ICJ’S DECISION OVER THE GAZA GENOCIDE UNDERSTANDING THE COMPLEXITIES OF INTERNATIONAL LAW
ICJ’S DECISION OVER THE GAZA GENOCIDE UNDERSTANDING THE COMPLEXITIES OF INTERNATIONAL LAW
By Miss Noorulain Shaikh
ABSTRACT
“This article aims to discuss the International Court of Justice’s judgment in favor of South Africa, and against Israel, for provisional measures. The author puts the current crisis in context and links it with its historical roots. In discussing the aftermath of the judgment, the author addresses the weak enforcement of international law, and how that will likely affect the Palestinians in Gaza and the international community in-large. The author discusses the likelihood of Israel’s contradictory course of action in Gaza, and toward the innocent civilians with the support of the influential states, due to the limited enforcement of international law mechanisms. Despite weak enforcement, according to the author, the judgment has affected the legal and political discourse, especially in terms of the role of influential states. There bias’ of states in ensuring the enforcement of international law has come to attention more than it ever has. The author further contextualizes the negative discourse around the enforcement of the judgment with the overall detriment to international law as a concept, and how that is something the international community does not desire. The shifting discourse will prove to be instrumental in terms of Israel’s conduct in Gaza, and the enforcement of the top court’s decision.”
The author is an LLB student at the University of London who is contributing as an editor at the Centre for Law, Justice, and Policy (CLJP). In addition to that, she holds the certification for completing the 8-week Alternate Dispute Resolutions workshop conducted by the Sindh Judicial Academy.
1. The Judgement in Question
In the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide In the Gaza Strip (South Africa v Israel),1 the International Court of Justice (the “Court”/“ICJ” ) addressed and decided in favor of some of the submissions made by South Africa and ordered provisional measures against the state of Israel.2 The decision came on 26 January 2024 and is the most ground-breaking judgment of the decade as it served as a breakthrough for the people of Palestine and the international community at large, after consistent military operations and alleged international law breaches by Israel3 for over three months.
2. History of this dispute
The conflict between Israel and Palestine, contrary to what a large segment of the global population and specifically the West believes, did not begin with Hamas’s attack on 7 October 2003. The tensions go back as far as 1948 and before. With the rise of Zionism,4 the concept of a separate Jewish state received more support from the Jews of Europe and top European leaders. In 1897, the World Zionist Organization announced Palestine as a land that would accommodate the Jewish people. The declaration was followed by a steady process of relocating the Jewish population in Europe to Palestine, eventually leading up to the formation of the state of Israel in 1948, in a land that was home to indigenous Palestinians. The formation of a separate Jewish land marked the beginning of endless discrimination, occupation, illegal settlements, and military conflicts in the disputed land.5
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1 Convention on the Prevention and Punishment of the Crime of Genocide
2 Application on the Convention and Prevention and Punishment in the Crime of Genocide in the Gaza Strip (South Africa v. Israel) (Application for provisional measures) <https://www.icj-cij.org/case/192> accessed 26 Jan 2024
3 Amnesty International, ‘Damning Evidence of War Crimes as Israeli Attacks Wipe Out Entire Families in Gaza’ (2023)<https://www.amnesty.org> accessed 1 Feb 2024
4 William Eichler, ‘Herzl’s Troubled Dream, ‘The Origins of Zionism’ (2003) <https://www.historytoday.com> accessed 1 Feb 2024
5 Manuel Hassassian, ‘The Rise of Zionism and Palestinian Nationalism: The Formative Stage of the Palestine Problem (1880- 1922)’ (1985) <https://www.jstor.org/stable/pdf/26445035> accessed 1 Jan 2024
2.1. Recent crisis – October 7
