The ICJ and Israel’s military offensive against Gaza

South Africa’s lawsuit against the occupation state of Israel at the International Court of Justice (ICJ) over its violations in Gaza of its obligations under the Genocide Convention requested the court to outline measures that would protect the Palestinians from further and irreparable harm and ensure Israel’s compliance with the terms of the convention. The South African legal team also called for an immediate stop to the military offensive carried out by the occupation army in the Gaza Strip.

The submission of the lawsuit was an honourable act that will certainly be written in bold in the pages of South African history.

In appreciation of its position, we must not overlook the fact that the republic is a founder member of the BRICS bloc of countries whose policies tend to reject European and US capitalism that the Prime Minister of Israel, Benjamin Netanyahu, represents.

The ICJ’s preliminary ruling stressed the need for Israel to take all measures needed to prevent and punish any statements or actions that could be considered incitement to genocide. It also stated the need to take all measures to ensure the entry of humanitarian aid, not to discard any evidence that could be used in the case against it, and to submit a report to the court in a month showing how it has implemented these measures and provisions. It is as if the court is providing the occupation with a detailed plan and enough time to wipe its fingerprints from the crime scene and to escape with the lowest possible cost to its status and reputation.

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There are voices calling on those following the issue around the world to be rational and not be carried away by their emotions. They believe that the political and diplomatic acceptance by the Republic of South Africa, representatives of the Palestinian people and representatives of other countries to be sufficient justification to consider the legal move to be a positive step that can be built upon.

Such voices defended the ruling, and stressed that simply accusing the occupation state of committing the crime of genocide was not an easy step. They not only rejoice in it, but also anticipate harsh repercussions against the heads of the countries that supply the occupation with money and weapons. However, they ignore the fact that such a measure is 70 years too late, and that the countries that supply and finance Israel and its occupation of Palestine have been beyond accountability for decades.

These solidarity voices interpreted the ruling as implicitly requiring a cessation of military operations, but did not explain why the court did not spell this out clearly, as it did with its ruling on Russia’s aggression against Ukraine. That decision, of course, has been ignored by Russia, as if ICJ rulings are merely ink on paper.

Those defending the court’s decision not to call for a ceasefire overtly justify their position by saying that the international system is complex in terms of the powers of its agencies and is not perfect, and that it has loopholes that can be used to benefit the case. This is a fact. The international system is indeed not ideal. This is not due to a flaw in its planning and implementation, but to the interlinked and conflicting interests of the major powers that established it, their military power, and the extension and strength of their influence. Hence, the deliberate loopholes in it cannot be exploited or penetrated by smaller countries, because they will be closed to them, either economically or militarily.

Some idealists are optimistic about the court’s refusal to dismiss the case against the occupation, and I am one of them, but some note that the court has no choice but to accept it because it is a signatory to the Convention on the Prevention of the Crime of Genocide. It is an astonishing irony that the entity for which the term genocide was coined and the convention preventing this crime was supposed to protect it is now being accused of the same.

The occupation entity used to describe the UN and its agencies, including international courts, as biased in favour of its enemies; Israel thus boycotted it and refused to recognise its authority, but it opted to appear before the ICJ judges and try to defend its position. Does this indicate the weakness of its position or its arrogance, feeling of power and control over all of occupied Palestine, and its desire to end the issue by declaring its sovereignty over it all? Is the settler-colonial state using its efforts to eliminate Hamas as a cover to invade Gaza and get rid of any possible “two-state solution”?

The ICJ does not have complete separation of powers, as the permanent members of the Security Council can veto the enforcement of its rulings, and its jurisdiction is not binding in itself. It has no way to force the occupation entity to comply, and it has no way to enforce its ruling, so it depends on the occupation state’s compliance and pressure from international actors.

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The International Criminal Court is more effective in dealing with grave violations committed by individuals; it had the courage to issue an arrest warrant against Russian President Vladimir Putin for attacking Ukraine. Although the court determined that it has jurisdiction over crimes perpetrated by Palestinian nationals or committed “in whole or in part” on Palestinian territory, an investigation has made little progress. This is despite hundreds of lawyers and human rights organisations from around the world filing a lawsuit with the ICC Prosecutor demanding the opening of an investigation into the atrocities committed by Israelis against the Palestinians. They need our support, given that Israel is allowed by its allies to act with impunity, meaning that it has, so far, evaded any accountability for its actions.

Ultimately, I do not rely much on an international system established to protect the interests of major countries, bearing in mind the old maxim that the victors draw the map. I am, however, hoping and praying that security and stability will be restored to innocent people who have been displaced and stripped of even the barest necessities of life.

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