The International Court of Justice
On Friday the International Court of Justice demanded that Israel try to contain death and damage in its military offensive, though it stopped short of ordering a ceasefire in Gaza in a genocide case filed by South Africa.
Prime mMinister Benjamin Netanyahu vowed to press on with the war. “We will continue to do what is necessary to defend our country and defend our people,” he said. “Like every country, Israel has the basic right to defend itself. The Court in the Hague rightfully rejected the outrageous request to take that away from us.”
But now the Court has directed Israel to do all it can not to commit or incite genocide, including refraining from killing Palestinians or causing them harm, and to provide a report within a month to the ICJ proving they are taking steps to prevent genocide from occurring.
Israel has done its best to discredit the ICJ’s actions – as demonstrated by comments such as tweeting “Hague, schmague” coming from no less than the Israeli security minister Itamar Ben-Gvir just moments after the ICJ’s judgement. But its actions tell a different story.
Despite Netanyahu calling South Africa’s accusations “outrageous”, he sent a high level legal team to the Hague, suggesting Israel views the case seriously. This was in contrast to previous incidents where Israel has boycotted international tribunals and UN investigations.
To enforce the ICJ’s orders would require a Resolution from the UN Security Council (current members: the Permanent Five plus xyz) The US, UK and others would then have a choice to veto or abstain. Abstention would not block enforcement. A veto would. A decision to wield the veto – which is only available to the Permanent Five – would set a risky precedent for Israel’s friends.
The Court will next week rule on Ukraine’s case against Russia’s involvement in the shooting down of MH17. Another ongoing ruling at the ICJ concerns genocide in Myanmar. Britain is amongst the backers of Gambia’s accusations that the Myanmar junta is committing genocide against Rohingya Muslims. Failure to recognise an ICJ judgement on Israel would make this case far less powerful.
Each ICJ case must be viewed on its own merits. However ignoring the Gaza ruling while endorsing another inevitably risks accusations of double standards and risks undermining the ICJ, a pillar of the post-WW2 international order.
What’s more, the international community’s opinion matters. This Court ruling has attracted huge amounts of attention – unlike previous ICJ judgements on other conflicts – and has undeniably harmed Israel’s case. A poll released two days ago showed a third of Americans now believe Israel is committing genocide. This view can no longer be dismissed as a manifestation of anti-semitism (which this paper condemns absolutely).
It is possible, even likely, that the final judgement of the ICJ is less than definitive. In the case of the Srebrenica massacre in Bosnia and Herzegovina, the ICJ acquitted the Serbian state of actively committing genocide but ruled Serbia had breached the Genocide Convention by failing to prevent genocide from occurring. In Serbia’s case there have been few real-world consequences, or none that Serbia has not been willing to tolerate. But Israel is not Serbia.
The US Ggovernment may have reacted by saying it still believes genocide allegations against Israel are unfounded, but this position may become untenable.
Geoffrey Nice, a human rights lawyer, said that if Israel refuses point blank to comply, it could would “draw hatred from all sorts of places and add to what may seem to be a public sentiment that favours Palestinians.” The question is how much does this matter to Israel or its friends.
South Africa had requested the ICJ order a ceasefire – so why didn’t they?
Thomas Macmanus of Queen Mary University, said a ceasefire order would have “render[ed] Israel defenceless against an attack, and that’s not really within the purview of the court in this case”.
“But what they are asking … they asked to stop the killing,” he said. “Maybe not a total cessation of hostility, and maybe now Israel can have very targeted counterterrorism operations, but they cannot continue with the attack on Gaza as we have seen over the last hundred or more days.”
Kenneth Roth, former ED of Human Rights Watch, agreed: “No serious observer thought that would happen because it would be an order to one side in an armed conflict. This was a big defeat for Israel.”
The South African foreign minister for international relations, Naledi Pandor, said outside the court that Israel can’t effectively implement the measures ordered without a ceasefire – and indeed, a cessation of killing of Palestinians does imply a cessation in warfare.
Israel’s shift in strategy, from shelling Gaza to targeted killings in Lebanon
Having been directed to prevent Palestinian deaths, Israel can decide to shift its strategy from its military campaign in Gaza, which has so far killed over 25,000 Palestinians but has not been especially successful in in rooting out members of Hamas. For example, the Israeli Defence Force (IDF) has not so far killed any senior members of Hamas in Gaza.
In a gruesome statistic, the IDF claimed the ratio of deaths is 2:1 (civilian to militant). At the end of December the Euro-Mediterranean Human Rights Monitor estimated Gaza Strip deaths as 30,034 total and civilian deaths at 27,681 which would mean about 2,353 militant deaths, or more like 10:1.
This month, Israel has appeared to shift strategy to a campaign of asssassinating Hezbollah and Hamas militants in Lebanon – migrating the conflict zone from the border area to further inside Lebanon. This is likely a result of the mounting death toll in Gaza, of Palestinians, but also of Israeli soldiers.
“Now, the Lebanese front has become an easier theatre for the Netanyahu government to distract from the military and diplomatic impasse in Gaza,” Joe Macaron of the Wilson Center explains.
In the light of the ICJ’s ruling, it seems plausible that Israel will accelerate this approach.
The point of the rules-based order? Reputation matters
Netanyahu’s regime – on shaky ground due to internal dissent about failure to return hostages and the legacy of judicial reforms – must now produce a report to the ICJ within a month demonstrating a change in strategy. Israel has so far made a case that it is not committing genocide in Gaza. So, to fail to submit the report demanded by the ICJJ would not be a good look.
Undoubtedly the ICJ’s ruling presents a blow to Israel’s war in Gaza and standing on the world stage. Rather than demonstrating the uselessness of global bodies, the ruling seems to have done the opposite, indicating the moral authority international law still wields.
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