Gaza, Israel and the ICJ: An exercise in soft power

In one of the most serious challenges to Israel’s legitimacy in the international community as it perpetrates what can only be described as genocide and ethnic cleansing in Gaza, the African continent is once again leading the charge to ensure an actual rules-based world order is adhered to. Not only did the Gambia step in and engage the International Court of Justice (ICJ) on the question of Myanmar’s genocide against the Rohingya Muslim people in 2019, but now Israel is being taken to task at the UN’s highest court by none other than South Africa for violations of the Convention for the Prevention and Punishment of the Crime of Genocide.

South Africa was itself a former apartheid state, and one would think the South Africans recognise that foul evil when they see it. But, beyond apartheid alone, Israel – a signatory to the convention – has demonstrated a pattern of behaviour since October last year that has been marked by genocidal statements and actions. And, unlike the United States that makes appeals to a rules-based international order as a mantra to hide the fact that it is one of the biggest violators of international law in the world today, South Africa has demonstrated moral courage in standing up to Israeli aggression and doing its bit to ensure that Tel Aviv cannot simply flout the law with impunity.

While this interim application for provisional measures will not determine whether or not genocide has indeed taken place from a legal standpoint, this is a significant moment in the Palestinian-Israeli struggle and demonstrates how the tide has turned against Israel in the court of public opinion, ushering in a new era of soft power that is unafraid to stand up to Tel Aviv and its supporters.

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An anarchic world order

International law has always been an ethereal thing: you can know what it is, without ever being able to quite grab a firm hold of it. The reason for that is that there is a powerful intersection between international law and international relations.

For example, while a state is the ultimate power and arbiter of the law within its own borders, and can enforce legal judgments against its subjects or citizens, there is no equivalent power above the modern nation-state. The UN, for instance, is not a world government, but rather a forum for states to interact. Often, it is the powerful who decide and heavily influence what international law is or ought to be, and can even ignore it at their leisure.

The most infamous example of this was when the United States launched an illegal invasion and occupation of Iraq in 2003 without acting in self-defence and certainly without UN Security Council (UNSC) authorisation. This constituted the crime of a war of aggression, according to the International Commission of Jurists in Geneva, not to be confused with the ICJ currently hearing South Africa’s application against Israel at the Hague.

Due to the US’ immense political, economic and military power, no one dared to ensure that it would abide by international law. It simply swept in, decimated Iraq, occupied it and has now left a decades-long legacy of destruction, despair and corruption that is rarely seen across the planet today – a gaping wound on the record of the international community’s commitment to law and order.

Similarly, Israel, while not as powerful as the US, wields enormous influence on the world stage. It has sat on influential bodies that determine and shape international law, such as being chair of the UN’s Sixth Committee in 2016. Again, Israel is one of the world’s most determined violators of international law, and yet continuously finds itself in a position to determine the jurisprudence of bodies concerned with ruling on matters of international law.

Palestine wins, win or lose

Let us not forget that the ICJ itself is a politicised body and is not necessarily independent. The bench consists of 15 judges, representing the five permanent UNSC members, and ten other states. Any decision is dependent on a simple majority vote. For example, a similar application by Ukraine against Russia led to an ICJ order in March 2022 for Moscow to cease military activities, with the judges from Russia and China being the only two voting against. A cursory glance at the other judges involved, as well as the Russian and Chinese official political positions on Ukraine, should tell you all you need to know about why.

South Africa’s application for provisional measures to order Israel to cease military activities until the ICJ can determine culpability for genocide is therefore also a political game, where judges cannot be described as being independent. South Africa’s submissions yesterday were extremely compelling, canvassing not only international law, but drawing reference to another freedom fighter once deemed a terrorist, Nelson Mandela, as well as Martin Luther King’s famous quote about the arc of the moral universe bending towards justice. On the precedent set by the Gambia v Myanmar alone, there should be an order for provisional measures while the case to determine Israel’s genocidal culpability continues. But the international political game is an amoral one, and justice merely a theoretical notion, not a moral and judicial absolute.

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However, there are only two real outcomes in the immediate term: should South Africa be successful in getting provisional measures ordered, it will be a major blow to Israel as it would have to either accept the ICJ’s orders (which will save civilian lives) or else prove to everyone that it could not care one jot about international law.

Similarly, and with the absolute mountain of inculpatory evidence against Israel’s highest office holders and military personnel, should the ICJ dismiss South Africa’s application, yet another mortal wound would have been dealt to the international “rules-based” order, destabilising the global system upon which the US sits at its apex, shielding itself and its allies from international law while brandishing that same law as a sword against its enemies when it suits its purposes.

Either way, this is a soft power coup for the Palestinian people and all those who have strived for their just cause for the last century, and yet another step on the ultimate path of liberation, freedom and dignity for all.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.