ICJ is ‘likely’ to grant some of SA’S requests
Observers believe the court might order Israel to provide humanitarian aid in Gaza, but are not so sure about an order for it to cease fire. By
The International Court of Justice (ICJ) is likely to order Israel to take some provisional measures to reduce the suffering in Gaza, as requested by South Africa on 11 January in the case it brought to the court accusing Israel of violating the Genocide Convention. But it is less certain that the 17 judges will order the provisional measure that matters most: an immediate halt to Israel’s military assault on Gaza.
This is the view of several lawyers, diplomats and experts. The ICJ judges have until 5 February to announce any provisional measures they might decide upon, Daily Maverick was told. They could announce them earlier, but legal sources say they will probably take the full 24 days because of the great seriousness and difficulty of this case. The judges began deliberating on 15 January.
The nationalities of the judges could be decisive in any ruling. Although they are all supposed to act objectively as individuals, most observers believe that in practice they follow the orders of their capitals. Israel suspects this will count against it, though that is by no means certain.
After announcing provisional measures, if any, the court will then ponder the substance of the case to determine conclusively whether or not Israel is carrying out genocide in Gaza. That could take years.
The case
Last week, the ICJ judges heard testimony by South African lawyers arguing that Israel was committing genocide against the 2.3 million people of Gaza.
South Africa asked the judges to issue several provisional measures, the main one being for Israel “to immediately suspend its military operations in and against Gaza”. It also asked the ICJ to order Israel to stop committing genocide against the Palestinians.
Israel’s lawyers said an armed conflict between Israel and Hamas was taking place in Gaza, not a genocide, and accused South Africa of presenting a distorted picture of the conflict as though Israel was the only party fighting in Gaza. They rejected the provisional measures sought by South Africa.
William Schabas, a Canadian international law professor, lawyer and veteran litigator before the ICJ, said he gave South Africa’s lawyers an A for their performance last week and Israel a C-minus – “and that’s because I don’t like to fail anyone”.
‘Feel-good’ measures
Nevertheless, he suggested, the ICJ judges might opt to order only “feel-good” measures for Israel, such as “not to commit genocide”, rather than ordering the most effective measure of demanding that Israel immediately cease its military assault on Gaza.
But he told the French activist Frank Barat on the latter’s Youtube show that it would be hard for the judges to order Israel to stop all military activity “because of the self-defence argument”.
However, it would also be hard for the ICJ judges to reject South Africa’s request for other provisional measures such as ordering Israel to allow much greater access to food, water, medication and other humanitarian aid in Gaza. “And that’s a strong case and one they’re very likely to get.”
Such measures would still affect Israel because they would be viewed in the court of public opinion as being orders against the State of Israel. Other lawyers have said any ICJ provisional order against Israel would imply that the court believed there was a prima facie case of genocide against Israel.
Israel would prefer no provisional measures, but it believes it is unlikely that the ICJ will completely decline to take on the case. A former Israeli diplomat told Daily Maverick that Israel was not ruling out the possibility of the ICJ ordering a ceasefire, because of the national composition of the court.
The ‘uncertain’ judges
Israel puts the judges from Morocco, Somalia, Lebanon, China, Russia and South Africa’s ad-hoc judge in the South African column. It puts the judges from the US, Australia, Germany and its ad-hoc judge in its own column. This leaves Japan, Slovakia, Brazil, India, Jamaica, Uganda and France, whose judge, Israel says, is originally from Egypt, “to play for”. These“uncertains” could swing it either way.
Daniel Levy, president of the Us-middle East Project, told Newzroom Afrika that, given the composition of the court and the fact that its president is American, “there will be a predisposition among many of the judges to see this through the lens of this is a terrorist organisation against a state which is trying to act in its legitimate self-defence”.
Cathleen Powell, University of Cape Town professor of international law, also speaking on Newzroom Afrika, said one of the strongest arguments Israel had made was that Hamas was not before the court and so, if the ICJ issued an order to Israel to stop fighting, this would leave it defenceless against Hamas, which would be able to continue fighting.
But she said the ICJ should at least order Israel to provide or allow much greater humanitarian access. Powell believed the ICJ should take up the case if only to objectively test Israel’s claim that almost all the death and destruction in Gaza was being caused by Hamas – by using civilians as human shields, setting booby traps, misfiring rockets, etc.
Proof of dispute
Powell and Levy cautioned that the ICJ might refuse to adjudicate the case on the technical grounds that South Africa had failed to prove it had a dispute with Israel before resorting to the ICJ, as ICJ rules require.
Israel’s advocate Malcolm Shaw suggested that South Africa’s Department of International Relations and Cooperation had bungled this requirement by ignoring several requests by Israel to discuss South Africa’s genocide allegations before Pretoria took its case to the ICJ on 29 December last year.
A South African diplomatic source dismissed Shaw’s argument. He mentioned, for instance, a request that Pretoria had made to Israel on 17 October for a phone call between President Cyril Ramaphosa and Prime Minister Benjamin Netanyahu. “Israel did not reply to this request,” he said.
Meanwhile, Netanyahu vowed on 13 January to continue the war in Gaza regardless of what the ICJ decides.