The court emphasised that all parties to the conflict were bound by international humanitarian law, saying it was “gravely concerned about the fate of the hostages abducted during the attack on Israel on October 7, 2023 and held since then by Hamas and other armed groups”.
It went on to call for their immediate and unconditional release.
The issue though, is that the ICJ has jurisdiction over states, not over acts committed by Hamas or other Palestinian groups.
Rewind to November 2023, when UN experts called for “prompt, transparent and independent investigations into allegations of war crimes and crimes against humanity”.
Unlike the ICJ, alleged war crimes fall under the International Criminal Court (ICC), where individuals - even Hamas - could be prosecuted.
Traditionally, the ICC steps in when its members - again, we’re talking countries - can’t or won’t prosecute themselves.
The ICC has been investigating the occupied Palestinian territories in regard to possible war crimes and crimes against humanity committed since 2021. The issue is Israel doesn’t recognise the court, and even so, the court’s lack of police capability means member states are left to make arrests.
Both circumstances highlight one fundamental problem - the strength of international law fundamentally requires countries to come to the party.
Rewind to this year’s ICJ case where the South African Government claimed Israel’s sustained military operations on Gaza following the Hamas’ attack on October 7 amounted to genocide, or an intention to commit genocide.
As a matter of “extreme urgency” pending the finding, South Africa also requested the court to direct Israel to end all military operations, and for the country to facilitate (and not undermine) humanitarian efforts.
Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide is defined as acts of killing, causing harm, or deliberately inflicting “conditions of life calculated to bring about [a targeted national, ethnic, racial, or religious group’s] physical destruction”. These actions must be done with intent.
In its application to the court, South Africa claimed Israeli forces had killed more than 21,110 Palestinians (including 7729 children), and injured 55,243.
With 355,000 homes either destroyed or uninhabitable, it meant 85 per cent of the population has been displaced, lawyers argued. It should be noted that the ICJ in its decision said figures relating to the Gaza Strip could not be independently verified.
In its evidence, South Africa highlighted speeches made by some Israeli political leaders and military personnel that advocated for the erasure of Gaza.
It also highlighted the destruction of hospitals, its lack of food, water, medicine, and fuel distribution, and overall hampered humanitarian efforts.
Israel fiercely defended its position, saying speeches were taken out of context and attacks on Gaza were directed at Hamas.
Civilian casualties were an unfortunate but incidental consequence of military operations in an urban environment, lawyers argued. Evidence that Israel had delivered food, water, medical supplies, and fuel to Gaza illustrated Israel’s recognition of the rights of Palestinian civilians in Gaza to exist.
With an interim decision now in the ether, the question of whether Israel’s actions amount to genocide is still to be determined. Even so, there’s a fundamental problem. The ICJ lacks teeth.
Other cases of interest
We saw this in March 2022, a month after Russia invaded Ukraine.
The ICJ ordered Russia to cease hostilities, following an appeal by Ukraine. Russia rejected the ruling saying the ICJ required consent from the parties to engage in the process.
In 2020, the ICJ imposed provisional measures directing Myanmar to prevent genocidal acts against Rohingya.
It also required Myanmar to submit implementation reports. Although legally binding, Human Rights Watch has claimed continued abuses against the Rohingya people.
In the 1986 case of Nicaragua vs the United States, the ICJ ruled that US support for the Contras was illegal and ordered the US to pay reparations to the Sandinistas.
The US rejected the judgment. The same situation occurred in 1984 when the US didn’t recognise the ICJ’s jurisdiction over a Bay of Maine dispute with Canada.
Where to next?
In this month’s case before the ICJ, Israel has actively engaged in the process, which is promising from a credibility and reputational standpoint. But, as we’ve seen in cases before, any decision could still be rejected.
Sure, there’s the UN Security Council, but it’s limited by its veto mechanism.
With much of the Western world’s representatives either in favour of Israel’s position or remaining silent, the prospect of UN Security Council engagement enforcement seems unlikely.
While it’s jarring that Israel, a country born in response to the Holocaust, has found itself in the International Court of Justice, it’s also jarring to see the international legal framework’s limitations in mitigating human suffering.
Perhaps South Africa’s lawyer, Blinne Ni Ghralaigh, KC, put it best, “some might say that the very reputation of international law, its ability and willingness to bind and to protect all people equally, hangs in the balance”.
Sasha Borissenko is a freelance journalist who has reported extensively on the legal industry.
