The decision of the International Court of Justice (ICJ) of January 26 is historic. The preliminary ruling underlines the plausibility of South Africa’s accusation that Israel committed genocidal acts in Gaza. The six provisional measures were voted unanimously or by a large majority by the 17 judges, i.e. 16 to one or 15 to two (the judge appointed by Tel Aviv as well as the Ugandan judge not agreeing on all measures).
According to paragraph 30 of the judgment, “at least some of the acts and omissions that South Africa accuses Israel of in Gaza appear likely to fall within the provisions of the convention [sur le génocide] “. The judges therefore ask Israel to ensure “with immediate effect” that its military factions do not commit acts prohibited by the Geneva Convention, to provide emergency humanitarian aid to Gaza and to “take all measures measures” to prevent and punish direct and public incitement to genocide by members of its government.
The decision is historic, as Israel has long hidden behind the atrocities of the Holocaust to avoid accusations of crimes against humanity or war crimes in Palestine. The judges were not convinced by the “self-defense” argument of the Jewish state’s lawyers. This is a difficult argument to sustain when the Israeli response is at least 20 times the initial number of killings committed by Hamas since October 7. The law of retaliation stops well before 20 to one.
It should be noted that a preliminary judgment is not a verdict, but rather opens the door to a full trial. The ICJ, however, is not calling for a ceasefire, even after 130 days and more than 28,000 lives sacrificed. While we avoid limiting Palestinian deaths to statistics, putting so many zeros to qualify human lives is painful.
On the one hand, if the ICJ had ordered a ceasefire, Israel probably would not have complied. On the other hand, not having done so risks increasing violence on Palestinian soil. While the prospect of an Israeli military offensive in the city of Rafah, where hundreds of thousands of Palestinians are refugees, is criticized from all sides these days, it is doubtful that “all measures” will be taken to protect the Gazan population.
A court to regulate nations
The ICJ was founded in 1945 in the UN system and has 15 judges, plus one judge from each country involved in a dispute. It judges disputes between States, since the International Criminal Court deals with prosecutions against individuals. The ICJ has historically dealt with territorial disputes (such as that of the Preah Vihear temple, between Cambodia and Thailand) or accusations of genocide (such as those of the Gambia against Myanmar, in the case of the Rohingya people).
Many observers criticize the perceived subjectivity of judges, who are elected by the General Assembly and supported by the UN Security Council. The fact that the judge presiding the court (Joan E. Donoghue) is an American is also highly symbolic. Its position in this cause is a snub to the United States Department of State, which has described South Africa’s accusations as “unfounded.”
Although the ICJ’s judgments are “legally binding” in theory, its powers of imposition are almost nil. His 2022 provisional judgment ordering Russia to stop its invasion of Ukraine remained a dead letter. Each country can refuse to recognize the jurisdiction of the court or not appear for hearings. As a signatory to the Geneva Convention, Israel went to the Peace Palace in The Hague, Netherlands, to defend itself against South Africa.
So is the ICJ useful? One thing is certain, it does not operate in a vacuum. It is representative of a world where States predominate in multilateral decisions, with all that implies in terms of power games and political negotiations. However, it is far from useless, even if its effectiveness depends on the world in which it operates.
The Court issued interim measures in 10 cases from 1945 to 1995, but in 11 cases in just the last 10 years, evidence that it is becoming increasingly effective. Or, at least, increasingly used. The recent practice of developing preliminary judgments has also increased its effectiveness and credibility. The next step would be to expand its jurisdiction beyond states to include non-state actors and develop a more transparent process for electing judges.
While the United States and its allies like Canada claim to defend a multilateral order based on the rules of law, they must respect the Court’s decision. In the case of Canada, the “plausibility” of genocidal acts should be enough to cease all military support for Israel. An appearance of complicity would be disastrous for his image.
The final verdict will depend on a careful investigation and several years of waiting. Many other Palestinian mothers, fathers and children will have lost their lives by then. Supporting your political allies and not denouncing the massacre in this context seems ironic.