Decisions of the International Court of Justice Binding on Israel

Legal - January 29, 2024

The International Court of Justice (ICJ) decision in The Hague on genocide charges against Israel has not ended the war in the Gaza Strip as Palestinians and their supporters – including South Africa, which made the charges official and brought the case – had hoped.

The judges of the UN’s top judicial body did, however, satisfy the plaintiff with several interim measures that Israel should implement as a matter of urgency, including allowing the delivery of humanitarian aid to Palestinians and preventing genocidal acts that could be committed by the army in Gaza. South Africa’s most important request – an immediate ceasefire – is not, however, among the interim measures decided by the World Court. At the same time, the court rejected Israel’s request to annul the case, so the trial will continue to determine whether Israel is guilty of genocide.

Based on ICJ practice, the process could take up to three to four years, experts estimate, during which time the living conditions of the Palestinian population will increasingly deteriorate. But even for the Jewish people, the costs of this war are not insignificant, with the bills piling up day by day amid the dizzying collapse of the state’s economy in recent months. Under these circumstances, far from settling the conflict, the World Court’s decision in the South Africa v Israel case seems to reflect more of a stalemate – the term used to describe the situation in which the Israeli-Palestinian conflict has found itself for decades. However, according to some analysts, this decision of the World Court would, in practice, by the way it was worded, recognise the responsibility of politics, as an underlying factor, in deciding whether this war is intended to be a defensive one or one that violates human rights, by itself quoting in the provision statements by the head of Israel, Itzak Herzog, who said that not only Hamas but the entire population of Gaza is guilty of the attacks of the 7th of October 2023. According to this theory, this statement by the Israeli President has the potential to inflame the situation, but, more importantly, to confirm the hypothesis of collective punishment of the entire Palestinian community, in which context the self-defence of the state could appear to be a pretext. Or the comments of Western European chancelleries after the ICJ decision underline precisely this nuance: even the right to self-defence is subject to the rules of international law, and humanitarian law applies even in the fight against terrorists.

South Africa accuses Israel of violating the Geneva Convention

On the 29th of December 2023, South Africa filed a lawsuit at the International Court of Justice accusing Israel of violating the 1948 Geneva Convention on genocide, an agreement which came into being after the Holocaust and which the Jewish state has assumed. During preliminary hearings at the court in The Hague, lawyers in Pretoria accused Israel of “systematic” acts of genocide and “apartheid”. In support of the charges, they cited statements by Prime Minister Netanyahu, President Isaac Herzog and ministers, which they interpreted as instigating genocide. According to the accusers, Israel’s actions would seek “to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group”. Specifically, the indictment lists the killing of large numbers of civilians, especially children, the destruction of homes, the relocation of more than 2 million people, the blocking of access to humanitarian aid, food, water and medical care, including for pregnant women and newborns, which has had an impact on the birth rate among the Palestinian population, Al Jazeera reported.

On the other hand, the Israeli Foreign Ministry said in an official statement that South Africa was acting as “the right arm of Hamas” and that it wanted to make it easier for the terrorist organisation “to commit again the war crimes, the sexual crimes they repeatedly committed on the 7th of October”.

South Africa has always been friendly to the Palestinian cause and, while condemning Hamas attacks, has taken a stand against Israel, including at the diplomatic level. Some analysts have argued that this is all part of a strategy to provoke the US – Israel’s most important ally – added to the fact that the Pretoria regime is trying to improve its human rights record. As for the genocide charge, Israel’s position – expressed by Prime Minister Benjamin Nethanyahu – is that it is “not only false but also outrageous” and that the military campaign in the Gaza Strip is justified by “the Jewish state’s right to defend itself”.

Six steps Israel should take to limit the casualties of the military campaign in the Gaza Strip

In its preliminary ruling of the 26th of January, considered by many commentators on both sides to be “historic”, the ICJ stipulated that Israel must take “all measures” to “ensure, with immediate effect, that its army does not commit any act” of genocide that could fall under the Geneva Convention. It also requires Israel to take “immediate” measures to enable humanitarian aid to be provided to the Palestinian population. The panel issued a set of six measures Israel should take to limit the death and destruction caused by its military campaign in the Gaza Strip, citing in its ruling a series of figures that reflect the alarming scale of the tragedy there: more than 25.000 Palestinians killed and over 2 million displaced; 93% of the population facing unprecedented levels of hunger and malnutrition according to the World Health Organisation, over 2 million suffering physical and psychological trauma and a large number of children “terrified” according to UNRWA – the UN agency for Palestinian refugees.

“Israel must, in accordance with its obligations under the Genocide Convention with respect to the Palestinians in Gaza, take all measures within its power to prevent the commission of all acts falling within the scope of Article 2 of the Convention, in particular the killing of groups or members of the group, and causing serious bodily or mental harm to members of the group,” said Judge Joan Donoghue when delivering the court’s decision.

ICJ decisions are binding and cannot be appealed by the parties, but the court has no way of enforcing them, the only body that can enforce them being the UN Security Council. And it has already been convened by Algeria to discuss the situation, with the possibility that Israel will not implement the ICJ decision seen as a possibility, in the context of Prime Minister Nethanyahu’s statements that Israel will not stop the war, and National Security Minister Itamar Ben-Gvir’s – ironic – comments to the Court. The latter briefly posted the “Hague-Smague” comment on Platform X, interpreted as “a contemporary take on the historic “Um-Shmum” statement – a Hebrew expression of contempt for the UN attributed to David Ben-Gurion, one of Israel’s first prime ministers. The ICJ decision is seen by South Africa as a “decisive victory for the rule of law and an important milestone in the quest for justice for the Palestinian people”. Israeli Prime Minister Nethanyahu also welcomed the court’s decision, which did not call for a ceasefire.

