ICJ will rule against Israel but ceasefire unlikely — experts
Legal experts believe the International Court of Justice (ICJ) is poised to order emergency measures against Israel on Friday. This may cover humanitarian relief, but they do not believe it will include a ceasefire.
SA made an application that accuses Israel of genocide in the Gaza Strip, but further action, including possible sanctions, is unlikely “anytime soon”, the legal experts say.
The ICJ’s 17-judge panel is set to announce its decision at 2pm on Friday in a ruling that “could potentially mark an important development in international law”, the experts say. Still, they do not believe the ICJ will order a complete end to Israel’s operations against Hamas, which rules the territory and has been labelled a terrorist organisation by some Western countries.
SA has received wide support from the international community for its stance, with only a few nations expressing outright criticism.
Prof Adil Haque of Rutgers University in the US notes that while SA has garnered broad international support for bringing the case to the ICJ, that does not necessarily mean they agree Israel is committing genocide.
“[While] many Western states support a ceasefire and think that Israel is violating international humanitarian law in a variety of ways, [those Western states] are not convinced that Israel is acting with genocidal intent,” Haque told Business Day. “This has been particularly the case for the US, a major supporter of Israel.”
SA brought its case to the ICJ in two parts. First, on an urgent basis, it seeks an interim ceasefire in Gaza. Second, if the court allows, SA will argue more fully later this year that Israel has committed genocide.
Israel’s operations in Gaza are a response to a Hamas-led attack on October 7 last year in which a reported 1,200 Israelis were killed and 240 kidnapped. Israel responded with an assault on Gaza, killing more than 25,000 people, according to Palestinian health officials’ most recent report. Israel maintains it is “making every effort to limit harm to the non-involved”.
SA says Israel has violated the Genocide Convention to which both countries are signatories. The ICJ is the only global forum that can resolve disputes between signatories to international conventions.
SA brought its case to stop what it believes are genocidal acts. Should the court order a ceasefire, further argument can be heard later on whether those halted military operations were part of a genocidal campaign.
Responses from many countries to SA’s case seem to show great support, but experts warn this must be read carefully.
“After the application SA presented it is difficult to deny that there is a cause for concern and urgent need for intervention,” Wits Law School senior lecturer Charmika Samaradiwakera-Wijesundara, said. The strength of SA’s arguments in such a powerful and recognised forum as the ICJ, she adds, means “the world is watching”.
Haque agrees, but points out the limits. “Countries like Belgium, Ireland, Norway, Slovenia and Spain express support for the ICJ, and hope for some kind of ceasefire order,” he says, “but stop short of accusing Israel of genocide.”
Gerhard Kemp from the University of the West of England in Bristol says the broad support for SA’s action by non-Western countries and those in the Global South “could potentially mark an important development in international law, where nonWestern states assert themselves as guardians of the ‘rulesbased order’.” Still, “we won’t see sanctions any time soon”, should the ICJ agree with SA.
Haque believes many countries have been “frustrated” with the UN Security Council, where decisions are thwarted by the veto power accorded to any of the council’s five permanent members — China, France, Russia, the UK and US. There is no such veto power in the ICJ, making it “the one other institution in the UN system that could issue a legally binding order that will stop the fighting” he said.
Chris Gevers from the University of KwaZulu-Natal school of law agrees that “there is a unique and overwhelming consensus within the international community ... about the urgency of the question about Palestine”. What makes SA’s case unique, Gevers notes, is that it involves the ICJ, an institution widely supported by the West, even if powerful Western states have been critical of SA.
He agrees with most experts that the ICJ will grant some form of provisional order against Israel on Friday.
Gevers believes the order will “cover the question of humanitarian relief” and other aspects, but does not think it will include a ceasefire.