On 7 October 2003, Hamas, the Palestinian military group,6 launched a large number of rockets in the North of Tel Aviv and Southern Israel, resulting in the death of at least 1200 civilians.7 Immediately after Hamas’s attacks, Israel announced its war on Gaza.8 The war has resulted in catastrophic conditions in Gaza, the death of at least 26,900 civilians,9 the destruction of all medical facilities,10 and the deprivation of humanitarian assistance, food, and water.11 More than 1000 children have their limbs amputated,12 with more than 10 children losing legs every day.13The living conditions in Gaza and the grievous loss of human lives alarmed the entire world. Many experts regard Israel’s military operations in Gaza as the deadliest campaign in modern history.14
3. South Africa’s Plea to the ICJ
As a consequence of Israel’s outrageous conduct in Gaza, the state of South Africa accused the state of Israel of committing genocide under the Convention of Punishment and Prevention of the Crime of Genocide (hereafter referred to as “the Genocide Convention”) against the Palestinians in the Gaza Strip. In presenting their claims against Israel, the South African legal team reiterated that the people of Palestine have been subject to apartheid, systematic oppression, and racial discrimination since the formation of Israel in the year 1948. In doing so, the Ronald Lamola-led team highlighted the plight of the Palestinian people by referring to multiple reports published by international organizations such as the United Nations Relief and Works Agency (UNRWA) and the United Nations General Assembly (UNGA). One such report addressed the excessive use of force, settler violence, and the restriction on the freedom
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6 Kali Robinson, ‘What is Hamas?’ (23 Oct 2023) <https://www.cfr.org/backgrounder/what-hamas> accessed 1 Feb 2023
7 Al-Jazeera, ‘Israel Revises Down Toll From October 7 Attack to around 1200’’ (2023)<https://www.aljazeera.com/news/2023/11/10/> accessed 10 November 2023
8 Isabel Debre, ‘What to Know in the Latest Israel-Hamas War’ (2023) <https://apnews.com/article/> accessed 1 Feb 2023
9 Urooba Jamal, Nils Adler, Federica Merci, ‘Israel’s War on Gaza Live: Gaza Civilians Describe Israel’s Detention Ordeal’ (2024) <https://www.aljazeera.com/news/liveblog/2024> accessed 1 Feb 2024
10 World Health Organisaion, ‘WHO and partners Bring Fuel to Al-Shifa, As Remaining Hospitals in Gaza Face Growing Threats (2024) <https://www.who.int/news/item/> accessed 24 Jan 2024
11 United Nation Human Rights Office of the High Commissioner ‘Gaza is a Massive Human Rights Crisis a Humanitarian Disaster’ (2024) <https://www.ohchr.org/en/stories/2024/01/> accessed 4 Feb 2024
12Arafat Barbakh, Maggie Fick and Emma Farge, ‘Gaza’s child amputees face further risks without expert care’ Reuters (4 Jan 2024) <https://www.reuters.com/> accessed 2 Feb 2024
13 Jesse Yeung, Radina Gigova and Mohammed Tawfeeq, ‘More than 10 children losing legs in Gaza every day as dire health crisis grows, aid groups say’ CNN (7 Jan 2024) <https://edition.cnn.com/> accessed 4 Feb 2024
14 Even Hill, Imogen Piper, Meg Kelly, and Jarett Ley, ‘Israel has waged one of this century’s most destructive wars in Gaza
The Washington Post (23 Dec 2023) <https://www.washingtonpost.com/> accessed 4 Feb 2024
of movement before the October 7 attacks.15 They described the current situation as another Nakba.16
In its application, the state of South Africa addressed the questions of genocidal acts and intent of the state of Israel, prima facie jurisdiction, the rights of Palestinian people under threat, the urgency of the case and potentially irreparable harm, and the need for provisional measures. The case of Gambia v. Myanmar17 was referred to clarify that South Africa does not intend to prove that the state of Israel is indeed committing genocide but that some of the acts against the Palestinians are genocidal and may result in irreparable harm. South Africa, under Article IX of the Genocide Convention, highlighted that the application made it to the court after consistent correspondence with Israel whereby the concerns for genocide were explicitly raised, in addition to the allegations made in the United Nations General Assembly (“UNGA”), the United Nations Security Council (“UNSC”) and the application to the International Criminal Court (“ICC”) to order investigations into Israel’s genocidal acts. Hence, submitting the issue to the court and seizing its jurisdiction is justified. While linking the violation of Palestinian rights, the counsel argued that the right of the Palestinians in Gaza to “simply but profoundly” exist18 is compromised. The need for provisional measures is thus legitimate.