“Like any country, Israel has a fundamental right to self-defence. The Hague tribunal has rightly rejected the outrageous claim to be deprived of this right,” Netanyahu reacted after the ICJ verdict, Agerpres reported, citing Reuters and EFE.

In an official reaction after the ICJ verdict, the US – Israel’s main ally and arms supplier – reiterated its position that it considers the genocide charges to be unfounded. The State Department added that the ruling is consistent with its view that Israel has the right to take steps to ensure that the Hamas attacks of the 7th of October are not repeated. Earlier, however, State Department spokesman Matt Miller had said Israel must prevent attacks on civilians and investigate allegations of genocide, Al Jazeera reported.

For its part, the EU stressed that ICJ decisions are binding and that it expects Israel to implement them.

“We note the ruling of the International Court of Justice in response to South Africa’s request for provisional measures. The European Union reaffirms its continued support for the International Court of Justice, the principal body of the United Nations,” the European Commission and Josep Borrell Fontelles, EU High Representative for Foreign Affairs and Security Policy, announced in a joint statement.

“The orders of the International Court of Justice are binding on all parties and they must comply. The European Union expects them to be fully, immediately and effectively implemented,” the European Union stressed, according to the press release quoted by Agerpres.

Individually, however, some Member States have expressed concern about the “desperate” situation of civilians in Khan Yunis province, the epicentre of the war in southern Palestine, drawing attention to the fact that self-defence is also subject to the rules of international humanitarian law.

This is also the case for Germany, which reacted through the voice of foreign minister Annalena Baerbock:

“Even the right to self-defence is subject to rules, and international humanitarian law also applies to the fight against terrorists. Israel must respect this like all other states in the world, even in a difficult context where Hamas is breaking all the rules and using people as human shields,” said Annalena Baerbock, AFP reported.

The official reactions to the ICJ ruling and the tragic situation in Khan Yunis are being matched, in the background, by the decision of more and more financial supporters of UNRWA to suspend their funding. The tone has been set by the US, one of the largest contributors to its budget, which has announced it is suspending funding for the UN agency amid Israeli allegations that UNRWA employees may have been involved in the 7th of October Hamas attacks.

After the US, five other countries – Canada and Australia, followed by the UK, Italy and Finland – have announced that they are suspending financial support for UNRWA, with a sixth country, Slovenia, announcing that it may do so, but only after it has more information about the possible involvement of UNRWA employees in the attacks. UNRWA, set up in 1948 to help Palestinian refugees after the creation of the state of Israel, plays an important role in humanitarian assistance in the Gaza Strip. The agency employs 30,000 people and provides shelter for 1.4 million Palestinians out of about 2.3 million living in Hamas-controlled territory.

The EU, the biggest donor to UNRWA’s budget

Beyond the individual contributions of European countries, the EU has become the largest contributor to UNRWA’s budget in recent years. From the EU budget, €1.1 billion has been allocated for the period 2021-2024 for refugees in Gaza, the West Bank, East Jerusalem and other states. The money is administered by the Palestinian Authority, led by Fatah, Hamas’s main opponent, and UNRWA. However, this financial support has been criticised in the European “hot seat” debate over the 7th of October attacks, with some calling for a freeze on funding amid suspicions that the money may be going to the terrorist group. Four of the member states that also have individual contributions to Palestine – Austria, Germany, Denmark and Sweden – have announced they will review the amount. After a standoff over differing positions on the issue among EU bloc members, EU diplomacy chief Josep Borrell announced that the EU would continue to support Palestinian refugees, but that support would be reviewed, saying checks would be made to see if there was any leakage of funds to Hamas.  The decisions reflect a victory for Israel, which has called for the cancellation of financial support to UNRWA and a halt to its activities.

“We have been warning for years: UNRWA perpetuates the refugee problem, obstructs peace and serves as a civilian arm of Hamas in Gaza,” Israeli Foreign Minister Israel Katz said, adding: “We will work to build bipartisan support in the United States, the European Union and other nations globally for a policy aimed at stopping UNRWA’s activities in Gaza.”

At the same time, Tel Aviv wants “to make sure that UNRWA will not be part” of the peace settlement in the Palestinian territory. It is premature, however, to speak of a peace solution in the war between Israel and the Islamist movement Hamas. Prime Minister Nethanyahu rejected, days before the ICJ decision, a new peace plan, which the US came up with in the current context, in which states in the region would be willing to offer Israel security guarantees. However, Washington pointed out that no long-term security guarantees for Israel were possible, nor, in the short term, a reconstruction of the Gaza Strip without recognition of the Palestinian state.

Nethanyahu told the Americans that he ruled out any post-war solution involving recognition of a Palestinian state and pledged to continue the war “until the total annihilation of Hamas”, Al Jazeera reported. This decision to continue the armed conflict indefinitely raises countless questions for the channel’s analysts, who note the collapse of the Israeli economy, with tourism on the rocks and small entrepreneurs on the verge of bankruptcy – and mounting war bills amid a $15bn defence budget.

“How much longer can Israel afford war in Gaza?” headlined Al Jazeera recently.

Last but not least, the decisions of Nethanyahu – who has been facing a corruption trial since 2020 – are questioned by Israel’s left-wing intellectuals, his main critics. At the same time, the rejection of the peace solution fuels the old theory that the long-serving Israeli politician never really wanted an end to the war with Hamas. The idea has also been exploited in his writings by Amos Oz, the Nobel Prize-winning journalist and writer, one of the most famous voices of the left-wing intelligentsia in recent decades. In his writings, Oz argued that Nethanayahu kept Hamas in power because the Israeli right and the Islamist organisation allegedly had a common goal: never to reach a two-state solution.