Weekend Times


The Times

Business News

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

All the Things You Need to Know Before Flying to Cairns

Cairns is the gateway to Queensland, offering a tropical climate and a relaxing atmosphere, making it an ideal destination for outdoor activities. The city has iconic destinations, charming cafes, lively...

Lifestyle Awnings – Bringing Style and Comfort to Melbourne Outdoor Living

Melbourne homeowners are always looking for ways to make better use of their outdoor areas. Whether it's entertaining, relaxing, or adding value to the property, installing Lifestyle Awnings is one of...

The official ANZ launch of EPOS

Sydney - Following a panel discussion with Australian businessman Mark Bouris and panellists Alyce Tran, Scott Bidmead and Jahan Sheikh from Microsoft EPOS was launched. Attendees experienced...

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...

Smart Lock: The Future of Home Security and Convenience

A smart lock has revolutionized the way people think about home security. Moving beyond traditional keys and mechanical locks, smart locks bring technology and convenience together, offering homeowners and businesses a new...

What to do in Canada during your holiday?

Canada has over 1.6 million square kilometers of protected natural land offering a world-class national park system. The country is one of the first in the world to establish a...

Camplify Research Reveals 2020 is the Year of the Local Road Trip

Camplify has today released a research report highlighting that 2020 is no doubt the year of the local road trip. With COVID-19 restricting international travel, Australians have hit the roads...

Does Sydney Australia Have a Good Nightlife Scene?

In the last several years, Sydney's nightlife has changed dramatically. The New South Wales state government adopted Draconian lockout regulations in 2014, forcing city center venues to close their doors...

5 Bars You Cannot Miss While Visiting Sydney

One of the best things about visiting Sydney is the nightlife. While there are a lot of touristic gems for visitors to see throughout the day, Sydney is also widely...

hacklink hack forum hacklink film izle hacklink testpadişahbetgalabetNon GAMSTOP Casinosbeste online casinonon GamStop casinos UKNon GamStop Sitesjojobetonline casinos australiaonline casinosonline casino australiacasinos not on GamStopcasibomjojobetjojobetzlybraryjojobetcasibomcasibom