The demands for provisional measures primarily included a complete halt to military operations, compliance with the Genocide Convention, abstinence from furthering acts falling within the scope of Article II, forced displacements, and prevention of humanitarian aid to benefit the distressed. Increasing public incitement of genocide against the people of Palestine in Israel was also addressed with the demand from the court that provisional measures should also direct Israel to punish those who take part in such campaigns. Preservation of evidence and a report demonstrating allegiance to the orders also made it to South Africa’s application for provisional measures.
3.1. The Court’s Verdict
In its decision, the ICJ granted six provisional measures. These include acting contrary to Article II of the Genocide Convention, allowing humanitarian aid, taking steps to prevent
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15 UNGA, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories since 1967, Michael Lynk, A/76/433 (22 Oct. 2021) <n2129965.pdf (un.org)>
16 United Nations, ‘The Question of Palestine’ (2023) <https://www.un.org/unispal/about-the-nakba/#>
17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Applications for Intervention and preliminary objections) <https://www.icj-cij.org/node/106180> accessed 1 Feb 2024
18 Application on the Convention and Prevention and Punishment in the Crime of Genocide in the Gaza Strip (South Africa v. Israel) (Application for provisional measures) (2024) (para 5) <https://www.icj-cij.org/case/192> accessed 26 Jan 2024
public incitement of genocide, preservation of evidence suggesting any of the acts by Israel fall under Article II and submitting a report within one month to show the progress according to the order. However, the judgment fell short of ordering a complete military suspension and preventing the furtherance of all military operations. The grant of provisional measure meant that the allegations made by South Africa against Israel were “plausible”.
Article 59 of the statute of the International Court of Justice establishes that “ the decision of the court has no binding effect except between the parties and in respect of that particular case”.19 In addition, Article 36 of the statute of the court reiterates that the court shall only have jurisdiction over a dispute if the parties to the dispute declare compulsory jurisdiction concerning (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation ; (d) the nature or extent of the reparation to be made for the breach of an international obligation. The court also has automatic jurisdiction over disputes about interpreting certain treaties and conventions.20 Examples of such conventions include the Genocide Convention and the Convention on the Elimination of Racial Discrimination. When seen in the context of the present case, the ICJ judgment is binding on South Africa and Israel, according to the sections mentioned above. Israel, thus, is obliged to fulfill its international law obligations by conforming to ICJ’s orders. However, the dispute does not get resolved as simply as one might think in light of the Court’s judgment.
4. Failure of ICJ’s decision pursuant to Article 94(2) of the UN Charter
Israel may choose to act contrary to provisional measures ordered against it without facing any legal consequences. The ICJ’s decision, albeit binding, is not binding in the manner a national court’s decision is. International courts are not authorized to impose sanctions on sovereign states. In most cases, since parties voluntarily seize the court’s jurisdiction, the orders, no matter how adverse, are enforced. However, a state may withdraw from the court’s compulsory jurisdiction. Nicaragua v USA21 is an example of that, where the United States, in direct defiance, refused to comply with ICJ’s orders.
It is pertinent to understand that ICJ only serves as an adjudicating organ of the United Nations (“UN”). The responsibility to enforce its decisions falls under the ambit of the Security
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19 Statute of the International Court of Justice, Art. 59 <https://legal.un.org/avl/pdf>
20 Statute of the International Court of Justice, Art. 36 (a)(b)(c)(d) <https://legal.un.org/avl/pdf>
21 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Questions of jurisdiction and/or admissibility) (1984) <https://www.icj-cij.org/case/70/judgments>
Council. If a debtor state does not comply with the court’s decision, the injured state can use the Security Council to enforce the order.22 Composed of 15 members and five permanent members (Russia, United States, United Kingdom, China, and France), the council caters to issues concerning global peace. However, it has its limitations.
