Israel wins the battlefield. It is losing the bench and the ballot box

Israel can still win the war in Gaza. It cannot win the argument that follows it. That is the gap accountability advocates keep pointing to, and it is the gap Israel’s own allies in Europe are now widening.

The war has split into three fronts. The military one, in Gaza, Israel controls. The legal one, in The Hague, and the diplomatic one, across European capitals, are slipping away.

Military power buys territory. It does not buy legitimacy. And legitimacy, not tanks, is what determines whether a state can trade, arm itself, and sit at a table after the guns fall silent.

South Africa’s genocide case was the catalyst. It turned a bilateral war into a multilateral legal question, and once European governments started filing declarations of their own, that legal question became a diplomatic one that no single ceasefire can settle.

The process as punishment

South Africa filed its genocide case against Israel at the International Court of Justice in December 2023. The court has never ruled on the merits. It did not need to. Three rounds of provisional measures ordered Israel to prevent genocidal acts and let humanitarian aid through. Israel largely ignored them. The case kept moving anyway.

Even October’s ceasefire changed nothing on paper. President Cyril Ramaphosa told South Africa’s parliament in October that the truce “will have no bearing on the case that is before the International Court of Justice.” Israel finally filed its response this March, after two extensions pushed the original deadline back by more than seven months. Oral hearings are not expected before 2027. A final judgment could land in 2028. The clock itself has become the pressure. Every extension Israel requests, every year the docket ages, adds to a record that keeps circulating long after any single verdict would.

Where the accountability gap sits

This is where MEMO’s readers should look hardest, because the gap between legal finding and government action has never been wider than it is right now, in the country that hosts the court itself.

In November, the Hague Court of Appeal ruled explicitly that there is “a serious risk that Israel will commit genocide against the Palestinian population in Gaza.” It was the first time a national court had said so in those words. Then it dismissed the case, anyway, ruling that the Dutch government retains “considerable discretion” over arms exports and foreign policy. A court can now say the word genocide and still leave the weapons flowing. That is not a legal failure. It is a policy failure sitting on top of a legal finding, and it is precisely the kind of gap a genocide convention is supposed to close.

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The Netherlands did not come to this reluctantly. Alongside Iceland, it intervened directly in South Africa’s case, arguing the court should weigh “starvation or the deliberate withholding of humanitarian aid” as evidence of specific intent. Ireland intervened too, asking the ICJ to broaden the legal definition of genocide itself, warning that too narrow a reading “leads to a culture of impunity.” Eighteen states have now joined the case in some form. None of that has yet forced any of their governments to change what they actually sell, ship, or sanction.

Spain closes the gap between word and policy

Spain is the exception, and it is instructive precisely because it shows what the other front looks like when rhetoric and policy align.

Prime Minister Pedro Sánchez told parliament in May that Spain does not “do business with a state that commits genocide.” In September he went further, announcing a total arms embargo, a ban on Israeli-settlement imports, and a block on ships fueling Israeli military vessels docking in Spanish ports.

He called Europe’s broader response “a failure,” comparing the bloc’s tolerance of Gaza casualties with its swift sanctioning of Russia over Ukraine. He has since called for Israel’s expulsion from international sport, on the same grounds Russia was expelled in 2022.

Whatever one makes of Sánchez’s politics, the comparison he draws is the one Israel’s defenders cannot answer. A European government sanctioned one state for invading a neighbour and continues arming another found by its own courts to carry a serious risk of genocide. That asymmetry, not any single ICJ ruling, is the diplomatic cost accumulating in real time.

The cascade is not hypothetical

Ramaphosa framed the stakes plainly at the UN in September, pointing to “growing global consensus that Israel is committing genocide in Gaza.” He has since folded South Africa’s case into a wider bloc, the Hague Group, alongside Colombia, Malaysia, and others explicitly organised to enforce accountability outside the court itself. That is the cascade the original synthesis warned about: a legal filing becomes a diplomatic coalition, and that coalition starts writing its own rules on trade and arms sales, with or without a verdict from the bench.

Israel will likely hold Gaza militarily for as long as it chooses to. What it is losing, filing by filing and embargo by embargo, is the room to operate anywhere else once it stops. A verdict from The Hague was never the real threat. The real threat is a continent’s governments deciding, one arms contract at a time, that they no longer need to wait for one.

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