Thursday, 11 January 2023, was a historic day in the decades-old Israel-Palestine conflict. For the first time since its existence, Israel was sitting as a defendant in the world’s highest court, the International Court of Justice (ICJ), to defend itself against charges of committing genocide against the Palestinians in its three-month war in Gaza, brought about by South Africa.
For decades, Israel had avoided accountability for its occupation of Palestinian territories and its responsibility as an occupying power. Whenever a case against it was brought to the attention of the UN Security Council, the United States, supported by the UK and France on most occasions, would use its veto power to vote down any resolution that would condemn Israeli actions or demand that it suspends illegal actions in the occupied territories; most notably the building of settlements.
The ongoing war on Gaza is a case in point. Israelis, who continued to wage a horrific attack against the people of Gaza indiscriminately, resulting in the killing — so far — of more than 23,000 Palestinians, including at least 10,000 children. More than 60,000 tons of munitions have been dropped on the narrow and crowded strip of land.
Violation of international law
Half of Gaza’s infrastructure has been destroyed. Universities, hospitals, mosques, churches, schools, and residential buildings have been struck. Israel has enforced a total blockade, denying people access to water, electricity, food, and medicines. Those targeted include journalists, doctors, medics, UN workers, and hapless displaced people who were told to move to “safe areas” only to be bombed as they moved or once they arrived at these designated areas.
The case against Israel is compelling. The South African team of lawyers had prepared their presentation well, aided by the incendiary statements made by senior Israeli officials themselves, including Prime Minister Benjamin Netanyahu himself, as well as his defence minister, the president of Israel, members of his own government, and radical Knesset lawmakers.
Israel could not have skipped the ICJ’s historic session. As a member of the UN, it is also a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide or the Genocide Convention. Therefore, unlike the UN Security Council, the US and other permanent members have no authority over the 15-member ICJ panel of judges, whose ruling will be binding to all UN members.
It is ironic that despite decades of occupation, including extrajudicial killings, land expropriation, and demolition of houses, among others, this is only the second case against Israel to be reviewed by the ICJ. The first was brought by the UN General Assembly in 2003, requesting an advisory opinion by the ICJ on Israel’s construction of a wall, i.e., a separation barrier or fence, in the West Bank. The ICJ’s non-binding opinion in 2004 was that the barrier violates international law and should be torn down.
But this time, the circumstances are different. This is an ongoing war in Gaza where South Africa has presented evidence of intent to carry out genocide and other war crimes, such as forced displacement of people. South Africa’s argument was based on legal interpretation of the genocide convention as well as evidence that Israel was violating that convention.
Core of the case
On the other hand, Israel’s attempt to refute South Africa’s case was based in its entirety on the 7 October Hamas attack, which South Africa had already condemned, and using that attack as justification for its military operation in Gaza under the guise of self-defence. But South Africa had already made a case, saying that what happened on 7 October can never justify genocide. That remains the core of its case, and this is what the ICJ judges will focus on regardless of what Hamas did on 7 October.
What is important here is that South Africa had asked the judges for a provisional ruling by the court to cease and desist until the 15-panel of judges makes a final adjudication. That means that Israel will have to stop its military operation, allow humanitarian aid, refrain from carrying out any action that violates the Convention on the Prevention of Genocide, and refrain from any actions or decisions that include forced displacement, displacement, or denial of access to water and food, stop killing Palestinians and inflicting any physical or psychological harm on them, prevent the destruction of evidence and place no restrictions on fact-finding missions.
The ICJ should decide on the provisional ruling within days or weeks. A final ruling on South Africa’s application may take years. But if the court accepts the provisional ruling, it will be a significant victory for the Palestinians and a moral defeat for Israel. While the ruling is binding, the ICJ has no tools to impose it. Israel could still ignore it, which would weaken its position globally.
Furthermore, the ruling would make countries aiding Israel in its war complicit and stand to become accessories to war crimes in the future, especially if the International Criminal Court (ICC) steps in to investigate the war on Gaza.
The rules-based international order is at a tipping point and the ruling of the ICJ would determine the future of this order and whether Israel’s impunity continues or it has reached its end.
Osama Al Sharif is a journalist and political commentator based in Amman.