Apart from the lack of representation in the council, the factor that most certainly demonstrates the complexities of international law is the use of veto power, exclusively available to the five permanent members of the Security Council. However, to understand how it constrains the Security Council’s powers, the case of US v Nicaragua is significantly valuable. After ICJ adjudicated against the United States, Nicaragua called on the Security Council to enforce the orders against the United States.23 The United States, being one of the permanent members of the Council, vetoed the resolution tabled against it. Thereby, restraining the Council’s ability to enforce the ICJ’s orders. With ICJ’s decision in favor of provisional measures against Israel, the question is, how likely is Israel to follow the orders of the Court directly or through the Security Council?
Israeli Prime Minister Benjamin Netanyahu has maintained a consistent position regarding ICJ’s Judgement. Before the judgment, the Prime Minister said,
“We are continuing the war to its conclusion – to total victory until we have achieved all of our objectives. The elimination of Hamas, the return of all our hostages, and the guarantee that Gaza will never pose a threat to Israel. No one will stop us – not the Hague, not the Axis of Evil, or anyone else”.24
His intentions of manipulating and ignoring the Court are also evident in his statements post- judgment. He remarked, “The charge of genocide leveled against Israel is not only false but is outrageous, and decent people everywhere should reject it.”25 He further added, “Israel will continue to defend itself against Hamas, a genocidal terror organization.” He did mention that Israel will allow humanitarian assistance but reiterated that he will do “what is necessary to defend our country and defend its people.” Israel’s security minister went a step further and
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22 United Nations Charter (1945) Art.94(2) <https://www.un.org/en/about-us/un-charter>
23 UNSC, Draft resolution [on the ICJ judgment of 27 June 1986] S/18428 <https://digitallibrary.un.org>
24 Tovah Lazaroff, ‘No one, including Iran or ICJ, will stop IDF in Gaza – Netanyahu’ The Jerusalem Post (Jerusalem, 13 Jan 2024) <https://www.jpost.com/israel-hamas-war> accessed 2 Feb 2024
25 Tovah Lazaroff, Tal Spungin, ‘Netanyahu: Israel to defend itself from Hamas, genocide claims outrageous’ The Jerusalem Post (Jerusalem, 26 Jan 2024) <https://www.jpost.com/israel-hamas-war> accessed 2 Feb 2024
made a mockery of ICJ, calling it “Hague-Schmague,”26 indicating that the state does not plan on executing the provisional measures.
5. The role of influential States
Since it is a matter of peace, all eyes are on the Security Council to enforce the orders, especially, the US. The White House has shown unwavering support for Israel regarding its operations in Gaza, and called South Africa’s allegations of genocide “meritless, counterproductive, and completely without any basis whatsoever.”27 As the matter approaches the Security Council, the US can use its veto to shield Israel from executing the orders of the ICJ, which will pertinently bring a deadlock to the possibility of legal enforcement. The responsibility to enforce the orders now lies on the international community.
The West has the power to push Israel to enforce ICJ’s orders. It is because Israel has been able to commit genocidal acts in Gaza due to consistent support from Western leaders. One of the ways influential states like the US, the UK, Germany, Italy, and Canada can pressure Israel to abide by ICJ’s orders is by cutting or suspending arms deals. The US is the biggest arms importer to Israel, followed by Germany, the UK, Italy28, and Canada.29 If the arms trade is restricted, combined with sufficient strategic diplomacy from certain Western states, Israel may succumb to the pressure to adhere to the judgment made against it. However, there has been no indication from such states as of yet. It also leads us to reflect on the failure of the international community, especially the West, in pressuring Israel to stop the construction of the fence separating it from the territory of Gaza. In 2004, the ICJ, at the request of the UNGA, considered the legality of the construction of the said fence. On evaluation, it found the construction to be illegal and contrary to international law.30 Although it was only an advisory opinion, it shed light on Israel’s intentions toward the Palestinians in Gaza and the illegality of its actions, which is contrary to the spirit of international law.
