Equality of Arms: Due Process in South Africa v. Israel

Much of the focus of recent news in international law has been on the advisory opinion issued by the International Court of Justice (ICJ) on July 19, concerning the legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory (the Advisory Opinion). In it, the majority found, inter alia, that Israel’s continued presence in the Occupied Palestinian Territory was unlawful and that it must bring to an end its unlawful presence as soon as possible and make reparations for the damage caused. Despite making it clear that Israel’s current military operation in Gaza after Oct. 7 is outside the scope of the opinion, and despite the fact that the opinion is non-binding, it is nevertheless likely to shed more negative light on Israel’s actions in Gaza and beyond. I have recently written about the ICJ’s flawed approach to fact-finding, and how this approach was likely to impact its advisory opinion, which it indeed appears to have done. This post, however, concerns a different case involving Israel before the ICJ, namely the contentious proceedings brought by South Africa on allegations of genocide. Rather than focusing on fact-finding, this post considers whether the court may have violated Israel’s due process rights during the second provisional measures hearing in that case in May 2024.

On May 10, South Africa filed its fourth request for the indication of additional provisional measures and the modification of provisional measures previously prescribed by the ICJ in the case of South Africa v. Israel. The case was brought before the court in December 2023 and concerns allegations that Israel is committing genocide against the Palestinian population in the Gaza Strip. In its fourth provisional measures request, South Africa asked the court to “consider this Request without a hearing” or, “if the Court considers that it cannot accede to South Africa’s request for an Order without a hearing,” to urgently schedule an oral hearing “on or before 17 May 2024.”

What followed were a number of procedural peculiarities—including short and unequal time allocations and an apparent disregard for Israel’s lack of legal representation. The court’s abnormal actions beg the question: Did any of these peculiarities amount to a breach of due process—particularly in regard to the principle of judicial equality and the right to be heard? And, if so, what impact might such a breach have?

According to the Israeli agent’s presentation on May 17, the court had apparently invited Israel to submit its observations on South Africa’s request in writing by May 15. Israel was reportedly preparing to do so, when the court “suddenly announced” on May 12 “that it would hold an oral hearing instead” and that this hearing would start on May 16, four days later. According to the agent, Israel then communicated to the court that the change in schedule given on such short notice meant that Israel would not be able to be represented by its legal counsel, some of whom were apparently “shipborne,” during the hearing. Israel then reportedly requested that the court reschedule the hearing to the following week, which was rejected.

The communications between the court and the parties to the hearing are not public, so it is almost impossible to know what Israel said to the court, what the court said to Israel, or what reasons the court may have had for rejecting Israel’s rescheduling request if such a request was indeed made.

Some information, however, is publicly available about the court’s proceedings. On May 14, the court issued a press release confirming the timing of the presentations. South Africa would present from 3 p.m. to 5 p.m. on May 16. Israel would present 17 hours later, from 10 a.m. to 12 p.m. on May 17.

It is also public knowledge that South Africa was represented at the hearing by a team of 26 individuals (at least 11 of them, external legal counsel) and Israel with a team of three (no external legal counsel).

When Judge Georg Nolte asked Israel’s co-agent to provide further information about the existing humanitarian conditions in the designated evacuation zones, Israel was given 30 hours to do so, and South Africa was given a further 42 hours to provide comments on Israel’s response.

After Israel’s presentation concluded at 12 p.m. on May 17, the court had “no other business before it” that day, as confirmed by the court’s president at the end of the hearing.

The ICJ then issued a new order after the hearing, in which it ordered Israel to “[i]mmediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part,” “[m]aintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance,” and “[t]ake effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.”

The notions of judicial equality and the accompanying right to be heard are fundamental tenets of due process, a general principle of law, applicable to the ICJ by virtue of Article 38(c) of its statute. The concept of ensuring strict equality between the parties is also fundamental to the establishment of the ICJ and has been repeated time and again in its case law and applicable rules (see generally, the ICJ Handbook for examples). The principle says that “[a]djudicators must be vigilant to maintain equality between the litigants over the entire span of the adjudicatory process because it is a key component of a fair hearing” (see “General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes”). This includes providing each party with a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-a-vis its opponent. U.S. courts have described it as the ability for the parties to be heard “at a meaningful time and in a meaningful manner.” Also, in arbitration proceedings, the principle of equality of the parties has been described as “closely related to the right to be heard” and that “[t]his right of parties to present their case has been recognized as part of that ‘set of minimal standards’ considered fundamental for a fair hearing” (see, for example, Malicorp Limited v. The Arab Republic of Egypt).

