How a slow-moving court became the center of the world’s hottest debate
Hamas’s October 7 attack on Israel had many unpredictable consequences, but the elevation of the International Court of Justice to global public attention is particularly unexpected.
In December, South Africa filed a case against Israel alleged violations of the Genocide ConventionAnd The court held hearings last week on a separate issue concerning the Israeli occupation of Palestinian territories.
These two cases have turned the court into a new arena for political disputes and legal arguments over Israel’s actions in Gaza, where more than 29,000 people have been killed, many by heavy Israeli bombardment. And while the court’s enforcement powers are limited, at a time of intense interest in the conflict, the public hearings give it significant power to shape and reflect global opinion.
The Court’s high-profile role is partly a coincidence: the UN General Assembly asked the court in The Hague to issue a non-binding opinion on the legality of the Israeli occupation. January 2023. It is unlikely that we would be discussing these hearings in detail if war had not broken out in the meantime and if South Africa had not brought its genocide case to the same court.
But for now, the court, the UN’s highest judicial body, has been thrust into the spotlight and asked to intervene in a closely watched global conflict as hostilities continue.
This has created a highly unusual situation. International legal cases often move too slowly to have a real-time effect on current events, and often deal with dry and arcane topics such as fishing disputes.
In particular, the procedural rules for both the Genocide Convention case and the advisory hearings have allowed dozens of countries to participate despite having no direct involvement in the Israeli-Hamas conflict or occupation.
“What we see here, both with the South African case and now with the advisory proceedings, is that this is really being presented as a global problem,” said Yuval Shany, a professor of international law at the Hebrew University of Jerusalem.
A judicial spotlight
The South African case alleges that Israel committed genocidal acts in Gaza, in violation of the Convention on the Prevention and Punishment of Genocide. (Any state party to that treaty can bring a case before the international court, so South Africa could do so even though the country is not directly involved in the conflict.) In mid-January, the court held public hearings.
Israel denied the allegations, arguing that statements made by Israeli government and military officials were taken out of context, and that the military took steps to save civilian lives. After the hearings, the Israeli government released a number of documents 30 secret orders which he said demonstrated efforts to minimize casualties.
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Just under a month after the case was filed, the court issued a series of “interim measures,” similar to a temporary injunction, ordering Israel to refrain from genocidal acts, prevent and punish incitement, and provide humanitarian aid to Gaza to allow. The court, which did not require Israel to halt its military offensive, also ordered Israel to send a report within a month detailing the measures it had taken to comply with the provisional measures, a deadline that expires on Monday.
The other issue dates back to early 2023, when the UN General Assembly asked the court to issue a non-binding opinion on the legality of Israel’s occupation of Palestinian territories, following a General Assembly resolution on the same issue.
The hearings involving testimonies from more than fifty countries, almost all of which were critical of Israel. South Africa received widespread attention for his testimony as it once again stood up for Palestinian interests. The United States and Britain were Israel’s most prominent defenders. They asked the court not to order an end to the occupation, arguing that doing so would endanger Israel’s security.
Israel is defending itself in the genocide case, a particularly sensitive subject for the country. “Given the history of the Jewish people, it is not surprising that Israel was one of the first states to ratify the Genocide Convention without reservation,” Tal Becker, an Israeli lawyer, told the court in his speech. pick up line.
However, the country has chosen not to participate in the hearings on its occupation, calling the procedure unjustified and biased. Israel delivered a letter to the court arguing that the focus of the proceedings failed to “recognize Israel’s right and obligation to protect its citizens.” or to take into account years of agreements with the Palestinians to negotiate “the permanent status of the territory, security arrangements, settlements and borders.”
But Israel may also have decided to avoid the hearings because they place the current government in a political bind at home, Shany said. Many of these legal arguments that could improve Israel’s chances of success in court would not sit well with the domestic voters of Israel’s right-wing government. That may have been the reason Israel chose not to appear in the hearing on the legality of the occupation of Palestinian territories, he said.
“Internationally, they should reaffirm their commitment to a roadmap that could lead to a two-state solution,” he said. “And they should draw attention to the Oslo Accords, etc., while reaffirming the Palestinian right to self-determination. Which they have done on many occasions. These are their legal claims. But that wouldn’t work well in our own country.”
The court of public opinion
While the cases are clearly intended to have a political impact, the court is believed to be less subject to the kind of political scrutiny typical of other UN bodies. Judges are not meant to be representatives of the states they come from, and do not necessarily vote in favor of their home states. For example, Judge Aharon Barak, the Israeli Holocaust survivor whom Israel selected as an ad hoc judge for the genocide case, voted in favor of two of the interim measures.
And while Israel has often successfully lobbied the United States to veto UN Security Council resolutions that could open the door to sanctions, no such vetoes exist at the International Court of Justice.
But the court also has no authority to impose sanctions. The country does not have a police force or the ability to enforce sentences. And the advice on the occupation will be just that: advisory, without binding orders.
Kate Cronin-Furman, a professor of political science at University College London, said Israel’s record suggests the country may not be particularly sensitive to direct pressure from the court. When the International Court of Justice previously ruled that Israel’s conduct in the occupied territories was unlawful, it had only a “marginal effect” on its policies, she said.
This may be less true for the genocide case. The reporting requirement imposed by the court in its interim measures had created a “monitoring effect,” Shany said, that already appears to be having some political impact on Israel.
Shany pointed out a recent one letter by the Attorney General of the Israel Defense Forces, who warned troops against using excessive force against civilians, looting and other violations of the law, as an example of such political consequences. The letter said such actions cause Israel and its military “strategic damage in the international arena, the severity of which is difficult to overestimate.”
Cronin-Furman said the legal proceedings could also have a powerful indirect effect if it shifts public opinion or policy among allies Israel relies on for support, including the United States.
“Other countries that have historically supported Israel will be more sensitive to the rulings of the International Court of Justice,” she said. “If international public opinion coalesces around a consensus that Israel’s behavior is beyond all bounds, those governments may publicly reduce or withdraw their support and/or privately pressure the Israeli government, which would be far more likely to shape Israeli incentives than the direct impact of a ruling by the International Court of Justice.”
The provisional measures issued in January have not yet had that effect on the United States, which did exist last Tuesday vetoed a UN Security Council measure calling for an immediate ceasefire in the Gaza Strip. It was the only vote against the measure. However, the United States is circulating its own resolution calling for a temporary ceasefire “as soon as practicable,” the first time it has used the term “ceasefire” since the current conflict began, and Israel would also rule out carrying out an attack in Rafah under the current circumstances.
Legal experts have cautiously welcomed the new focus on the court. “It should be an aspiration of the international community, of all states, that politically charged issues of immense moral importance are deliberated and evaluated by an impartial legal body,” said Janina Dill, professor at the University of Oxford and co-director of Oxford University. Institute for Ethics, Law and Armed Conflict. “This is how the rule of law works, this is how the international legal order works should work.”