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26 Middle East Eye, ‘Israeli national security minister reacts to ICJ ruling, calling it ‘Hague Shmague’ Middle East Eye (26 Jan 2024) <https://www.middleeasteye.net> accessed 2 Feb 2024
27 Andrew Feinberg, ‘White House dismisses South Africa’s genocide case against Israel as ‘meritless’ The Independent
(London, 3 Jan 2034) <https://www.independent.co.uk> accessed 2 Feb 2024
28 Statista Research Department, ‘Share of arms imported in Israel between 2000 and 2019, by supplier country (3 Jan 2023) (Statista) <https://www.statista.com/statistics>
29 Jonathan Guyer, ‘Most of Israel’s weapons imports come from the US. Now Biden is rushing even more arms’ Vox (18 Nov 2023) <https://www.vox.com/world-politics/> accessed 2 Feb 2024
30 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004
<https://www.icj-cij.org/case/131> accessed 2 Feb 2024
A similar pattern is prominent this time. Just a day after the ICJ’s judgment, Israel accused UNRWA staff of complicity in the October 7 attacks by Hamas.31 Immediately after Israel’s accusations, 10 Western countries, including the UK, Netherlands, Scotland, the US, Finland, Canada, Italy, Switzerland, Germany, and Australia suspended funds to the agency. While UNRWA has fired some of its employees, the investigation is still ongoing with no substantial proof of the allegations made. Subsequent events like this show that the political and diplomatic discourse among the World’s top leaders is contrary to the expectations generated by ICJ’s decision, and the likelihood of a steering policy change seems far.
However, the ICJ’s understanding of South Africa’s allegations as “plausible” is an unprecedented legal and moral blow to Israel. This particular judgment of the court is of utmost importance because (a) Genocide is a heinous humanitarian crime, and while the decision on the merits of the case will take years, the fact that it is even considered “plausible” puts Israel in a difficult position, and (b) the UNGA, on 12 December, demanded a humanitarian ceasefire in Gaza with 153 votes in favor, including Canada, India, and Australia.32 These factors fuel Israel’s moral and legal obligations. In addition, while most countries may not want to agree with ICJ’s finding of plausibility, there is a unanimous understanding among the international community that Israel’s bombing of civilians and infrastructure in Gaza should come to an end.
5.1. The discourse following the Court’s decision
In light of this decision, the primary responsibility falls on the states that are party to the Genocide Convention. Countries that are signatories include the US, the UK, Canada, China, France, Italy, and Russia. These countries, along with others are under the obligation to prevent genocidal acts in Gaza. It is achievable through diplomatic and economic measures that may prevent or at least minimize Israel’s aggression in Gaza. The judgment, while raising concerns regarding its enforcement, is creating tremendous legal pressure, especially in the US. In November, a petition was filed in a federal court in Oakland against US President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin by the Center for Constitutional Rights (CCR), accusing them of escalating the risk of genocide in Gaza by showing “unwavering” military and economic support to Israel, thus failing to prevent “genocide” in Gaza. The case, although dismissed because of the court’s apparent lack of
31 Dan Williams and Gabrielle Tetrault-Farber, ‘Israel accuses 190 UN staff of being ‘hardened’ militants’ (30 Jan 2024) <https://www.reuters.com> accessed 2 Feb 2024
32 UNGA Res ES/22 (12 Dec 2023) <https://documents.un.org/doc/>
authority to adjudicate certain political matters,33 is capable of producing reactions among people and politicians. The petition, backed by 77 human rights organizations across the globe,34 may not have meant a big deal in November but it sure does put the Biden administration in a politically unlikeable position. It will likely invite further legal and political discourse in and out of the US.
In addition, there is already ample discourse on the US and the UK for complicity in genocide against the Palestinians. South Africa is reportedly preparing a case against the two countries for accommodating Israel as it commits ‘genocide’ in Gaza35 by providing arms, ammunition, and diplomatic support on global forums like the UNGA and the UNSC. South Africa will likely take the matter to the UNGA if the US uses its veto to secure Israel from abiding by the judgment made against it, making it clear that the US is going to face political, legal, and moral pressure as Israel ignores its international obligations.