When applying this concept to the facts relevant to this provisional measures hearing, two potential issues arise. First, did Israel’s lack of legal representation affect its right to be heard? According to Israel, the short notice given for the hearing meant that its legal counsel would be unable to attend. It is arguable that the court’s decision to nevertheless go ahead with the hearing at the scheduled time—despite Israel’s inability to have its counsel present—may have prevented Israel from having an equal opportunity to present its case, as compared to its opponent.

In this regard, the practice of international arbitral tribunals may provide a helpful analogy. In BIVAC v. Paraguay, Paraguay requested a postponement of a hearing on jurisdiction, among other things, because it had retained legal counsel just days before the hearing. The tribunal rejected Paraguay’s request, noting that the requirements of due process had been complied with because “both parties had been fully involved in the process, including the setting of the timetable and agenda for the hearing,” and the decision was motivated by a need to strike a balance between the constraints of the parties and the efficient administration of justice. Here, Israel complains that it was taken by surprise by the court’s sudden scheduling of an oral hearing and was not involved in the setting of the timetable. It would be interesting to see what decision the arbitral tribunal would have arrived at in BIVAC had Paraguay not been fully involved in the setting of the timetable and agenda.

Arbitral awards have also been annulled for violations of equal treatment and the right to be heard. For example, in Pey Casado I v. Chile, the arbitral award was partially annulled because it was found that Chile had not been afforded an adequate opportunity, or adequate time, to present its case on damages. However, it should be noted that the annulment of this decision and other International Centre for Settlement of Investment Disputes (ICSID) decisions have followed a very specific procedure set out in Article 52(1)(d) of the ICSID Convention (explained below). No such procedure exists in relation to the ICJ, the decisions of which are rendered without appeal.

To be absolutely clear, nothing prevents a party from appearing without their legal counsel before the ICJ if they choose to do so. Thus, in Mexico v. Ecuador, Mexico also appeared in a provisional measures hearing without external legal counsel, presumably of its own volition. But there is quite a difference between choosing to appear without legal counsel and being forced to appear without legal counsel due to their unavailability on short notice.

The second issue that arises is that of timing. The difference in time allocated to the parties to present their arguments does give rise to queries about equal treatment. First, Israel was given only 17 hours between the end of South Africa’s presentation on May 16 and the start of its own the next day. If the court truly had “no other business” in the afternoon of May 17, as the president indicated at the end of the hearing, it could presumably have given Israel at least a full 24 hours to respond to South Africa’s case. It is difficult to see how the court could have justified the short preparation time provided to Israel under the circumstances. Second, Israel was given 30 hours to respond to Judge Nolte’s question while South Africa was given 42 hours to respond to Israel’s response. Why was South Africa given more time to respond to the response than Israel, the party of whom the question was asked? Again, it is difficult to see how the court justified this decision.

Questions about equal time allocation have also arisen in previous international arbitration cases. For example, in Glamis Gold v. United States of America, the tribunal explained that its primary guiding consideration in regard to time allocations during a hearing is “that the parties be treated equally and that one way that this equality is achieved is through an equal allocation of time to each side during the hearing.” While the time allocated for the presentations of both South Africa and Israel were the same, the other time allocations, including preparation time and response times, were not.

In its new provisional measures order of May 24, the issue of Israel providing insufficient information to the court, which could have prevented the new measures from being ordered, was specifically mentioned: “The Court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far. Consequently, the Court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah.” If Israel’s ability to provide sufficient information was hampered by a violation of due process, the question of what options are available to Israel remains. As mentioned above, decisions of the ICJ, including provisional measures orders, are not subject to appeal, nor does the court have an annulment procedure in place, like some arbitral tribunals.

