Waiting for the ICJ

Amira Howeidy , Wednesday 27 Mar 2024

Israel has escalated its war on Gaza in response to the ICJ’s provisional measures to prevent genocide a month ago. South African political analyst and former diplomat Zeenat Adam explains that Pretoria’s efforts to bring justice to the Palestinians can neither be achieved alone nor without reform of the international justice system to Al-Ahram Weekly.

Waiting for the ICJ

 

It has been a month since Israel submitted a report to the International Court of Justice (ICJ) on its compliance with the list of provisional measures ordered by the court to stop and prevent its genocide in Gaza.

The six binding measures included taking immediate and effective measures to enable humanitarian assistance and basic services, in addition to punishing incitement to genocide.

However, on the same day the court issued its order, Israel launched a campaign against the primary UN aid organisation for Palestinian refugees, UNRWA, to stop its efforts in Gaza. This was backed by the United States, bringing about famine conditions in the occupied enclave.

The Israeli Occupation Force’s (IOF) lethal bombing campaign of Gaza, now in its sixth month, has created one of the worst humanitarian crisis in the world, according to the rights group Amnesty International. With more than 30,000 killed and tens of thousands buried under the rubble, Israel, in the words of EU Foreign Policy Chief Josep Borrell, has turned Gaza into the world’s “biggest open-air graveyard,” as he said last week.

Amid an exponentially worsening situation in which hundreds of skeletal children are dying from malnutrition and IOF videos of missiles blowing up unarmed young people are brazenly flaunted with impunity, many are questioning the effectiveness of resorting to the ICJ to put the brakes on Israel’s genocidal war.

The IOF’s ongoing massacres at the Dar Al-Shifa medical complex in Gaza, where tens of thousands of displaced Palestinians sought shelter, have constituted some of the most horrific atrocities since the war began, according to eye-witnesses, including rape, field executions, and torture.

The cautious curve of expectations since South Africa invoked the Genocide Convention against Israel at the ICJ in January appears to have dropped drastically with the IOF’s defiance of the court’s binding orders and the absence of a response or action from the court for over a month.

Did legal experts speak too soon when they pinned their hopes on South Africa’s case against Israel at the court for alleged violations of the Genocide Convention and for requesting it to issue urgent provisional measures to stop the war?

In an interview with Al-Ahram Weekly, Zeenat Adam, a former South African diplomat and Johannesburg-based independent international strategist, argues against those who doubt the value of South Africa’s initiative at the ICJ.

Excerpts
 

It has been a month since Israel filed a report to the ICJ on its compliance with its provisional measures, while at the same time clearly defying its binding orders. South Africa responded with two requests to modify the provisional measures and received no response from the court. Was this the desired outcome sought by South Africa when it invoked the Genocide Convention?

South Africa is continuing to hold this case to be paramount and is maintaining the legal pressure through the court by invoking international law.

Some of the measures it has taken are quite extraordinary and unprecedented, especially in the third application to the court to modify the provisional measures already ruled on. The latest application emphasises the need for specific measures to prevent genocide in the light of the compelling reports of famine and the deliberate starvation of people as a weapon of war.

South Africa has expressed to the court in this latest application the view that it believes Israel is in contempt of the court’s orders. What we are witnessing is the flagrant and blatant disregard for the court. This once again shines a light on the warped global system that protects Israel and its collaborators.

The court is the preeminent legal authority in the world and should therefore be respected in terms of the treaties and UN Charter; however, Israel appears undeterred by the court’s ruling and is pursuing a policy of the elimination of the Palestinians while the world looks on.

While many around the globe followed the two-day hearings at The Hague earlier this year, the silence since then has been disappointing for those who had their faith restored in international law and pinned high hopes on the legal and political ramifications of South Africa’s action at the court. 

The fact that there is no enforcement mechanism or punitive measures that can be taken against Israel for violating the court’s orders, except through a UN Security Council ruling, is indicative of the need for reform of its structures. This is very much part of the South African policy, and while it does not deliver immediate help or recourse for the Palestinians, we have reached a turning point in the geopolitical landscape.

For those who are disappointed, it is important to understand that there will not be instant justice delivered. The case will be heard over years and may not deliver on the justice and accountability that Palestinians in Gaza need so desperately six months into the genocide.

We must, however, acknowledge and understand that the burden cannot rest on South Africa’s shoulders alone and other countries and parties may also petition the ICJ or the International Criminal Court (ICC) or explore other avenues to hold Israel accountable for the atrocities. We are equally disappointed that countries in the Arab world have not taken a strong stance. Where they have the capacity to apply significant pressure on Israel and the United States, they have instead pacified themselves with meek statements and no action.

I’m afraid this is a bitter awakening that the world is unfair and unjust. Even when the very mechanisms that the powers that be created and preached to the Global South that these courts and systems should be respected, ultimately these systems are a reflection of the broader global settler-colonial system that is hypocritical and that there are seemingly different rules for different players. South Africa, in its genuine bona fide attempt to support the Palestinians and try to prevent genocide in good conscience, has actually exposed the hypocrisy.

Many expected South Africa to refer Israel to the UN Security Council, which it has not done yet. What should we expect moving forward?

Any court order when it eventually rules on the crime of genocide will have to then be referred to the UN Security Council for implementation, and this is likely to be met with a veto unless the US changes its position as the protector of Israel.

South Africa’s legal team has not rested since their presentation before the court. In compiling the docket and preparing for the next hearing, the team has been gathering evidence, verifying narratives, consulting with experts, and preparing the case. It is unclear when the next date will be set by the court for a hearing of the main case.

It must be looked at in the broader context of geopolitical dynamics, and yes, it is disappointing but hardly unsurprising. The entire system was designed in a colonial paradigm and is reflective of that. In as much as there is a facade of justice, equality, freedom and accountability, it remains a smokescreen and is susceptible to manipulation by imperial authorities.

Israel knows well that its very existence was born out of the same system and that it has shared values – including white supremacy and settler colonialism – with the countries that continue to protect it.

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Timeline of the case lodged by South Africa at the ICJ against Israel for alleged breaches of the Genocide Convention
 

 

  • 29 December 2023 – Application to the Court instituting proceedings.
  • 11-12 January 2024 – Public hearings before the court by South Africa and Israel.
  • 23 January – Nicaragua applies to the ICJ to intervene.
  •  26 January – The court orders Israel to adhere to six provisional measures. The ICJ also finds that it has prima facie jurisdiction to hear the case lodged by South Africa against Israel for allegedly breaching the Genocide Convention.
  • 12 February – South Africa applies for urgent additional measures on the declared Israeli offensive in Rafah.
  •  15 February – Israel responds to South Africa’s application.
  • 16 February – The court rejects South Africa’s urgent application, stressing that Israel must respect the 26 January provisional measures.
  • 26 February – Israel submits a confidential report to the ICJ on compliance with the provisional measures.
  • 6 March – South Africa petitions the court on modifications to the provisional measures.
  • 15 March – Israel responds to the modification application denying the accusations.
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