted fugitives.

Interpol “Red Notices[11]” may be issued for people wanted by the ICC[12]. Recently, for instance, the Philippines arrested and surrendered[13] its former president, Rodrigo Duterte, to the ICC, where he is now on trial for crimes against humanity[14].

Unfortunately, states seem less willing to arrest and surrender the Israeli head of state. This creates a challenge for the ICC in its ability to proceed with prosecutions, but also attracts criticism of double standards of states[15].

Netanyahu has visited Hungary, an ICC member state, but was not arrested[16]. Hungary has since announced it intends to withdraw[17] from the ICC.

Upholding international law

So, it’s clear the ICC and the ICJ already have legal proceedings well underway relating to crimes in Gaza. These international courts are ready to hear legal arguments and make decisions on state responsibility or individual criminal liability for crimes committed in Palestine or against Palestinians.

What we need, however, is commitment from states to uphold international law.

Countries must comply with their international law obligations and cooperate with international courts, including by arresting and surrendering wanted fugitives[18] to the International Criminal Court.

This is what will help speed the slow-turning wheels of justice.

References

  1. ^ a report concluding (www.ohchr.org)
  2. ^ said (docs.un.org)
  3. ^ two years (www.abc.net.au)
  4. ^ was brought against Israel by South Africa (www.icj-cij.org)
  5. ^ Palestine (www.icc-cpi.int)
  6. ^ requested and was granted (www.icj-cij.org)
  7. ^ EPA/MOHAMMED SABER (photos.aap.com.au)
  8. ^ was convicted of 61 counts of war crimes and crimes against humanity (www.icc-cpi.int)
  9. ^ Arrest warrants were issued (www.icc-cpi.int)
  10. ^ arrest warrants were also issued (www.icc-cpi.int)
  11. ^ Red Notices (www.interpol.int)
  12. ^ people wanted by the ICC (www.interpol.int)
  13. ^ arrested and surrendered (opiniojuris.org)
  14. ^ on trial for crimes against humanity (www.icc-cpi.int)
  15. ^ criticism of double standards of states (opiniojuris.org)
  16. ^ but was not arrested (opiniojuris.org)
  17. ^ intends to withdraw (www.abc.net.au)
  18. ^ arresting and surrendering wanted fugitives (www.ejiltalk.org)

Authors: Melanie O'Brien, Associate Professor of International Law, The University of Western Australia

Read more https://theconversation.com/why-are-the-icj-and-icc-cases-on-israel-and-gaza-taking-so-long-265674

The Weekend Times Magazine

Discover the Benefits of Lifestyle Awnings for Your Home

Image by evening_tao on Freepik Adding shade and style to your outdoor space is easier than ever with Lifestyle Awnings. Whether you want to enjoy your backyard comfortably, protect your...

Could You Furnish and Equip a Whole House with IKEA Products?

IKEA has long been known as the global giant of affordable, ready-to-assemble furniture. From minimalist Scandinavian sofas to clever kitchen gadgets, the Swedish retailer has built its reputation on making...

Farmers Calling on Aussies and Restaurateurs to Help Save the Sydney Rock Oyster

The future of Sydney Rock Oyster farming in NSW is under extreme threat and a group of NSW farmers are urging restaurateurs and chefs to support the native Australian Sydney...

Aussie Road Trip – Everything You Need to Know for Your Next Adventure

Going on a road trip in Australia is the best way to explore the major tourist attraction sites, hidden gems and the beautiful landscapes that span for thousands of miles...

Aussies get budget savvy with surge in deferred payment of bills

Deferit co-founders Mat Blas and Jonty Hirsowitz Deferit, a payment platform exclusively focused on helping people pay their bills on time, has released new data on the huge uptake of its...

Parrtjima opens in Australia’s Red Centre

Free event in Alice Springs will lift spirits every night until 20 September Parrtjima – A Festival in Light launched last night with an incredible display of lighting installations and interactive...

Trading With Quantum AI: A How-To Guide

Quantum AI can be used in any country where retail CFD trading is legal. The site does warn that registration spots are limited, so your first try might not be successful. If...

Creating Dream Backyards with Professional Pool Builders Sydney

In a city like Sydney, where outdoor living is central to daily life, having a well-designed pool can transform a property into a private retreat. This is why homeowners turn...

Ensuring a consistent Australian foreign policy - Scott Morrison

The Morrison Government will introduce new legislation to ensure the arrangements states, territories, councils and universities have with foreign governments are consistent with Australian foreign policy.   The Commonwealth Government has exclusive...