South Africa vs Israel at ICJ: A moral triumph amid Gaza’s struggle for justice

Can the ICJ's verdict against Israel in the Gaza genocide case end the ordeal for the Palestinian people?

The International Court of Justice (ICJ) has often been criticised as the United Nations’ (UN) least effective body, with a recent rejection by Israel adding to its list of limitations. The ICJ, established post-Second World War as the UN’s judicial arm, faces four significant shortcomings that hinder its impact.

Firstly, states in dispute must agree to appear before it, subjecting themselves to its decisions–a factor that allowed the US to dismiss a 1986 judgment against its military interventions in Nicaragua. Secondly, advisory opinions, as seen in the Palestinian wall case, are non-binding. Thirdly, the ICJ wasn’t designed for criminal cases, leaving war crimes prosecution to the International Criminal Court (ICC). Lastly, it exclusively deals with state disputes, excluding individuals or groups from bringing states to justice.

Despite hosting skilled judges, including figures like Rosalyn Higgins, the ICJ has had minimal influence on postwar international law, particularly in recent contentious situations like the Iraq invasion, and the bombing of Libya.

ICJ’s rulings on Israel’s actions in Gaza

In a recent development, the ICJ’s attention turned to Israel‘s actions in Gaza, prompted by South Africa’s claims of genocide. The court’s rulings, while not ordering an immediate halt to Israel’s military campaign, acknowledged the catastrophic situation in Gaza. Significantly, it highlighted the serious risk of further deterioration before the final genocide verdict—a process expected to span years.

The ICJ demanded several measures from Israel, mirroring South Africa’s provisional demands. Among them, Israel is urged to avoid causing harm to Palestinians, creating intolerable living conditions, and preventing Palestinian births. Additionally, the court called for action against public incitement to genocide, referencing statements by Israel’s president and defence minister. While not explicitly calling for a ceasefire, these demands, if implemented, would reshape Israel’s military approach in Gaza.

Israel vehemently rejects genocide allegations, attributing civilian casualties to Hamas’ strategic positioning within densely populated areas. Despite its claim of having the “most moral army in the world”, Israel’s actions have displaced a significant portion of Gaza’s population, prompting concerns about humanitarian conditions.

As the ICJ’s rulings have no enforcement mechanism, Israel has the option to ignore them. As diplomatic efforts focus on a potential ceasefire and aid flow improvement, Israel may argue that it is already addressing the court’s demands. However, the legal shadow of the genocide accusation looms over Israel until the ICJ delivers its final verdict in the coming years.

The ICJ’s verdicts and the enforcement challenge

As the court ruled that Israel must adhere to provisional measures, on the punishment for inciting genocide, and on preserving evidence of alleged crimes, it sets a precedent for accountability. However, the nuanced nature of the rulings and the wider geopolitical context raise critical questions about the ICJ’s role, the influence of Western powers, and the challenge of enforcing its decisions.

The ICJ’s clear directives for Israel to comply with provisional measures, punish incitement to genocide and preserve evidence underscore the severity of the allegations. Yet, the absence of an immediate ceasefire order highlights a deeper issue—the challenge of enforcement. The court, recognising the catastrophic situation in Gaza, seems to hesitate in issuing a directive it cannot enforce.

This hesitation stems from the geopolitical reality that has plagued the ICJ since its inception—the voluntary submission of states to its jurisdiction. The absence of an enforcement mechanism leaves room for non-compliance. The fear of rendering an unenforceable order might explain why the ICJ did not demand an immediate halt to Israel’s military campaign. The crux of the matter lies in the broader context of geopolitics, where the support or lack thereof from powerful nations can determine the effectiveness of international legal mechanisms.

Western powers and selective justice

To understand the limitations of the ICJ, one must consider the historical context of its engagements. The absence of certain cases before the ICJ, such as the Iraq invasion and the bombing of Libya, suggests a selective approach to seeking justice on the international stage. The failure to bring such cases to the ICJ raises questions about the court’s role in a world where powerful nations often act with impunity.

The 2003 Iraq invasion—based on fabricated intelligence and without a UN mandate—represents a breach of international law. However, the absence of legal consequences for the US in the ICJ raises concerns about the court’s ability to address crimes committed by western powers. Similarly, the NATO-led intervention in Libya in 2011 lacked a clear legal basis, yet no action was taken against the responsible parties in the ICJ.

These instances fuel scepticism about the ICJ’s ability to be an impartial arbiter and, instead, raise questions about its susceptibility to geopolitical pressures. The court’s effectiveness is compromised when powerful nations escape accountability, leading to a perception that it serves as a tool for modern hegemony, particularly that of the US.

The core challenge is not merely about the evidence of violations but the geopolitical dynamics that govern the court’s operations. For the ICJ to function as a bastion of international justice, the cooperation of powerful western nations, particularly the US and the EU, is the only way. This leaves the global south and non-western states at the mercy of the West in such a unipolar institution. The ICJ or the ICC remain the tool of the modern hegemon and thus lacks the true essence of universal and fair justice.

Moral victory in the shadows of Gaza

While the recent ICJ victory may not halt what many argue to be a genocidal act by Israel, it carries a weighty moral significance. The court’s rulings, despite their limited enforceability, serve as a beacon of accountability and a challenge to the prevailing narrative perpetuated by Israel and certain western powers.

The acknowledgement that Israel must adhere to provisional measures, face punishment for inciting genocide, and preserve evidence of alleged crimes sends a powerful message. It challenges the prevailing narrative that has often shielded powerful nations from scrutiny and accountability.

This moral victory holds the potential to reshape the narrative surrounding the Israel-Palestine conflict. By shedding light on the severity of the situation in Gaza and holding Israel accountable for its actions, the ICJ’s rulings disrupt the established discourse. It prompts a re-evaluation of the biased narrative perpetuated by Israel and certain Western powers.

A call for international cooperation

In conclusion, while the ICJ’s recent rulings on Israel’s actions in Gaza mark a step towards accountability, the limitations in enforcing these decisions point to a larger systemic issue. The court’s efficacy is tethered to the cooperation of powerful nations. The reluctance to demand an immediate ceasefire, not due to a lack of evidence, but the inability to enforce such a ruling, highlights the need for the international community (western and non-western) to collectively commit to the principles of justice and accountability. The ICJ and similar institutions can only truly serve their purpose when they operate beyond the shadows of geopolitical influence, ensuring that justice is blind and impartial, regardless of the power dynamics at play.

While the ICJ’s power to enforce its decisions remains limited, the moral victory it represents cannot be understated. It provides a platform for voices advocating justice, human rights, and accountability to challenge the prevailing narrative. In a world where narratives can shape perceptions and influence policies, this moral victory becomes a crucial step in fostering a more just and equitable discourse surrounding the ongoing conflict in Gaza.