The ICJ and ICC put Israel on notice but cannot stop the war
Expert comment
rgold.drupal
30 May 2024
Confrontation with the courts shores up Netanyahu’s supporter base – even as Israel’s international isolation deepens.
Last week was a difficult one for Israel in the international legal arena. The decision by Karim Khan, the Prosecutor of the International Criminal Court (ICC), to seek arrest warrants for leaders of both Israel and Hamas was quickly followed by an International Court of Justice (ICJ) ruling that Israel must halt any military offensive in Rafah that could harm civilians.
However, not everything is exactly what it seems, and the sad reality is that neither development will bring an immediate stop to the war.
The wording of the ICJ’s ruling is more a reiteration of how the war should be conducted than a judgment on its legality. South Africa, whose role in this legal saga has been characterized by some as one of self-aggrandisement, appealed to the ICJ for an interim order to compel Israel to immediately halt hostilities in the Gaza Strip, for which the judges provided only a limited remedy.
There are many compelling reasons to bring this horrific war to a negotiated cessation that will end the suffering of the people of Gaza and bring home the hostages. Nevertheless, the court has made an important distinction, even if not an explicit one, between Israel’s right to continue fighting Hamas and its responsibility to avoid harming civilians.
The ICJ ruling refers to the possibility of genocide without using the word. But it does quote the Genocide Convention directly, stating that ‘Israel must immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’. This was supported by 13 of the judges. Only two opposed it, including the former president of Israel’s Supreme Court, Aharon Barak.
The ICJ ruling states that Israel must actively ensure that in any Rafah operation the lives and basic needs of civilians are protected. The court stated that 800,000 Gazans have been displaced several times before and have already fled Rafah fearing for their lives; that many of these were responding to the IDF’s ‘encouragement’ to do so; and that most of them are living in inhuman conditions lacking access to food, water, sanitation, medical services and in most cases proper shelter.
The ICC arrest warrants sought against Prime Minister Netanyahu and Defence Minister Gallant on charges of crimes against humanity are still pending approval by the court’s judges and are unlikely to end in their arrests. But Israel’s vitriolic attack on the ICJ decision and the ICC Prosecutor smacks more of panic than conviction.
It was a mistake and politically naive for the Prosecutor to issue these warrants to Hamas and Israeli leaders at the same time. By doing so the warrants equate Hamas, proscribed in many countries as a terrorist organisation, with a democratic country (as fragile as that democratic system may be).
Yet it doesn’t reduce the severity of the charges against Israel and the need for the country to embark on a soul-searching exercise. In a matter of few months its international standing and reputation has nosedived, from enjoying almost universal sympathy and support after Hamas’s 7 October atrocities, to its leaders facing charges of crimes against humanity.
For that, the sixth Netanyahu government must take the lion’s share of the responsibility. It has waged a total war that has been left open-ended in terms of means and timespan, and conducted it with utter callousness when it comes to civilian lives in Gaza. This was tragically illustrated by the Israeli airstrike over the weekend which caused a massive blaze at a tent camp for displaced people in Rafah, leaving at least 45 people killed and many more injured
Moreover, Israel helped create the opening for both the ICJ and the ICC to apply their voice to matters concerning Israel. The Netanyahu government has assaulted the independence of the judiciary since it was formed early last year; and Israel’s High Court justices and senior law enforcement officials (in particular the Attorney General and the State Prosecutor) have not effectively investigated alleged war crimes by the IDF.
Had they done so, the ICC might not have become involved. The complementarity principle in international law states that ‘the ICC has secondary jurisdiction after national courts, and can only act in a given situation if the relevant states are unwilling or unable to prosecute the crimes within their jurisdiction.’