On Friday (26 January) the International Court of Justice (ICJ) in the Hague ruled on whether emergency measures are required until a final decision is taken on the South Africa’s genocide case against Israel. The judges ruled that Israel must act to stop genocide in Gaza and allow the flow of humanitarian aid and basic services. Although this verdict is legally binding on the parties involved and a step in the right direction, the ICJ lacks enforcement power. The Court needs the U.N. Security Council (UNSC) to enforce its decision through mechanisms such as sanctions or even military intervention, however, the UNSC is unlikely to do so given the United States’ traditional shielding of Israel through the veto power. Moreover, the Court did not demand a ceasefire that would require Israel to stop its operation in the Gaza Strip. This disappointed many who consider an immediate ceasefire by all parties as being essential in order to end the suffering on civilians.
Thus, the main question is what does this ruling actually entail for the current drastic situation in the Gaza Strip and the international order? There are a few possible scenarios outlined below:
Firstly, there could be an increase of international pressure backed by these provisional measures that could push Israel into following through on the Court’s ruling. The International Court of Justice is the main body of the U.N. that tries to assure that states follow international law. As such, if states disregard the Court’s legally binding decisions, the credibility and trust of the international legal order would be severely undermined. In addition, there is a strong humanitarian case for the measures imposed; the court found that there was a plausible case of genocide given the increasing amount of civilian loss, the forced internal displacement of 85% of the population, and the dehumanising statements of the Israeli officials. Therefore, hesitation from the states to back the court’s decision would undermine international legal order and it would signal acceptance of Israel’s possible genocidal acts. There have already been steps in this direction; the European Commission has released a statement (26 January) saying that “Orders of the International Court of Justice are binding on the parties, and they must comply with them. The European Union expects their full, immediate, and effective implementation”.
Secondly, this case has received international attention as it became a medium for the global south to assert itself in the international order, which is often perceived as Western-dominated. South Africa making a case for genocide against Israel, a well-known ally of the West, posits that all countries should respect international law and that there should be no double standards. Furthermore, when Germany defended Israel in the case, Namibia criticised the decision of its ex-colonial power. Namibia’s president released a statement (14 January) saying that “Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza”.
Thirdly, Israel could choose to ignore the provisional measures set by the ICJ by arguing that it is already consistent with international law. Given that the ICJ did not demand an immediate ceasefire and its measures have been regarded as rather general, it is likely that they may not change Israel’s strategy of war. Israel’s prime minister Benjamin Netanyahu released a statement (26 January) calling the ruling “outrageous” and that the war will continue while “[we] will do our utmost to keep civilians out of arms way”. Israel will not be the first to ignore ICJ provisional measures. Russia in 2022 completely disregarded ICJ’s demand for a ceasefire in Ukraine while the U.S. has ignored at least two ICJ orders; the first in 1986 when it was ordered to stop its support for the Nicaraguan rebels and the second in 2018 when the court demanded the U.S. to suspend its sanctions on Iran.
All these scenarios may complement one another, however, what it is important to remember is that all countries have a duty to uphold international law and that all people have a right to life. Currently, the situation in Gaza has been described by UN officials as “hell on earth”. Amnesty International has stated that Israel’s military operation has killed more than 26,000 Palestinians, mostly civilians and that some 10,000 people are believed to be still under rubble. Furthermore, 1.8 million Palestinians have been internally displaced and are deprived of access to adequate food, water, shelter, sanitation, and medical assistance. As such it is crucial that Israel, Hamas, and other Palestinian armed groups immediately suspend all military operation in Gaza and that remaining civilian hostages are released.