The judgment followed by Israel and the US’s blatant refusal to pay heed to it has sparked discussions regarding the hypocrisy of certain Western states when it comes to ensuring equal justice for all. The UK supported the Gambian allegations of genocide against Myanmar in the case of Gambia v Myanmar.36 However, it refuses to stop the atrocities of its ally, Israel, which has committed the worst atrocities in the realm of all recent military conflicts, killing thousands of innocent civilians. There is also a stark contrast between the US’s position in terms of the Russia-Ukraine war, where it showed utmost support for Ukraine financially and militarily,37 and its role in the Israel-Gaza war, where despite enough evidence of ‘plausible’ claims of genocide and ‘irreparable harm,’ it continues to support the aggressor state. From the Western side of the World, Belgium is the only state that has had a consistent anti-Israel policy in terms of the situation in Gaza, and after the Court’s decision, it, alongside Japan has decided to stop its arms trade with Israel.38 Nonetheless, there is a prominent divide between the Global South and the Global North, resulting in the bias of states.
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33 Bob Egelko, Israel intends to ‘eradicate a whole people,’ Bay Area judge says in dismissing the suit against Biden, San Francisco Chronicle (31 Jan 2024) <https://www.sfchronicle.com> accessed 2 Feb 2024
34 Centre for Constitutional Rights, ‘Gaza Genocide Lawsuit Against Biden Has Day in Court: Palestinians, Genocide Expert Provide Historic Testimony in U.S. Case (26 Jan 2024) <https://ccrjustice.org/home>
35 Sahara Reporters, ‘South African Lawyers Prepare Lawsuit Against US, UK For ‘Complicity’ In Israel’s Alleged Crimes in Gaza’ (2024) <https://saharareporters.com/2024/01/16/> accessed 16 Jan 2024
36 Foreign, Commonwealth & Development Office, ‘Intervention by UK and partners in The Gambia v Myanmar ICJ case: joint statement’ (15 Nov 2023) <https://www.gov.uk/government> accessed 2 Feb 2023
37 Bureau of Political-Military Affairs, ‘U.S. Security Cooperation with Ukraine’, U.S. Department of State (27 Dec 2023) <https://www.state.gov/> accessed 2 Feb 2024 38 The Palestine Chronicle, Belgian region follows Japan – no more munitions to Israel’ (2024) <https://www.palestinechronicle.com> accessed 7 Feb 2024
It is also required to understand that this case not only puts the international community in a difficult position but also tests international law as a concept. The concern that a state may get away with committing irreparable harm after the top World Court has adjudicated against it purely due to the political and ideological interests of other states that are in a position to prevent such violations from happening is detrimental to the purpose of international law and global organizations like the UN, which are specifically in place to prevent war crimes and crimes against humanity. Inaction from the international community, especially the influential states, would further fuel the argument made by the critics of international law that international law is nothing like law but rather a form of positive morality.
It is thus necessary that the international community adopts a balanced approach towards the upholding of international law. It does not mean that states should not value their political agendas since that is impractical to expect. But where there is a question of enforcing fundamental human and humanitarian rights, the legal obligations to international law and the international community should prevail. International law benefits every state. Each state is on a horizontal plane, entitled to the same rights and incurring the same obligations towards each other. However, to ensure that
the law benefits all, politics and diplomacy will remain central to international law and securing the rights of the global community.
Conclusion
The order against Israel to enforce provisional measures is of great importance. The Court’s consideration of the allegations of genocide and declaring them plausible creates the space for valuable discussions, debates, and necessary political and social reactions. While the lack of legal enforcement raises remarkable questions about the authority of global institutions, it is, however, the political discourse that will prove to be instrumental in this case, as it always has in such critical cases. What is worth anticipating is how the influential states adopt a balancing approach toward upholding international law and how the changing global discourse forces states to reconsider their policies towards Israel.