However, the possible violation of Israel’s due process rights in this hearing may impact domestic enforcement of the resulting order. Indeed, “it is the domestic courts that have the authority and the expertise to determine the domestic legal effect of ICJ decisions, for example their self-executing nature or their relationship with domestic procedural rules.” When it comes to the enforcement of international arbitral awards, for example, breach of due process is typically one of the grounds specified in domestic arbitration legislation as a basis to set aside an award. One might imagine that the same ground can be used for failing to enforce a decision of the ICJ. Enforcement proceedings regarding ICJ decisions are rare but not nonexistent. The issue was raised in Medellín v. Texas, in which the U.S. Supreme Court extensively analyzed the enforcement of provisional measures orders of the ICJ domestically and considered whether they are self-executing and the state’s discretion in implementing them. Thus, it is plausible that a domestic court finding of a violation of Israel’s due process rights leading up to the issuance of the order could render the order of no or limited effect under Israeli law. So far, no such domestic court decision appears to have been made, and Israel in fact continued with its Rafah operation following the issuance of the order, on the basis that such operation had not and would not “inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

But if South Africa or another state were to argue that Israel was not complying with the order and were to raise the issue with the UN Security Council, which has the power under Chapter VII of the UN Charter (subject to the regular veto limitations) to enforce ICJ decisions, the likelihood of a state using its veto power against any enforcement decision might be higher if it is perceived, generally, that Israel was not afforded an adequate or equal opportunity to be heard. In this regard, it should be noted that immediately after the ruling, U.S. and Israeli politicians and commentators were quick to highlight what they referred to as the court’s “anti-Israel bias,” with at least one such commentator, Lt.-Col. (res.) Maurice Hirsch, referring specifically to the “court’s obtuse, unfair, and unexplained decision to refuse the Israeli request to delay the hearing to secure the chosen representation.” As the U.S. frequently uses its veto power for the benefit of Israel, these sorts of perceptions could have a significant practical impact. At the same time, it is not uncommon for Israeli and U.S. politicians to make statements regarding the perceived anti-Israel bias of the UN or the international court system, and it is difficult to judge the extent to which a possible violation of Israel’s due process rights in this case made any significant difference.

Moreover, in each of the options above, Israel may still need to convince others that the violation of its due process rights materially impacted the outcome of the order. Considering by analogy the ICSID annulment procedure, there are three elements that must be established for annulment to occur: (a) identification of a “fundamental” rule of procedure, which includes the equal treatment of the parties and the right to be heard; (b) a finding that the tribunal “departed” from such fundamental rule; and (c) a finding that such departure was “serious.” In considering whether a serious breach has occurred, some ad hoc committees—such as those in the cases of Wena, CDC Group, and Fraport—have required that the departure from the fundamental rule must have had a material or substantial impact on the outcome of the award for the annulment to succeed. Thus, in 99 proceedings where the ground of “serious departure from a fundamental rule of procedure” has been pursued, only five annulment decisions have been rendered (in full or in part).

In domestic proceedings, or to gather political support at the UN Security Council, Israel may need to show that any disadvantage it faced due to the lack of legal representation during the hearing and the short and unequal timeframes it was given to present its case had a material impact on the outcome of the order. This could be difficult to show. However, note the finding of the arbitral tribunal in Amco II, “The fact that the decision to be taken seemed apparent cannot be considered as a justification for dispensation with a mandatory rule of procedure designed to guarantee equality of opportunity for the parties to have their views heard on the issues to be addressed and decided by the Tribunal.” In other words, even if one were to argue that the ICJ’s order regarding Israel’s continued operation in Rafah was obvious or apparent, this would not negate the need to respect Israel’s right to be heard prior to such order being made.

Even if few states and commentators have picked up on the procedural peculiarities that unfolded before the ICJ in May, the fact that they took place is worrying. Indeed, Vice-President Julia Sebutinde concluded her dissenting opinion to the May 24 provisional measures order by noting exactly this. She stated:

Finally, I find it necessary to note my serious concerns regarding the manner in which South Africa’s Request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s Request and engage counsel. Regrettably, as a result of the exceptionally abbreviated time-frame for the hearings, Israel could not be represented by its chosen Counsel, who were unavailable on the dates scheduled by the Court. It is also regrettable that Israel was required to respond to a question posed by a Member of the Court over the Jewish Sabbath. The Court’s decisions in this respect bear upon the procedural equality between the Parties and the good administration of justice by the Court.

Perhaps the court had sound reasons for proceeding in the way that it did. However, given the high-profile nature of this case, the judges are no doubt aware of the heightened need to appear impartial. Thus, even an appearance of bias, and a perception of disrespecting fundamental rules of due process, could be detrimental for the perceived authority of the court’s decisions going forward.

– Olivia Flasch is a Legal Consultant in Public International Law, with a particular focus on armed conflicts and international criminal law. She holds a Master of Law (MJur) from the University of Oxford. published courtesy of Lawfare.