Whatever the decision, South Africa’s ICJ case has set winds against Israel

All eyes are on The Hague to see if the International Court of Justice (ICJ) announces on Friday any emergency measures, which can add to the global pressure on Israel to halt its military aggression against the Palestinians in Gaza.

The interim verdict in this landmark case, brought against Israel by South Africa, is eagerly anticipated.

The court is unlikely to rule on the accusation that Israel is committing genocide or reject South Africa's petition in the session. However, it is expected to rule on potential emergency measures in Gaza while the final judgment may take a few years to come out.

Some people have questioned ICJ’s ability to stop Tel Aviv’s aerial bombings and ground invasion in which more than 25,000 Palestinians, most of them women and children, have been killed.

ICJ has limited enforcement powers and does not have a police force to enforce its decisions.

But Marten Zwanenburg, a professor of international and military law at the Netherlands Defence Academy, University of Amsterdam, says that even in the absence of a concrete authority to enforce its decisions, ICJ's orders are not “meaningless.”

“Genocide is regarded as the crime of (all) crimes. It sends a strong political signal that South Africa chose to bring a claim based on genocide rather than war crimes,” he tells TRT World.

Now it’s up to the world powers to play their part in stopping the war, which has left one in four of the 2.3 million people in Gaza facing severe hunger, according to the UN.

“Other states and international organisations could try to make Israel abide by them through certain measures such as putting political pressure, imposing sanctions, or taking other unilateral or multilateral measures to respect ICJ’s orders,” says Zwanenburg.

Israel’s guarded reputation at risk

In its ICJ case, South Africa accuses Israel of five “genocidal acts”: mass killings, major mental and bodily suffering, forced relocation and blockade of critical supplies, annihilation of Gaza's healthcare system, and stopping child births by restricting life-saving medical treatment and care.

Although Israel denies that its war has any genocidal intent, South Africa’s accusations have pressed the international community to consider whether Israeli leadership has looked the other way while its military carries out a genocide.

The case can have negative implications for Israel's allies, like the United States and Germany, countries that claim to respect international laws and organisations like the ICJ, says Jaclyn Streitfeld-Hall, Director of Policy and Research at the Global Centre for the Responsibility to Protect.

“Now that a friend is on trial, contradictions are evident as they undermine South Africa's argument. It is not a good look for countries that promote international justice in certain places but undermine them when a close friend is on the line," she says.

The case at the ICJ has set the winds of international diplomacy against the Israeli Prime Minsiter Benjamin Netanyahu who has continuously refused to heed calls to do more to ease the humanitarian crisis in Gaza.

The US Secretary of State Antony Blinken has visited Israel several times, and he is now calling for the need to improve humanitarian conditions and end the Gaza conflict.

Similarly, Türkiye and Saudi Arabia have called for a two-state solution. Saudi foreign minister Prince Faisal bin Farhan Al Saud recently said there would be no normalisation of relations with Israel until a permanent Palestinian state is established.

“South Africa's decision to bring the case at ICJ fundamentally altered the landscape of the discussion about the situation in Gaza and, more broadly, the Israel-Palestine conflict,” Akshaya Kumar, Director of Crisis Advocacy at Human Rights Watch, tells TRT World.

“The accusations dismissed as slander or libel are now capable of forcing a discussion grounded in international law and puts the parties on an equal playing field in front of a judge. The whole world will be watching to see what these judges decide,” she says.

Right to self-defence

Israel's lawyers claimed at the ICJ that their country is using force for "legitimate self-defense."

While acknowledging Israel’s right to self-defense, Zwanenburg of Netherlands Defence Academy says the issue revolves around legal and moral boundaries within which Israel can exercise that right.

“The main parameters are that the use of force and self-defense must be necessary and only exercised if there are no other alternatives to using force. Secondly, it must be proportional to the goal of preventing an armed attack,” he says.

“The real questions are on the proportionality of the Israelis response. The question is whether Israel’s current action is still proportional to the aim of stopping an armed attack by Hamas.”

The history of genocide proceedings show that Israel can face a tough time in future.

A look back on the Genocide Convention

South Africa filed the suit at the ICJ based on the 1948 Genocide Convention that criminalises genocide and compels state parties to prevent it. As of 2022, 153 countries have ratified it.

HRW's Akshaya Kumar says South Africa's bid to link Israel’s war with genocide can kickstart debate about what other member states can do to prevent it.

The Genocide Convention has been invoked in the past in cases including Myanmar vs Gambia, Ukraine vs Russia and, Bosnia and Herzegovina vs Serbia and Montenegro.

The most recent case to be brought before the court was in February 2022, two days after Russia declared its special military operation against Ukraine.

Kiev applied to the ICJ for interim measures and accused Russia of fabricating genocide accusations and using the Genocide Convention to legitimise its military campaign. Russia claimed that its invasion of eastern Ukraine was to defend Russian speakers from a genocide.

Within a month, the ICJ ordered Russia to immediately cease its military operations in Ukraine. Russia rejected the orders challenging ICJ’s jurisdiction and continued its operation, while both parties await final decision.

Similarly, Myanmar faced a case for serious human rights violations, including genocide, against the Rohingya ethnic group.

While the International Criminal Court (ICC) was investigating crimes against humanity, Gambia filed a case at the International Court of Justice (ICJ), accusing Myanmar of violating the Genocide Convention.

The ICJ issued provisional measures in 2020, awaiting a final ruling, urging Myanmar to stop any genocidal act. However, Myanmar denied the allegations and limited its cooperation with the international body.

But the Bosnia genocide case is an instance where the ICJ gave a final judgement.

The case was brought by Bosnia and Herzegovina, saying that Serbia was responsible for genocide during the Bosnian War (1992-1995). ICJ rendered a decision in 2007, saying Serbia had failed to prevent genocide, but it did not say Belgrade committed it.

The court recognised that hundreds of Bosnian Muslim men and boys had been murdered in Srebrenica in 1995, but it did not link the state of Serbia to the genocide.

In the context of past Genocide Convention cases, HRW’s Akshaya Kumar says what matters most at this juncture is to see if governments will treat Israel like they did Myanma, which is under international sanctions.