Israel Heads to the International Court of Justice

Case Unlikely To Be a Step Towards Peace

South Africa recently accused Israel of genocide in a complaint filed with the International Court of Justice (ICJ). Evidently the ICJ will agree to hold an initial hearing in the case next week. It looks like Israel plans to participate, and will send a legal delegation to present its case. What does this mean, and what will the consequences of the ICJ’s ruling be?

The ICJ is an organ of the United Nations. Its job is to settle disputes between states. So for example, if one country believes a neighboring country is illegally polluting its territory, it can sue at the ICJ. But in this case South Africa is turning to the ICJ because of a treaty called the genocide convention, to which both it and Israel are signatories. Countries that join the genocide convention vow not to commit genocide and to prevent it from occurring. The genocide convention specifically states that member countries agree that the ICJ will resolve any disputes.

This quite likely explains why Israel is agreeing to participate, whereas it frequently boycotts international legal proceedings taking place under the auspices of the UN. As Israel has already ratified a legally binding treaty accepting the ICJ’s jurisdiction, while it obvious will argue against South Africa’s claims, it has no basis for disputing that the ICJ has the right to decide this case.

The positions of South Africa and Israel are well known. South Africa will argue that while Israel has the right to defend itself from Hamas’s Oct. 7^th attack, its military campaign has grown so disproportionate it threatens to destroy a significant segment of the Palestinian population in Gaza and therefore rises to the level of genocide. Israel claims that Hamas are the ones trying to perpetrate genocide. While Israel’s military campaign has clearly caused extensive civilian loss of life and damage to civilian infrastructure, this has been necessary to achieve its justifiable military goals in fighting Hamas. Israel will claim that any individual humanitarian violations it is accused of may constitute war crimes, but even if disproportionate force or a civilian object was targeted here or there, that still doesn’t mean the overall military campaign is genocide.

What Might the ICJ Rule?

South Africa wants the ICJ to find that Israel is committing genocide and order it to stop. It’s of course possible the ICJ would conclude there is evidence of genocide. That said, it’s hard to imagine the ICJ telling Israel it shouldn’t use any military force in Gaza whatsoever.  After all, Hamas is still launching rockets and holding hostages, and obviously Israel has the right to defend itself from that. But it could rule that Israel should refrain from any military activity that forces civilians to leave their neighborhoods, destroys civilian property or infrastructure, and so forth. In fact, to me that sort of ruling seems most likely.

Israel already insists it is doing all that to the best of its ability. So in this scenario, those who currently believe that Israel’s military actions violate humanitarian law would just add on that they violate the ICJ’s ruling also, whereas those that defend Israel’s military actions as in keeping with humanitarian law would just argue that Israel is already in compliance with the ICJ too. In other words, more of the same.

One unfortunate reality is that while it seems possible the ICJ might agree with South Africa to at least some degree that there is genocide, the farthest the court can go the other way is to ‘not find sufficient evidence that Israel’s actions constitute genocide’, or something like that. Israel’s detractors will then say that only because the court can’t consider evidence that hasn’t been verified, such as videos uploaded to youtube, statements of alleged victims made on the news, and so forth. Detractors will say that the ICJ didn’t have evidence because it’s still buried in the rubble, but it will come later when investigators arrive in Gaza after the war.

What are the ICJ’s Powers?

It’s important to note that the ICJ has limited powers. It has no jurisdiction over individuals, so no Israeli political or military figures are threatened with jail. It cannot enforce its orders at all- it just issues a ruling and then it’s up to individual countries (and the United Nations) to decide on any steps to take based on what the ICJ found.

This doesn’t mean that the ICJ’s ruling won’t be consequential. A determination that Israel is committing genocide would provide legal validation to the throngs of anti-Israel protesters around the world chanting ‘stop the genocide’ at their rallies. It would also be ammunition for countries interested in imposing sanctions against Israel, curtailing military cooperation or weapons sales, and the like.

It’s also obvious that in the (what I consider unlikely) event that the ICJ issues a ruling ordering Israel to stop doing military actions that Israel considers vital for its defense, Israel will very likely ignore it. This is similar to what happened when a few months after Russia’s invasion, Ukraine sued in the ICJ and got a ruling ordering Russia to stop. Russia made clear it had no intention of obeying. It should be noted, though, that while the case against Russia also relied on the genocide convention the two matters are legally very different and the ICJ was never asked to judge whether Russia was committing genocide itself.

Will This Help Bring Peace?

I think the most important question we have to ask is whether this case at the ICJ will help bring peace and security to Israel and Gaza. Unfortunately, it’s hard to see how this will help.

If the ICJ issues a ruling Israel strongly disagrees with, the only effect will be to further poison the relationship between Israel and the international human rights community. The more Israel believes the UN, its judicial organs, and the international organizations associated with them are just out to get it, the less Israel will show any willingness to listen to anything they have to say.

What if the ICJ issues a ruling that is at least palatable to Israel? Let’s say the ruling does not find genocide, and merely just repeats the well known admonition that Israel should do everything possible to avoid civilian casualties and make sure to adhere to international law?

Obviously, as I mentioned above, there is no way anything the ICJ says will convince those accusing Israel of genocide (and other crimes) to change their minds. They’ll just insist the court didn’t have all the evidence. So the international upside of a favorable ruling is minimal. And obviously residents of Gaza are not going to change their narrative of events because of a panel of judges thousands of miles away.

A contentious court case is not going to help resolve differences, create a safe atmosphere for negotiation, or help each side understand the other’s perspective. There is no reason to think this arguing in court will take the place of firing bombs and rockets in the Gaza battlefield. Rather this court case is a sign the war between Hamas and Israel is continuing strong, so much so that it’s spilling even into international legal forums where previously no one had yet thought to fight.

Photo by Tingey Injury Law Firm on Unsplash