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02:31

17 MAY 2024

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  • Staff
    • Mar 21
    • 6 min read

Trouble Ahead: The ICJ Opens A Pandora’s Box For Baseless Claims Against Israel


  • On December 29, 2023, South Africa filed a lawsuit against Israel at the International Court of Justice (ICJ). 





  • Israel advocates fear the ICJ trial potentially opened a Pandora’s box of additional baseless allegations against Israel.


 

The ICJ’s Ruling Casts a Shadow on Israel’s Morality, Opening the Door to Future Attacks


One of the most significant implications of the ICJ’s ruling is the fact that it casts a shadow on Israel’s morality. It also opens the door for future allegations against Israel, however unreasonable. This can be seen through the reactions of various entities that openly responded in favor of the ICJ’s vote, as well as additional allegations brought to court against Israel. 


For example, Hamas took the ICJ’s ruling as a moral victory and celebrated the ICJ’s vote. The International Federation of Human Rights (FIDH) was strongly in favor of the ICJ’s vote as well. 


The FIDH not only favors the idea that Israel needs to take immediate action to prevent the ongoing alleged genocide of the Palestinian people, but it also emphasizes the need for there to be some sort of accountability on Israel to follow through with the ICJ’s ruling. More specifically, the FIDH has called on the UN Security Council, singling out France, to ensure that Israel complies with International law and to even implement sanctions if Israel does not comply. 


Most recently, the ICJ has decided to hold hearings regarding Israel’s “occupation” of the West Bank. Over 50 states intend to participate, including some of Israel’s allies including the US, but also China, Russia, South Africa, and Egypt. 


These hearings will focus on Israel's occupation, settlement, annexation policies, and alleged discriminatory legislation, especially concerning Jerusalem. The UN General Assembly seeks the ICJ's advice on the legal consequences of these policies. 


This inquiry is separate from the ICJ’s genocide case against Israel, and the genocide case has opened the door for other states to bring Israel to court. 


As the war continues, other charges may be levied against the Jewish state now that there is a precedent that charges can be brought and heard, no matter how baseless.



History of the ICJ 


Before the ICJ was formed, the Permanent Court of International Justice (PCIJ) was in charge of mitigating disputes and providing advisory opinions internationally. However, when WWII broke out in 1939, the PCIJ neglected to take action on any topics related to the war, including war crimes committed in Europe. Its activity declined, and international leaders wanted to put a new body in charge of regulating peace. 


In 1945 in Washington, DC, a proposal was put together to form the ICJ. The proposal was accepted, and it was decided that a new body would replace the PCIJ. This was mainly because the PCIJ was connected to the League of Nations and international leaders wanted there to be broader international representation moving forward. 


Notably, even after the ICJ was formed and the PCIJ was dissolved, it still did not address any disputes related to WWII. 



How the ICJ Works Today


In order to ensure some level of checks and balances in the ICJ, there are 15 judges who are elected to serve nine-year terms, and they are elected by both the UN General Assembly and the Security Council. In order for a candidate to be elected, they need to receive a majority vote from both bodies. Judges can be re-elected, and judges can also serve ad hoc for specific cases brought before the court. However, the court cannot include more than one person of a specific nationality at a time. 


The ICJ is composed of 193 states from the United Nations, and its goal is to maintain peace among the countries that are a part of it. The two types of cases brought before the ICJ are: 


  • Contentious cases: an argument between countries

  • Advisory Proceedings: a legal counsel request


The genocide case against Israel brought to the ICJ by South Africa is considered a contentious case, and it is the first of its kind to be brought against Israel in its history. 



Hypocrisy Within the ICJ’s Vote on the Genocide Case Against Israel 


On January 26, 2024, the ICJ reached a decision in which 15 judges voted in favor of enforcing provisional measures on Israel and two voted against it. The judges who voted in favor were: President Donoghue, Vice-President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judge ad hoc Moseneke. The judges who voted against were: Judge Sebutinde and Judge ad hoc Barak.


Judge Xue declared her opinion, expressing concern over the humanitarian situation in Gaza. It is interesting to note that Judge Xue was previously the Chinese delegate for the Convention Against Transnational Organized Crime, whose primary protocol is to prevent, suppress, and punish the trafficking in persons, especially women and children. Despite this, she did not mention the lack of humanitarian aid provided to the hostages, even those who are women and children, in Gaza. She also did not mention Hamas’ legal record of trafficking Palestinian women and children to use them as human shields.


Judge Bhandari openly condemned Israel’s attacks and described the humanitarian catastrophe in Gaza. Judge Bhandari is well known for having passed orders for free education for Indian children and was awarded an honorary doctorate in justice for his accomplishments in law and justice at Tumkur University.  However, in his open condemnation against Israel, he neglected to mention Hamas’ involvement in promoting terrorism in Palestinian schools since 2007 and the fact that Hamas uses schools as a cover during the current war because they know the IDF will not attack them. 


Judges Sebutinde and Barak were the two judges who voted against the genocide case. Judge Sebutinde argued that the dispute is political, and not suitable for judicial settlement. He questioned the plausibility of genocidal intent. Judge Barak expressed doubts about South Africa's good faith, emphasizing Israel's right to defend its citizens, and questioned the plausibility of genocidal intent.


The ICJ voted for the following provisional measures on Israel, ruling that Israel must: 


  • Refrain from acts under the Genocide Convention

  • Prevent and punish incitement to genocide

  • Take effective measures to allow humanitarian assistance

  • Reserve evidence related to acts under the Genocide Convention 

  • Provide a report on measures it has taken within one month of the court’s ruling. 



Main Takeaways From The ICJ Vote


Although four out of the six measures were voted in favor of by the court, the judges did not approve the request to stop military action in Gaza nor did they order a cease-fire. However, the fact that the court will eventually address the genocide question adds legitimacy to the question. 


The court explicitly stated that it was not determining whether or not Israel committed genocide in Gaza, only whether or not measures should be taken to prevent it. Concurrently, Prime Minister Netanyahu asserted that Israel is steadfastly committed to international law, but strongly emphasized his continued rejection of South Africa’s genocide claim against Israel. 


The US and Canada have reiterated that they reject South Africa’s genocide claim against Israel. In contrast, Hamas celebrated the ICJ’s ruling, stating that it isolates Israel and emphasizes crimes they have allegedly committed in Gaza. 



Other Genocide Cases Brought to the ICJ


There have been other genocide cases previously brought to the ICJ. In November 2019, Gambia accused Myanmar of genocide against Rohingya during their operations in 2017. The ICJ unanimously ordered Myanmar to prevent genocide against Rohingya in 2020. Myanmar consequently submitted reports on their compliance with the order.


Another genocide case brought to the ICJ was Ukraine vs. Russia. Ukraine accused Russia of falsely claiming genocide to justify its invasion of Ukraine. The ICJ then issued provisional measures against Russia, requiring Russia to suspend all military operations. Russia, however, did not comply with this order. 


It seems that the difference between Myanmar’s and Russia’s responses to the ICJ rulings was based on internal standings. Myanmar benefited diplomatically from participating in the ICJ proceedings, while Russia was already established as a key international leader and did not have anything to gain by participating. This indicates that despite the significance of international law, it has limitations in being used to accurately determine or prevent instances of genocide. Efforts to do so are often constrained by political dynamics and the complexities of global conflicts.


 

Sources 






International Court of Justice, https://www.icj-cij.org/node/203454












 

Mideast Journal Staff


Mideast Journal Staff is a team of expert writers, editors, and researchers, committed to delivering accurate fact-based coverage of the conflict between Israel and the Palestinian people.


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